Opinion
No. 52644-8-I
Filed: December 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-00739-7. Judgment or order under review. Date filed: 07/09/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Mark David Mestel, Attorney at Law, 3221 Oakes Ave, Everett, WA 98201-4407.
Counsel for Respondent(s), John Jeppe Juhl, Attorney at Law, M/S 504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
David Swanson was convicted of one count of possession of marijuana with intent to manufacture, sell, or deliver within 1,000 feet of a school in violation of RCW 69.50.401(a) and RCW 69.50.435(a) based on evidence seized from his store, the 10th Street Market, and his car parked on the street in front of the store. Swanson claims the affidavit in support of the search warrant did not establish probable cause because (1) the odor of raw marijuana in a grocery store is insufficient as a matter of law to establish probable cause and (2) the affidavit did not identify the source of the odor. Swanson also challenges the warrantless search of his car with a dog trained to detect narcotics. We affirm the trial court's decision denying Swanson's motion to suppress and Swanson's conviction.
FACTS
In March 2002, the resource officer at Everett High School contacted Officer Hendrickson of the Everett Police Department to report two students had independently told him that an employee at the 10th Street Market was selling marijuana to customers. According to the students, the employee behind the front counter sold marijuana in an espresso cup to customers who said, '?I would like your finest $40 espresso.''
The students asked to remain anonymous for fear of retaliation.
Clerk's Papers (CP) 36.
The 10th Street Market is a small, 'mom and pop' corner grocery store located within sixty feet of Whittier Elementary School in Everett. Officer Hendrickson verified that David Swanson owned the 10th Street Market and obtained a copy of Swanson's driver's license photo.
CP 65.
On March 5, 2002, Officer Hendrickson, dressed in civilian clothes, went into the 10th Street Market to purchase a soda. Immediately after entering the store, he smelled the strong odor of raw marijuana. Candles and incense were burning near the front counter and there was only one employee in the store. The employee stayed behind the counter the entire time Officer Hendrickson was in the store. Officer Hendrickson recognized the employee as Swanson from the driver's license photo.
The next day, Officer Hendrickson asked Officer Bosman to go to the 10th Street Market. Dressed in civilian clothing, Officer Bosman entered the 10th Street Market and immediately smelled the strong odor of raw marijuana. Candles and incense were again burning near the front counter. Based on Swanson's driver's license photo, Officer Bosman identified the only other person in the store as Swanson. Swanson stayed behind the counter the entire time Officer Bosman was in the store.
On March 21, 2002, at the request of Officer Hendrickson, Detective Fifield went to the 10th Street Market. Detective Fifield has extensive training in recognizing, identifying and field testing marijuana. When he entered the store, Detective Fifield immediately smelled the strong odor of raw marijuana. Swanson was the only other person in the store. While purchasing a soda, Detective Fifield recognized Swanson from the driver's license photo.
Based on the information from the officers and the information from the two students, Officer Hendrickson prepared an affidavit in support of a warrant to search the 10th Street Market and seize marijuana and evidence related to the illegal manufacture and sale of marijuana. In the affidavit, Officer Hendrickson described the training and experience of each of the three officers in detecting the smell of raw marijuana. A Snohomish County judge issued the search warrant on March 22, 2002. That same day, Officer Hendrickson and members of the Everett Police Anti-Crime Team executed and served the warrant on Swanson at the 10th Street Market. Swanson and a customer were the only ones in the store. Swanson told Officer Hendrickson he was preparing coffee for the customer. On the counter in front of Swanson were two identical coffee cups. Officer Hendrickson opened the lids of the cups and found coffee in one and a baggy, containing approximately 1/2 oz. (14 grams) of raw marijuana in the other.
Officer Eby used Dutch, a narcotics dog, to search the store. The store had little inventory, mainly soft drinks and candy. Some of the shelves and one of the coolers were completely empty. Dutch 'alerted' to the presence of drugs in a file cabinet located under the front counter. When Officer Eby searched the cabinet, he found twenty-one baggies of marijuana inside a plastic container in the top drawer. The lower drawer of the cabinet held a money bag, containing $1,225 in cash. A small scale was located on a shelf near the counter. In the cash register, Officer Hendrickson discovered notations for amounts of money owed Swanson in increments commonly used in drug transactions.
