Opinion
No. 36579-1-II.
September 30, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 06-1-00128-7, Matthew L. Clucas, J. Pro Tem., entered June 1, 2007.
UNPUBLISHED OPINION
In August 2006, police arrested David Hill for suspicion of manufacturing marijuana after officers obtained a search warrant, searched Hill's home, and discovered evidence of an indoor marijuana grow operation. Before trial, Hill submitted a motion to suppress evidence seized in the search, as well as statements he made at the time of the search. The trial court denied Hill's motion. After a stipulated bench trial, the trial court found Hill guilty of manufacturing marijuana. Hill now appeals the trial court's denial of his suppression motion, arguing that (1) the warrant affidavit contained false, misleading, and unlawfully obtained information; and (2) the statements he made at the time of the search were both the product of police interrogation and incriminating. Hill's arguments are unpersuasive and we affirm.
FACTS
On April 29, 2006, Port Townsend police officer Jason Greenspane interviewed Bob and Lori Witheridge and Violet Swinhoe after the Witheridges' son informed police that their neighbor, David Hill, was possibly growing marijuana inside his Monroe Street home. Hill's neighbors told Greenspane that they often witnessed Hill bringing truckloads of fertilizer onto his property and transport covered loads of unidentifiable items from the premises late at night. Furthermore, the neighbors reported that high intensity lights were often visible through skylights and windows located on the top floor of Hill's residence, despite the dark, translucent material that covered the windows, and that Hill had installed a large propane tank in the residence during a recent remodel of the home. Finally, they reported that Hill had recently completed some new construction on his roof and was "constantly hooking up vehicle[s] to wires that run into the house." Clerk's Papers (CP) at 33.
Bob Witheridge told Greenspane that this generally occurred once a month and that he had not "seen any gardening around the outside of Hill's house that would warrant the amount of fertilizer that Hill receive[d]." CP at 31.
In his report, Greenspane observed that although he could not "identify what it was exactly . . . it appeared it could be used for venting out of the residence." CP at 229.
On May 5, 2006, at approximately 1:50 a.m., Greenspane returned to Hill's neighborhood and walked the streets to "see if [he] could smell the odor of fresh marijuana coming from the area around the residence." CP at 34. The weather that morning was calm, with a slight easterly breeze. He was subsequently joined by Officer Jason Avery and Cadet Brandon Przygocki. Greenspane, Avery, and Przygocki all smelled the odor of fresh marijuana when located east of Hill's home. Avery and Przygocki also reported seeing a bright blue light emanating from a skylight at Hill's residence.
On July 10, 2006, Greenspane contacted detectives assigned to the Olympic Peninsula Narcotics Enforcement Team (OPNET) regarding Hill's possible indoor marijuana grow operation. On July 17, 21, and 24, OPNET officers visited the area surrounding Hill's home; they did not, however, smell marijuana or observe other suspicious activity during those visits. Three days later, OPNET detective Michael Grall requested Hill's electric consumption records from Puget Sound Energy under RCW 42.17.314. Puget Sound Energy provided several years' worth of Hill's monthly electrical use records to OPNET on July 27, 2006.
OPNET detective Michael Grall later testified that he did not smell the odor of marijuana during his July 17 visit to Hill's neighborhood. He stated, "I did not smell any odor of marijuana that night, [but] didn't expect to because of the atmospheric conditions." Report of Proceedings (RP) at 100-01.
RCW 42.17.314, which related to certain electrical utility records, was repealed, effective July 1, 2006. OPNET requested Hill's electrical utility records by faxing an administrative subpoena directly to Puget Sound Energy. At the hearing, the State argued that although it initially proffered its request prior to July 1, Grall's request was drafted and sent after the law officially changed (apparently rendering this method of obtaining power records illegal). On appeal, the State argues that the method by which OPNET obtained the records was legal and that their inclusion was not reckless.
On July 28, 2006 at approximately 4:00 a.m., OPNET detectives Brian Raymond and Charles Fuchser visited Hill's neighborhood. The weather that morning was clear and there was a slight westerly breeze. At a spot "approximately due east" of Hill's home, the detectives smelled the odor of fresh marijuana and concluded that the odor was coming from Hill's home and not from any of the surrounding residences. CP at 214.
