Opinion
No. 22851-7-III
Filed: March 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-03204-3. Judgment or order under review. Date filed: 03/17/2004. Judge signing: Hon. Kathleen M. O'Connor.
Counsel for Appellant(s), Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Office, 1100 W Mallon Ave, Spokane, WA 99260-0270.
After receiving an informant's tip that Janetta and Edwin Curfew had a marijuana grow operation on their rural property, Spokane County officers checked power records and discovered that the Curfews' power usage far exceeded their neighbors'. They also determined that the Curfews had no reported income. The officers executed a search warrant on the Curfew property and seized a large quantity of marijuana. Ms. Curfew's motion to suppress the evidence was denied and she was convicted on stipulated facts of one count of manufacturing a controlled substance and one count of possession of a controlled substance with the intent to deliver. One of the conditions of her sentence was that she had to provide a biological sample for the state deoxyribonucleic acid (DNA) data bank.
On appeal, Ms. Curfew contends the affidavit for the search warrant lacked sufficient information to support probable cause that her property was the site of criminal activity. She also challenges the constitutionality of RCW 43.43.754, which requires all felons to submit a biological sample for DNA identification analysis. We find that the search warrant was invalid and reverse and dismiss. Because we need not reach the constitutional challenge of RCW 43.43.754 to resolve this case, we decline to do so. City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995).
Facts
In early March 2003, the Spokane County sheriff's office received a letter from an anonymous citizen that implicated the Curfews in a marijuana grow operation. As reported in the affidavit of probable cause, the letter stated:
Although Mr. and Ms. Curfew lived together in Mr. Curfew's residence, they had divorced in 2001. Mr. Curfew died some time before Ms. Curfew's trial and conviction.
Ed and Jan Curfew (in the letter it was spelt [sic] Cerfew) live in Spokane County on a dirt road in a small house. It looks like a converted two car garage. I do not know if there is an address. I believe mail comes to a P.O. Box in Nine Mile Falls. Neither work. They have a growing operation of about 30 plants and derive their income from the operation. There are guns in the house and have guard dogs.
Clerk's Papers (CP) at 26. The letter was attached to a map of the Nine Mile Falls area with a dot that indicated the area where the Curfews reportedly lived.
Deputy Mark Smoldt began investigating the information contained in the letter. He discovered that the Curfews listed their address as a post office number in Nine Mile Falls. Deputy Smoldt visited the area identified on the informant's map and found a residence that appeared to be a garage converted into a house. The house was on a dead end dirt road posted with `no trespassing' and `beware of dog' signs. CP at 28. Behind the house were several sheds and an outbuilding. A blue pickup registered to the Curfews was parked in the driveway. According to the assessor's office, the Curfews' residence was 500 square feet.
Deputy Smoldt obtained the Curfews' power records and the power records for a nearby residence. These records showed that in January 2000, the Curfews used 1060 kilowatts. By January 2001, the kilowatts used by the Curfews had jumped to 4240, and the rate in January 2003 was 5660. In comparison, the January 2003 kilowatt usage at the neighboring residence, which has nearly twice the living space of the Curfews' home, was only 980. For the period between July 2002 and January 2003, the Curfews' power consumption ranged from a low of 3830 kilowatts to a high of 6290 kilowatts. The power consumption for the neighboring residence during this period ranged from 350 kilowatts to 1110 kilowatts. When Deputy Smoldt flew over the Curfew property to take overhead photographs, he did not see anything that would account for the high consumption of electricity.
Additionally, Deputy Smoldt checked the Curfews' employment records through the employment security office. He found that Mr. Curfew had no reported income since January 2000. Ms. Curfew's only reported income was approximately $8,700 in 2000.
Finally, the deputy noted that two pickups registered to the Curfews had been observed at a garden supply store located in Spokane Valley. The sheriff's office had been tracking vehicles parked at the garden supply store for several years because that establishment sold items used to grow marijuana, including high intensity halide and sodium light bulbs. Of over 40 search warrants executed by the sheriff's department for manufacturing marijuana, at least 90 percent involved purchasers of equipment from the same garden supply store.
After this investigation, Deputy Smoldt prepared an affidavit for a warrant to search the Curfew premises, surrounding grounds, and any outbuildings to search for evidence of marijuana production and distribution. A search warrant was issued and executed in March 2003. The executing officers found marijuana plants growing in three outbuildings, bags of harvested marijuana in the house, a daily planner that contained a list of buy/sell amounts, and large sums of money.
Mr. and Ms. Curfew were arrested and charged with one count of manufacturing a controlled substance (marijuana), former RCW 69.50.401(a) (1998), and one count of possession of a controlled substance with intent to deliver, former RCW 69.50.401(a). Ms. Curfew was tried separately. Before trial, she moved to suppress the evidence on the basis that the search warrant was issued without probable cause. Finding sufficient corroborating evidence from the police investigation to support the reliability of the informant's information, the court denied the motion to suppress.
Ms. Curfew then agreed to a bench trial on stipulated facts. She was convicted of the charges and sentenced to 10 days on each count. The trial court noted at sentencing that Ms. Curfew was required to submit a DNA sample. She raised no objection. This appeal followed.
The Affidavit of Probable Cause
Ms. Curfew first challenges the sufficiency of the affidavit to support probable cause for issuance of the search warrant. She contends the affidavit fails to support the reliability of the confidential informant or to corroborate the informant's tip by independent police investigation. The trial court entered findings of fact and conclusions of law on Ms. Curfew's motion to suppress the evidence obtained in the execution of the search warrant. Because the trial court's findings are not disputed, they are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review de novo the trial court's conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). One of those conclusions was that probable cause existed for the issuance of the warrant.