When a narcotics dog displays certain conduct indicating the presence of drug odors, it is referred to as an 'alert.' A narcotics dog 'alerts' by intense sniffing with a closed mouth and a tail flag, a head snap towards the particular location of the odor, and a specific alert by scratching the location of the odor with a paw. CP 39.
The marijuana weighed approximately 5.1 ounces total, which is approximately 145 grams.
After the search of the store, Officer Eby went outside and used Dutch to sniff the exterior of Swanson's car that was parked on the street in front of the store. Dutch 'alerted' to the trunk of the car. Officer Eby then called a judge to obtain another warrant to search the car. Officer Eby reiterated the information relied on for the warrant to search Swanson's store, described the evidence seized from the store, and told the judge that the narcotics dog had indicated drugs were present in the trunk of Swanson's car. Officer Eby also described his and Dutch's extensive training in narcotics investigation. The judge approved a warrant to search Swanson's car. Officer Eby found a lunch box in the trunk containing approximately 13 to 14 individual baggies of marijuana.
The car was parked approximately fifty feet from the store.
Officer Eby has been the handler of a narcotics dog since 1998 and has accrued 3,000 hours of specialized training in canine narcotic detection theory and application. He is also trained in drug interdiction tactics and is certified in drug identification and field testing of suspected narcotic substances. Dutch successfully completed a ten-week course in detection of controlled substances at the Cedar Home Kennels. Dutch has consistently demonstrated his ability to identify narcotics, including marijuana, on over two thousand occasions.
Each bag contained approximately one ounce of marijuana (approximately 369 to 397 grams total).
Swanson was charged with one count of possession of marijuana with intent to manufacture, sell, or deliver marijuana within 1,000 feet of a school in violation of RCW 69.50.401(a) and RCW 69.50.435(a). Pretrial, Swanson moved to suppress the evidence seized from the 10th Street Market, contending that Officer Hendrickson's affidavit did not establish probable cause for the search warrant. Swanson also moved to suppress the evidence found in the trunk of his car based on the warrantless search with the narcotics dog. Swanson's motion to suppress relied on the affidavits of Officers Hendrickson and Eby. The trial court denied Swanson's motion to suppress the evidence found in the store and the car.
After a stipulated bench trial on agreed facts, the court found Swanson guilty of one count of possession of marijuana with intent to manufacture, sell, or deliver within a thousand feet of a school in violation of RCW 69.50.401(a) and RCW 69.50.435(a). The court sentenced Swanson under the Special Drug Offender Sentencing Alternative. Swanson appeals and challenges the trial court's decision to deny his motion to suppress and his conviction.
RCW 9.94A.660. Swanson was sentenced to 26 months, 13 months of incarceration and 13 months in community custody.
ANALYSIS
Swanson contends the affidavit in support of the search warrant for the 10th Street Market did not establish probable cause because (1) the odor of raw marijuana in a store open to the public is insufficient as a matter of law to establish probable cause for a search warrant and (2) the affidavit did not identify the source of the marijuana odor.
An affidavit in support of a search warrant must describe facts and circumstances sufficient to establish a reasonable inference that there is criminal activity and contraband at the place to be searched. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Whether the facts set forth in an affidavit establish probable cause is a legal conclusion, requiring de novo review. In re Detention of Peterson, 145 Wn.2d 789, 800, 42 P.2d 952 (2002) (citing Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L.Ed.2d 911 (1996)). Affidavits in support of a search warrant should be viewed in a practical and common sense manner and not hypertechnically. State v. Olson, 73 Wn. App. 348, 355, 869 P.2d 110 (1994). Any doubts should be resolved in favor of the warrant's validity. Id. at 354; State v. Petty, 48 Wn. App. 615, 622, 740 P.2d 879 (1987). Swanson concedes that the Washington Supreme Court in Cole held that a trained officer's detection of marijuana odor by itself provides sufficient evidence to establish probable cause to justify issuing a search warrant. Cole, 128 Wn.2d at 289. Prior to Cole, this court reached the same conclusion in Olson, 73 Wn. App. at 356. Swanson tries to distinguish Cole and Olson factually by arguing that unlike the odor of marijuana from a residence under the control of a specific person, the odor of raw marijuana in a store open to the public cannot establish probable cause for a search warrant. See Cole, 128 Wn.2d at 289; Olson, 73 Wn. App. at 356.