Raymond and Fuchser also walked along Reed Street, from west to east. As soon as they approached Monroe Street, they could hear "an electrical humming sound" coming from the area of Hill's residence. CP at 214. As they approached the north side of the house, the noise became louder. The detectives stopped several times, attempting to focus on the exact location of the sound's source. Raymond and Fuchser ultimately determined that the noise was "definitely" coming from the north side of Hill's home. CP at 214. In addition to the humming, Fuchser was able to differentiate a noise that sounded like "air movement that had a noise pattern to it, that could result from a large bladed fan, turning at a low to medium speed." CP at 214.
Although the map attached to the warrant affidavit is dark, it appears that Jackson Street runs parallel to and is northeast of Monroe Street. Madison Street runs parallel to and is west of Monroe Street. Both Root Street and Reed Street, which run east to west, intersect Monroe Street and Jackson Street. Thus, Hill's home is located on Monroe Street, with Jackson Street located to the east, Madison Street located to the west, and Reed Street located to the north.
Fuchser noted that "he [had] never heard a residence make that loud of [an] electrical noise, except when he [was] actually standing inside an indoor marijuana growing operation." CP at 215.
On August 2, 2006, OPNET applied to Clallam County for a warrant to conduct a search of Hill's home. The accompanying warrant affidavit was signed by Grall and Raymond and was organized into six sections: (1) initial information told to Port Townsend Police Department; (2) summary of smell detected by Greenspane, Avery, and Przygocki; (3) Hill's background; (4) utility consumption at Hill's residence; (5) smell of green growing marijuana detected coming from Hill's residence by Raymond and Fuchser; and (6) information known to affiants concerning indoor marijuana growing operations based on training and experience.
Within these sections, the warrant affidavit incorporated the information obtained by Greenspane, Avery, Przygocki, Raymond, and Fuchser. A graph illustrating kilowatt usage at Hill's home from December 2004 through June 2006 and an aerial photograph of Hill's home, marked to show the locations at which Greenspane and Avery reported smelling the odor of fresh marijuana, were also attached. Finally, the warrant affidavit contained background information regarding Hill's criminal history, information known to the affiants concerning indoor marijuana grow operations, and affidavits of expertise from the officers involved in the case. After reviewing the warrant affidavit, Judge Kenneth Williams of Clallam County Superior Court issued a search warrant.
The warrant affidavit indicated that, at some point, Hill was convicted of violating the Uniform Controlled Substances Act. Greenspane told OPNET that the authorities discovered a marijuana grow operation at Hill's home after responding to a fire at the residence. Hill subsequently pleaded guilty to possession of marijuana over 40 grams.
The following day, on August 3, 2006, OPNET executed the search warrant. Early that morning, Grall, Raymond, and a group of OPNET officers knocked on Hill's door and Hill answered. The OPNET search team then entered the home, handcuffed Hill, and placed him under arrest for suspicion of growing marijuana. As officers searched Hill's home, they encountered a locked door on the second floor. Grall approached Hill, told him that he had discovered a locked door, and asked Hill how to get into the room. He then asked Hill whether there was a key and, if so, where it was located. At this point, none of the officers had read Hill his Miranda warnings. Hill told Grall where he could find the key. Officers unlocked the door and found marijuana inside the room. Subsequently, officers encountered another locked door on the outside of the house, this time leading to a basement room. Again, Grall asked Hill where he could find a key, and Hill told him. Officers unlocked the door and found marijuana inside.
When asked why the search team did not just "knock the door in" since they had a warrant, Grall responded, "[T]his is a very nice home . . . And the honest answer is I didn't want to break down or damage any part of this home if I could avoid it." RP at 108-09.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On August 4, 2006, the State charged Hill with manufacturing marijuana under the Uniform Controlled Substances Act. On January 17, 2007, Hill submitted a motion to suppress evidence seized in the search, as well as the statements he made to Grall at the time of the search, under CrR 3.5 and CrR 3.6. On March 20 and 21, 2007, a hearing was held in Jefferson County Superior Court. On April 27, 2007, the trial court denied Hill's motion to suppress. In its findings of fact and conclusions of law, the trial court noted that it had ignored Greenspane's and Avery's observations, as their training and experience was not included in their resumes. The trial court concluded, however, that the inclusion of this information would not have affected the judge's decision to issue the warrant. The trial court also concluded that while the utility consumption records should be redacted from the warrant, their inclusion also did not affect the issuance of the warrant. Finally, the trial court concluded that Fuchser's and Raymond's information provided evidence that was, in itself, sufficient to issue the search warrant.