`A search warrant may be issued only upon a determination of probable cause.' State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003); U.S. Const. amend. IV; Wash. Const. art. I, sec. 7. Probable cause is established when the affidavit supporting the warrant sets forth facts and circumstances that establish `a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location.' Jackson, 150 Wn.2d at 264 (citing State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002)). We review the magistrate's decision to issue a warrant for abuse of discretion, giving deference to the magistrate's decision. `The affidavit is evaluated in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant.' Id. at 265.
Recently we adopted a de novo review of the magistrate's determination of whether probable cause supports a search warrant. See State v. Boyer, 124 Wn. App. 593, 605, 102 P.3d 833 (2004), petition for review filed (Wash. Feb. 16, 2005) (No. 76648-7). This standard was based on language found in In re Detention of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002), which held that controlling authority of the Washington Supreme Court favored de novo review of a magistrate's probable cause determinations. Since Peterson, however, two Supreme Court cases have applied the abuse of discretion standard to the magistrate's decision whether to issue a warrant. Jackson, 150 Wn.2d at 265; Vickers, 148 Wn.2d at 108. Neither Jackson nor Vickers cited Petersen. Apparently the Supreme Court has retreated from the de novo review adopted in Petersen and has settled on abuse of discretion as the standard for reviewing a magistrate's decision as to whether probable cause supports a search warrant. Jackson, 150 Wn.2d at 265.
Here, the affidavit in support of the search warrant offered information obtained from a confidential informant's letter. To establish probable cause based on an informant's tip, the affidavit must demonstrate the basis for the informant's information and the basis for the officer's conclusion that the informant was credible (the two prongs of the Aguilar-Spinelli test). Vickers, 148 Wn.2d at 112; State v. Cole, 128 Wn.2d 262, 287, 906 P.2d 925 (1995). Usually both prongs of the Aguilar-Spinelli test must be established by information provided to the magistrate; however, any deficiency in one or both prongs may be cured by independent police investigation that corroborates the informant's tip. Vickers, 148 Wn.2d at 112. This investigation must point to indications of criminal activity along the lines indicated by the informant. State v. Huft, 106 Wn.2d 206, 210, 720 P.2d 838 (1986); State v. Rakosky, 79 Wn. App. 229, 239, 901 P.2d 364 (1995). Corroboration of innocuous facts is insufficient to corroborate the informant's tip because such facts show only that the informant had personal knowledge of the defendant, not necessarily of the defendant's illegal activity. Huft, 106 Wn.2d at 211.
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
The police investigation here provided this additional information: (1) the Curfews had been arrested for non-drug-related crimes in the past; (2) they had a post office box and physical address in Nine Mile Falls; (3) their power usage was high and consistent throughout the year from July 2002 to January 2003; (4) this power usage substantially increased from January 2000 to January 2003; (5) a close neighbor with a house almost twice as large as the Curfews' used significantly less power from July 2002 to January 2003; (6) the Curfew residence looked like a converted garage and had beware of dog signs; (7) Deputy Smoldt saw nothing that explained why the Curfews had used so much power; (8) over three months earlier, the Curfews' vehicles were seen parked at a garden supply store that sells equipment that can be used in the manufacture of marijuana (such as high intensity halide lights); and (9) the Curfews had no reported income since Ms. Curfew's last paycheck in 2000. Much of this information merely corroborates innocuous facts that could be known by anyone: a description of the Curfews' property, an indication that they may have dogs, and the fact that their vehicles had been parked at a particular store three months earlier. The remaining facts do not corroborate the informant's statement that the Curfews were manufacturing marijuana.
Generally, increased power usage is insufficient to establish probable cause of a marijuana growing operation. Huft, 106 Wn.2d at 211; State v. McPherson, 40 Wn. App. 298, 301, 698 P.2d 563 (1985). As noted in Huft, id., there are simply too many plausible explanations for increased electrical usage. Although Deputy Smoldt did not see a hot tub or any other large electrical appliance that would account for increased power usage, he noted that the Curfews had several outbuildings on their property. He provided no information that would allow a comparison of the power used on similar properties with the same number of structures wired for electricity. Further, the affidavit does not indicate whether the neighboring property also had outbuildings or even whether the neighbors lived in their house year-round. Consequently, the Curfews' high power usage constitutes an innocuous fact. State v. Murray, 110 Wn.2d 706, 712, 757 P.2d 487 (1988).
Lack of reported income is also insufficient evidence that the Curfews were growing marijuana as a cash crop. Any information used by police to corroborate an informant's tip must point to the actual criminal activities alleged by the informant. State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984). The fact that the Curfews had no reported income, yet apparently could afford to pay high power bills, supports a reasonable belief that they were surviving on unreported income, maybe even illegal income. However, it does not even inferentially support probable cause that they grew marijuana for that income.
The remaining facts discovered in the police investigation also do not support probable cause to issue a search warrant for a marijuana growing operation. The Curfews' arrest history is irrelevant, especially considering it does not include arrests for the manufacture of marijuana. And parking their vehicle at a garden supply store that sells equipment used to grow marijuana is obviously a benign act.
Even allowing deference to the magistrate and resolving all doubts in favor of the warrant, State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994), we find that the police investigation did not establish probable cause to support the issuance of a search warrant. The investigation simply did not provide probative indications of criminal activity along the lines suggested by the informant. Jackson, 102 Wn.2d at 438 (quoting United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972)). Because the affidavit did not establish probable cause, the warrant should not have been issued. Consequently, the trial court erred in denying Ms. Curfew's motion to suppress all evidence seized. McPherson, 40 Wn. App. at 301. In light of this holding, we decline to address Ms. Curfew's challenge to the collection of a DNA sample. City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995).
Reversed and dismissed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., Concur.