We give deference to a magistrate's or trial judge's factual determinations. See In re Detention of Peterson, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002) (citing Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).
The State concedes that the anonymous student tips alone would not have established probable cause under Aguilar-Spinell. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969). But the State correctly asserts that the independent police investigations corroborated the students' information. See State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002).
Swanson also asserts that unlike the present case, Cole and Olson involved marijuana grow operations, but Swanson does not present any argument on this issue. Where a party fails to present any relevant argument on an issue to which he or she has assigned error, that issue is effectively abandoned and the court need not address it. R.A. Hanson Co., Inc. v. Magnuson, et. al., 79 Wn. App. 497, 505, 903 P.2d 496 (1995); see also RAP 10.3(a)(5).
In Cole, the Court held that the affidavit in support of a warrant to search for marijuana in a residence and two vehicles that were often parked at the residence established probable cause. Cole, 128 Wn.2d at 268-70. The affidavit in Cole, relied on information from a citizen that the residence was used to grow marijuana and that an officer smelled the odor of marijuana while in a neighbor's yard ten feet from the residence. Id. at 267, 269. The affidavit also described the officer's training and experience in detecting marijuana and with marijuana grows operations. Id. at 289.
In Olson, this court decided that an affidavit in support of a warrant to search a mobile home and a brick building suspected of being used to grow marijuana established probable cause. Olson, 73 Wn. App. at 350, 356. The affidavit in Olson contained information from an unidentified person about the use of the mobile home to grow marijuana, evidence of an inordinate amount of power usage at the residence, and the officer's description of the marijuana odor he smelled coming from the mobile home and the brick building. Id. at 350-51.
The decisions in Cole and Olson that a trained officer's detection of marijuana odor is sufficient to establish probable cause for a search warrant are not limited to residences. While there may be circumstances where the detection of odor in a store open to the public is insufficient to establish probable cause, here, as in Cole and Olson, Officer Hendrickson's affidavit established probable cause. In his affidavit Officer Hendrickson describes the information from the two students that an employee at the 10th Street Market was selling marijuana from behind the counter. He describes the three separate occasions when trained and experienced officers each immediately smelled a strong odor of raw marijuana after entering Swanson's store. Officer Hendrickson's affidavit states that each time Swanson was the only employee in the store. The affidavit also describes Officers Hendrickson, Bosman, and Detective Fifield experience and training in narcotics recognition, identification, packaging, use, sale, and distribution and in the execution of numerous search warrants for narcotics. Based on these circumstances Officer Hendrickson's affidavit established probable cause to issue the search warrant to search the 10th Street Market.
Alternatively, Swanson contends the affidavit was inadequate because it failed to identify the source of the marijuana odor. When there is no particular source to which the odor of marijuana can be traced, odor alone is insufficient to establish probable cause. However, a magistrate may make a reasonable inference as to the source of the odor when there are additional facts or circumstances indicating the source. See State v. Johnson, 79 Wn. App. 776, 782, 904 P.2d 1188 (1995); State v. Petty, 48 Wn. App. 615, 622-23, 740 P.2d 879 (1987).
Officer Hendrickson's affidavit contained additional facts and circumstances from which a magistrate could reasonably infer the source of the odor. It is undisputed that Swanson owned the 10th Street Market. The three officers independently smelled the strong odor of raw marijuana immediately after entering the 10th Street Market on three separate occasions. On each occasion Swanson was the only employee in the store, and on at least two of those occasions, Swanson was the only other person in the store.
When viewed in a common sense and practical manner, the facts described in the affidavit create a reasonable inference that the source of the marijuana odor was connected to Swanson and established probable cause for the search warrant.
We affirm the trial court's decision to deny Swanson's motion to suppress the evidence. The evidence recovered from Swanson's store supports his conviction for one count of possession of marijuana with intent to manufacture, sell, or deliver within 1,000 feet of a school in violation of RCW 69.50.401(a) and RCW 69.50.435(a).
Because Swanson's conviction for one count of possession of marijuana with intent to manufacture, sell, or deliver within 1,000 feet of a school is affirmed based on the evidence seized from the 10th Street Market, we need not address Swanson's challenge to the legality of the warrantless search of his car with a narcotics dog.
APPELWICK and BECKER, JJ., Concur.