CrR 3.5 provides that when a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing for the purpose of determining whether the statement is admissible. CrR 3.6 governs suppression hearings.
On June 1, 2007, after a stipulated bench trial, the trial court convicted Hill of manufacturing marijuana under the Uniform Controlled Substances Act. Hill now appeals.
ANALYSIS
Hill argues that the trial court erred in denying his motion to suppress evidence seized in the search of his home and statements made at the time of the search. We affirm the trial court.
I. Issuance of Search Warrant
Hill argues that although the issuance of a search warrant is discretionary, a decision to issue a warrant based on information that is inaccurate or illegal for reasons unknown to the issuing magistrate should not be reviewed for abuse of discretion. Rather, he contends, the trial court should have reviewed de novo the sufficiency of the partially invalid warrant after redaction. The State responds that the affidavit did not contain material misrepresentations or omissions and that including the electrical consumption records was neither reckless nor material to the probable cause determination. We hold that the warrant affidavit set forth facts sufficient for a reasonable person to conclude that Hill was probably involved in criminal activity at his home; therefore, probable cause existed to issue the search warrant in this case.
A. Material Misrepresentations and Omissions
Even if we were to assume that the warrant affidavit contained the material misrepresentations and omissions Hill claims it did, redacted the inaccuracies, and included the omissions, the information that would remain was sufficient to establish probable cause. Thus, we need not review the trial court's findings of fact and conclusions of law with respect to this issue.
Furthermore, Hill contends that the warrant affidavit failed to inform the judge of the illegal method by which Grall obtained his power use information (i.e. without a warrant or subpoena). A search warrant based on an affidavit that contains illegally obtained information may be valid if the affidavit contains facts sufficient to establish probable cause independent of the illegally obtained information. State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). Because the warrant affidavit in this case contains facts sufficient to establish probable cause independent of this information, however, we need not reach this issue.
B. Probable Cause
Hill argues that the trial court should not have afforded deference to the issuing magistrate's decision to issue the search warrant because "[t]he decision to which [it] purported to defer . . . was a decision the magistrate never made." Appellant's Br. at 24. Hill contends that because the judge was not aware that the information contained in the warrant affidavit was misleading and unlawfully acquired, "he never ruled on whether probable cause was made out by the facts that the affiant officers had actually and lawfully acquired in their investigation." Appellant's Br. at 24. We need not address this issue, however. We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). The trial court concluded that "the information provided by Fuchser and Raymond provides evidence of probable cause that is, by itself, sufficient to issue the search warrant." CP at 285 (citations omitted). We agree and hold that probable cause was established in this case.
A search warrant may issue only upon a determination of probable cause, based upon facts and circumstances sufficient to establish a reasonable inference that criminal activity is occurring or that contraband exists at a certain location. State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980); State v. Patterson, 83 Wn.2d 49, 58, 515 P.2d 496 (1973). Probable cause exists when an affidavit supporting a search warrant sets forth facts sufficient for a reasonable person to conclude that the defendant probably is involved in criminal activity. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994); State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). Facts that, standing alone, would not support probable cause can do so when viewed together with other facts. State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992).
