Opinion
No. 27379-9-II
Filed: May 28, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County Docket No: 00-1-00138-5 Judgment or order under review Date filed: 05/04/2001
Counsel for Appellant(s), Juelanne B. Dalzell, Attorney at Law, Prosecuting Attorney, P.O. Box 1220, Port Townsend, WA 98368-0920.
Counsel for Respondent(s), John F. Raymond, Attorney at Law, 2132 Lawrence St, Port Townsend, WA 98368-7925.
The State appeals a trial court's orders suppressing evidence of marijuana manufacture obtained through a search warrant and dismissing charges against Michael Ousley. Because there is no nexus between the marijuana growing operation allegedly operated by his landlord and the search of Ousley's home, we affirm.
FACTS
Michael Ousley was arrested in September 2000, after officers with the Olympic Peninsula Narcotics Enforcement Team (OPNET) executed a search warrant for the house and outbuildings on the property at 171 Embody Road in Jefferson County. The State charged Ousley with one count of manufacturing marijuana when it found approximately 20 marijuana plants growing in an outbuilding on the property Ousley rented from Lisa Dicenzo. In August 2000, officers with OPNET spotted growing marijuana plants from the air, at a farm located on the Hoko-Ozette Road in Clallam County. The property is home to cranberry bogs. OPNET was watching the property after two anonymous tips, the first in October 1999, and then another in March 2000. The tips named Byron Gerke as the grower or possibly his sister, Dicenzo, or her husband, Forrest Richardson. The tipster said that Gerke drove a white sports utility vehicle and may have been arrested in the past for stealing electricity.
OPNET later learned that Dicenzo is Gerke's daughter.
The affidavit in support of the warrant to search the Clallam County cranberry bog (warrant 00312) was issued on September 13, 2000, and stated that tax records showed that Dicenzo had purchased the farm in May 1999. Other records showed that she resided in Port Ludlow, Jefferson County.
OPNET officers surveiled the property until September 16, 2000, when they saw what they believed to be Gerke's vehicle. The officers executed the 00312 warrant that day and found more than 22 growing marijuana plants and several baggies of processed marijuana in the residence. They noted that the marijuana plants looked as though they had been freshly watered and pruned (evidenced by fresh clippings on the ground next to the plants). But the cranberry bogs did not appear to have been regularly tended `due to the presence of weeds and small trees seen growing in them.' Clerk's Papers (CP) at 62.
In the barn, officers also found plant growing supplies and a federal express package addressed to Gerke that contained fine tubing, `the kind of which detectives have seen many times in the past in hydroponic marijuana grow operations and are used for watering plants automatically.' CP at 61. They found a second box sent from `American Hydroponics' with a notation `for Forrest' hand written on it. CP at 61. Elsewhere in the barn, detectives found several bags of `plant growing chemicals;' these were addressed to Dicenzo at a Jefferson County address. CP at 61.
Gerke told officers that the Clallam County cranberry farm belonged to his daughter, Dicenzo. Gerke said that she was last at the farm two weekends earlier. Officers also questioned Robin Anderson, who was with Gerke. She confirmed that Dicenzo owned the property and said that Dicenzo pays the mortgage from proceeds from a contract with Ocean Spray Cranberry Company.
OPNET officers obtained a search warrant to search Gerke's residence in Kitsap County (warrant 00313) and Dicenzo's Jefferson County residence (warrant 00314). The warrant at issue here was for the Jefferson County property that included the residence located at 171 Embody Road.
The warrant authorized seizure of documents relating to the acquisition of the cranberry bogs, documents related to the sale of cranberries, and documents relating to the sale and cultivation of marijuana. The affiant supported his request to search for the documents only with his belief that documents relating to the cultivation and sale of marijuana might be at the residence:
Records held at the Dicenzo/Richardson residence may aid in establishing involvement between Dicenzo/Richardson and the Ocean Spray company for the production of cranberries for profit. . . . I know that marijuana growers often keep records, writings, figures, addresses and telephone numbers and many other notations relating to the growing, harvesting and processing of marijuana.
CP at 64-65. The warrant did not authorize a search for controlled substances.