In this case, the trial court found that Fuchser and Raymond heard a humming noise "apparently caused by electrical equipment emanating from [Hill's] residence." CP at 283. It also found that Raymond and Fuchser were familiar with the smell of marijuana and had the expertise to recognize the smell of green marijuana. Finally, the trial court found that the warrant affidavit was specific regarding the source of the smell of growing marijuana Raymond and Fuchser provided. Hill does not assign error to these findings of fact and thus we treat them as verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Courts have held that evidence of this nature is sufficient to establish probable cause. In State v. Cole, the defendant argued that the trial court erred in finding probable cause based on the warrant affidavit's assertion that a state patrol detective smelled the odor of growing marijuana when investigating the suspect's property. 128 Wn.2d 262, 289, 906 P.2d 925 (1995). The warrant affidavit also stated that the officer had investigated several marijuana grow operations and was familiar with the smell of marijuana. Cole, 128 Wn.2d at 289. In finding that the trial court did not abuse its discretion in finding probable cause, the Washington Supreme Court stated:
Acknowledging that such an assertion must be based on more than a mere statement of personal belief, the Olson court [ State v. Olson, 73 Wn. App. 348, 869 P.2d 110 (1994)] held a statement that an officer with training and experience actually detected the odor of marijuana provides sufficient evidence, by itself, constituting probable cause to justify a search.
Cole, 128 Wn.2d at 289. See also State v. Huff, 64 Wn. App. 641, 826 P.2d 698 (1992); State v. Remboldt, 64 Wn. App. 505, 827 P.2d 282 (1992). In this case, Raymond and Fuchser not only smelled the odor of marijuana, but they heard the sound of electrical humming while in close proximity to Hill's home. Based on their training and experience, they determined that both the odor and the sounds were coming from Hill's home. The warrant affidavit also stated that the affiant knew from training and experience that the equipment associated with marijuana growing operations often includes gardening equipment such as fans, motors used to run large fans, and other electrical components. This information, along with Przygocki's observations regarding the odor of marijuana and bright light emanating from Hill's home, was sufficient to establish probable cause that Hill was involved in an illegal marijuana grow operation.
Hill argues in passing that the trial court's finding that Przygocki's statement that he recognized the smell of marijuana from his training and experience does not constitute a "resume of relevant experience." Appellant's Br. at 19. Hill fails to offer substantive support for this argument, however.
II. Hill's Statements
Hill argues that the trial court erred in denying his motion to suppress statements he made at the time of the search, and the "fruits thereof," because they were a product of police interrogation. Appellant's Br. at 33. The State, citing State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988), responds that Hill's statements were neither the product of an interrogation nor incriminating; thus, the trial did not err in denying his motion to suppress them. The State's argument is persuasive.
The trial court found that Hill was in custody when Grall asked him about the keys for the locked doors within his home. The trial court also found that the contact by Grall was not an interrogation designed to get an incriminating response from Hill. Based on these findings, the trial court concluded that the statements Hill made to Grall were not the subject of an interrogation. In its oral ruling, the trial court stated:
Mr. Hill was in custody, there's no question about that. He was in custody when Detective Grall came up to him and [asked about the keys] . . . [But] [i]t was not designed to illicit an incriminating response . . . You were in Mr. Hill's home, and there [were] locked doors, it's not incriminating the fact that he [knew] where keys [were].
RP (March 30, 2007) at 16. Substantial evidence supports the trial court's findings and its findings ultimately support its conclusion of law. Furthermore, the Supreme Court's decision in Wethered supports the trial court's ruling.
In Wethered, the defendant challenged the trial court's refusal to suppress evidence of the hashish he handed to police officers before they read him his Miranda warnings. 110 Wn.2d at 467. The Court of Appeals held that Wethered's act of producing the hashish was a confession of knowledge concerning the hashish and was not admissible against him. Wethered, 110 Wn.2d at 468-69. The Court of Appeals held, however, that the hashish itself was admissible since Wethered produced it voluntarily. Wethered, 110 Wn.2d at 471.
The Court of Appeals held that the error in admitting evidence of the act of surrendering the hashish was harmless and ultimately affirmed the conviction. Wethered, 110 Wn.2d at 468.
In determining whether Wethered's act of surrendering the hashish was in fact testimonial in nature, the Washington Supreme Court noted that the Court of Appeals had relied, in part, on State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976), in making its decision. In Dennis, an officer suggested to the defendant that the defendant produce the drugs voluntarily. The defendant subsequently removed several packages of cocaine from the refrigerator and placed them on the table before the officer, who seized them. 16 Wn. App. at 419. The trial court found that the defendant produced evidence freely and voluntarily without any coercion. Dennis, 16 Wn. App. at 420. The Court of Appeals held that the defendant's act of procuring the cocaine from its hiding place and placing it on the table in itself constituted an admission, was testimonial in nature, and therefore served to incriminated him; thus, it should have been suppressed. Dennis, 16 Wn. App. at 423-24.