Exactly what happened once the officers reached the Jefferson County property is not clear. According to the State's response to Ousley's motion to suppress, when the officers reached the Jefferson County property, `they were disbursed to execute the search warrant.' CP at 118. Some officers then knocked on the door of the residence, and Ousley acknowledged their presence. Ousley told them that he had been renting the place for approximately two months and that he did not know Dicenzo; Ousley then went back inside, and the lead officer told the others to `stand down.' CP at 119.
But when he gave this order, an officer told him about a `suspicious building on the property.' CP at 119. The officers `could smell a[n] odor of growing marijuana from this building.' CP at 130. Detectives then asked Ousley if he had access to the building and, when he grew nervous at the question, they read him his rights. When asked how many plants he was growing in the building, Ousley responded about 20 and then requested a lawyer.
As a result of this exchange, OPNET officers sought an addendum to the warrant through a telephonic request, permission to search two vehicles on the property that were not registered to Dicenzo, and permission to search for controlled substances. The affiant explained [a]s officers were doing a cursory search of the property they located . . . an unattached building near the house. This building seemed odd in that it was completely sealed. Airtight. The windows, or the, all the seams were caulked, the windows were covered and there was a noticeable humming noise from within the building, such as a fan motor.
CP at 130.
Additionally, during what they characterized as their `cursory search,' detectives saw a bong on a table inside the residence through a sliding glass door. CP at 131. The testifying officer also told the commissioner that Dicenzo was listed in the phone book at the Embody Road address, which `may indicate that . . . she still occupies this house . . . .' CP at 132. The commissioner allowed an extension of the warrant to include narcotics, paraphernalia, and other indicia of sale/possession, allowed search of the unattached outbuilding, and allowed search of both cars. The officers arrested Ousley.
Memorandum Opinion
At trial, Ousley moved to suppress the drug evidence. The trial judge granted the motion after concluding that '[t]he only evidence the detectives have at this point is that there is marijuana growing on property owned but not occupied by Dicenzo.' CP at 135. And a `recent' telephone directory led officers to conclude that Dicenzo lived at the Embody Road, Jefferson County address at the time of the warrants, September 2000.
The State points out that the affidavit actually described the directory as `current,' not `recent.'
The judge expressed his dissatisfaction with the affidavit in support of the search warrant and the telephonic affidavit in support of the addendum, pointing out that (1) even if the warrant were valid, the officers should have stopped searching when Ousley told them he had been living at the property for approximately two months; and (2) the officers expressed no justification for the `cursory search.'
The trial court suppressed all evidence obtained as a result of the search of Ousley's home and dismissed the charges against Ousley. One issue disposes of this appeal: Was there a sufficient nexus between Dicenzo's criminal activity and the home Ousley rented from her (the 171 Embody Road property) to support a search of Ousley's home?
ANALYSIS
Standard of Review
This court reviews an issuing magistrate's determination that a warrant should issue for abuse of discretion. State v. Remboldt, 64 Wn. App. 505, 509, 827 P.2d 282, review denied, 119 Wn.2d 1005 (1992). This determination generally should be given great deference. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). This court views an application for a search warrant `in the light of common sense, with doubts resolved in favor of the warrant.' Young, 123 Wn.2d at 195.
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 (1980). Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Accordingly, probable cause requires (1) a nexus between criminal activity and the item to be seized, and also (2) a nexus between the item to be seized and the place to be searched. Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). A search warrant for documents generally is given closer scrutiny than one for physical objects because of the potential for intrusion into personal privacy. State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997) (addressing the particularity requirement) (citing Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), and 2 Wayne R. LaFave, Search And Seizure § 4.6(d), at 569 (3d ed. 1996)), cert. denied, 523 U.S. 1008 (1998).
The criminal activity at issue was the marijuana growing operation at the Clallam County cranberry bog. The State argues that a nexus existed between the documentary evidence regarding the farm and this criminal activity because if the documents refuted the report that Dicenzo paid the mortgage through her Ocean Spray contract, then `the property was being paid for by some other means, i.e., the illegal growing and harvesting of marijuana.' Br. of Appellant at 12. Additionally, the State argues that the nexus between the place to be searched and the items to be seized is established because people `probably' keep personal papers in their residences. The State's argument fails for two reasons: first, there is no evidence that Dicenzo keeps such records at her residence and, more importantly, there is no credible evidence that Ousley's residence is Dicenzo's residence only that she owns and rents out that property.
Moreover, our Supreme Court has already ruled that such `facts' are not sufficient to establish probable cause to search a suspect's home where there is no basis to believe that drug dealing or manufacturing is occurring at that residence. Thein, 138 Wn.2d 133. The facts of this case are very similar to those in Thein, where the officers executed a search warrant at a house on South Brandon in Seattle, found marijuana and items commonly associated with marijuana cultivation, and arrested the occupant. 138 Wn.2d at 136-37. Officers also found two packages at the house addressed to the defendant, Thein: one (a `Clean-air' system) addressed to Thein at the address being searched, the other (a box of nails) addressed to Thein at a different address. Thein, 138 Wn.2d at 137. Further investigation led officers to believe that Thein was a drug supplier. Thein, 138 Wn.2d at 137-38.
The officers sought and obtained a warrant to search Thein's Austin Street residence, using an affidavit containing `generalized statements of belief regarding the common habits of drug dealers.' Thein, 138 Wn.2d at 138. For instance, as here, the affiant stated that it is common practice for drug dealers to keep their drugs, records, and money related to drug sales in their homes. Thein, 138 Wn.2d at 138-39.
The prosecution in Thein argued that `a search warrant is properly issued at a drug trafficker's residence even absent proof of criminal activity at the residence.' 138 Wn.2d at 141. The Court characterized this as a request for a per se rule that if the magistrate determines that a person is probably a drug dealer, then a finding of probable cause to search that person's residence automatically follows. Thein, 138 Wn.2d at 141. But the Court held that a greater nexus between the illegal activity and the suspect's home is required to establish probable cause than simply that the suspect is engaged in illegal activity and that he or she resides at the place to be searched: `Probable cause to believe that a man has committed a crime . . . does not necessarily give rise to probable cause to search his home.' Thein, 138 Wn.2d at 148 (quoting State v. Dalton, 73 Wn. App. 132, 140, 868 P.2d 873 (1994) (quoting Commonwealth v. Kline, 234 Pa. Super. 12, 17, 335 A.2d 361, 364 (1975))).
In so holding, Thein followed this court's earlier reasoning in State v. Olson, 73 Wn. App. 348, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994). In Olson, we concluded that an officer's general conclusions regarding the habits of drug dealers, standing alone, is an insufficient basis upon which to premise a search of a suspected drug dealer's home:
An officer's belief that persons who cultivate marijuana often keep records and materials in safe houses is not, in our judgment, a sufficient basis for the issuance of a warrant to search a residence of a person connected to the grow operation. If we adopted the position urged on us by the State we would be broadening, to an intolerable degree, the strict requirements that there be probable cause to believe that evidence of a crime will be discovered at a certain location. We conclude that, standing alone, an officer's belief that grow operators hide evidence at other premises under their control does not authorize a warrant to search those places.
Thein, 138 Wn.2d at 143 (quoting Olson, 73 Wn. App. at 357).
We cannot distinguish the facts of this case from those in Thein. In both cases the police had probable cause to believe that the targets were involved in illegal activity (Thein, because informants told police that he was a dealer; Dicenzo, because the marijuana and associated items were in plain view at property she owned and had recently visited). But in neither case did the police establish a sufficient connection between the place to be searched here, Dicenzo's former residence with the illegal activity. And in both, the affiant merely relied on `generalized statements of belief regarding the common habits of drug dealers.' See Thein, 138 Wn.2d at 138. Under Thein we agree with the Supreme Court's reasoning that such opinions are insufficient to support a warrant. An `officer's belief that persons who cultivate marijuana often keep records and materials in safe houses is not, in our judgment, a sufficient basis for the issuance of a warrant to search a residence of a person connected to the grow operation.' Thein, 138 Wn.2d at 143 (quoting Olson, 73 Wn. App. at 357).
Because we hold that there was not a sufficient nexus between Dicenzo's Clallam County criminal activity and the items to be seized from the Jefferson County residence Ousley rented from Dicenzo, the trial court's ruling that the warrant was deficient was proper and all evidence flowing from its execution was properly suppressed. We affirm and, thus, do not reach the State's remaining issues.
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 and HUNT, JJ., concur.