The Wethered court noted, "It has been consistently held that compulsion which makes an accused the source of real or physical evidence does not violate [the privilege against self-incrimination]. It is only violated when the accused is compelled to make a testimonial communication that is incriminating." 110 Wn.2d at 470-71 (quoting State v. Franco, 96 Wn.2d 816, 827, 639 P.2d 1320 (1982). The court then held that Dennis correctly stated the rule that "where a police officer's questioning or requests induce a suspect to hand over or reveal the location of incriminating evidence, such nonverbal act may be testimonial in nature; the act should be suppressed if done while in custody in the absence of Miranda warnings." Wethered, 110 Wn.2d at 471 (emphasis added). The Supreme Court noted, however:
Our holding does not change the law with respect to situations involving consent to search. In [cases involving consent to search], the Court of Appeals distinguished Dennis because in those cases the police did not ask for the contraband, but instead requested permission to search or for keys to a car trunk. Granting permission to search is consistent with innocence, whereas producing contraband from a hiding place is essentially an admissible of guilt. Here, the officer did not ask for permission to search but asked Wethered to hand him contraband where doing so was an admission of knowledge of the contraband and thus incriminated Wethered.
110 Wn.2d at 471 (emphasis added) (citations omitted).
Hill argues that because he answered Grall's questions while handcuffed and guarded by "heavily armed police officers," his statements were involuntary. Appellant's Br. at 33. Furthermore, he argues that his incriminatory statements were the product of police interrogation. The trial court found and the State agrees, however, that Grall's questions did not constitute an interrogation and that Hill's answers were not incriminating. "[N]ot every question posed in a custodial setting is equivalent to `interrogation'; the test is whether under all of the circumstances involved in a given case, the questions are reasonably likely to elicit an incriminating response from the suspect." State v. Bradley, 105 Wn.2d 898, 903-04, 719 P.2d 546 (1986) (quoting United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir. 1985)). According to Grall, his first exchange with Hill went as follows:
[State]: And after you encountered the locked door, what did you do then?
[Grall]: I immediately went and found Mr. Hill. [He] was downstairs by the front door. I had told him that I discovered a locked door on the second floor at the end of the hall and asked him how to get in it. Is there a key? If there is, where is it at?
[State]: And did he answer you?
[Grall]: He did.
[State]: And was he handcuffed at this point?
[Grall]: Yes, he was.
[State]: And did you have your gun drawn when you were asking him this question?
[Grall]: No, I did not.
RP at 108. Grall then testified that when officers encountered the second locked door, he "went back to Mr. Hill, told him that we'd found [another locked door], want[ed] to know if he knew where the key was for that. Mr. Hill told me where to the find the key." RP at 110-11.
Thus, Hill's argument that, under all the circumstances in this case, Grall's questions were reasonably likely to elicit an incriminating response from Hill is unpersuasive. Rather, Grall questions were reasonably likely to elicit, and in fact elicited, answers pertaining to the location of the keys. The questions were not reasonably likely to elicit responses regarding the location of the marijuana or an admission of guilt. Furthermore, Hill's argument that his statements constituted incriminating evidence is unpersuasive. Unlike the defendant in Wethered, Hill neither indicated that he had knowledge of the marijuana nor admitted guilt. Rather, Hill told Grall where he could locate the keys to the locked rooms. That officers ultimately found incriminating evidence behind those locked doors is irrelevant. Because Grall's questioning did not constitute an interrogation and because Hill's responses were not incriminating, we affirm the trial court's denial of Hill's motion to suppress these statements and the fruits thereof.
The State also notes that the instant case is distinguishable from Wethered because here the officers had a search warrant and "upon encountering a locked door they merely requested the keys to a room they were going to search anyway." Resp't's Br. at 13.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and HUNT, J., concur.