State v. Johnson
State v. Johnson
Dissenting Opinion
(dissenting) — I respectfully dissent. The majority finds the Drug Enforcement Administration (DEA) agents’ observations they could smell marijuana while standing in the street in front of Terry Johnson’s house, combined with observations of apparent heat loss from the residence, support a finding of probable cause. While I agree that olfactory observations can support a probable cause determination, e.g., State v. Weller, 76 Wn. App. 165, 168, 884 P.2d 610 (1994), I do not believe they do so in this case.
Investigating officers verified the vehicle belonged to Mr. Johnson and obtained his address from department of motor vehicle records. Nearly six months after receiving the tip, officers conducted several visual examinations of Mr. Johnson’s residence. They saw his vehicle there, and another which was also registered to him. They observed a lack of snow on the roof and condensation streaks on the siding where it joined the roof, suggesting ongoing heat loss from the roof of the structure. And they obtained power consumption records showing usage in 1992 varied from usage in 1991: some months showed higher usage, while some months showed lower usage. It is impossible, however, to determine from the affidavit which months
The deciding factor for the majority is the odor evidence presented by Special Agents Levy and Destito. Had they been inside the residence, in a doorway, near an air vent or close to the building when they detected the smell of growing or freshly harvested marijuana, I would agree their observations would justify issuance of a search warrant.
The affidavit states the DEA agents smelled the odor of growing or freshly harvested marijuana while walking in the street in front of Mr. Johnson’s house and, although they walked around the block, they could not detect the odor anywhere else. The affidavit establishes the agents possess the requisite training, experience and skill to identify marijuana by its odor, but it does not adequately connect the odor with Mr. Johnson’s residence. The affidavit is silent with respect to their distance from his house and their ability to smell marijuana at that distance, as well as other possibly relevant factors such as landscaping, wind direction and the relative location of other residences on the street. Since the agents were standing in the street, they must also have been directly in front of the house on the north side of the street, assuming there is one there. Despite the affidavit’s demonstration of the
The six-month-old tip that Mr. Johnson was "involved in the illicit cultivation of marijuana,” plus the observation that his residence lost heat through the roof, plus the agents’ whiff of marijuana in the street in front of his house do not support a reasonable inference the odor came from Mr. Johnson’s residence. Because the affidavit does not set forth sufficient facts to reasonably conclude Mr. Johnson was growing marijuana in his residence, I would reverse.
Review denied at 128 Wn.2d 1023 (1996).
The affidavit must set forth (1) some of the underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information and (2) some of the underlying circumstances from which the officer concluded the informant was credible or his information reliable. 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); State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984).
Cases have upheld the issuance of search warrants based wholly or in large part on olfactory observations made in these circumstances: e.g., Weller, 76 Wn. App. 165 (officers in open doorway); State v. Solberg, 66 Wn. App. 66, 831 P.2d 754 (1992) (officers near defendant’s home), rev’d in part on other grounds, 122 Wn.2d 688, 861 P.2d 460 (1993); State v. Vonhof, 51 Wn. App. 33, 751 P.2d 1221 (tax appraiser near air vent of shop building), review denied, 111 Wn.2d 1010 (1988), cert. denied, 488 U.S. 1008 (1989); State v. Hashman, 46 Wn. App. 211, 729 P.2d 651 (1986) (officers in defendant’s home), review denied, 108 Wn.2d 1021 (1987).
Opinion of the Court
This is a drug case. Terry Johnson was convicted of possession of marijuana with intent to manufacture on stipulated facts after the judge denied his motion to suppress evidence seized from his home. He had argued that there was insufficient corroborating evidence to support an anonymous tip which accused him of growing marijuana. Giving the required deference to both the issuing magistrate and the trial judge, we conclude there was sufficient evidence to support the finding of probable cause and affirm the conviction.
On July 24, 1992, the Federal Drug Enforcement Administration (DEA) received a tip from an undisclosed informant who reported that Johnson was involved in growing marijuana and that he drove a blue/white Chevrolet Blazer, license number 666 BXW. DEA agents confirmed that the vehicle was indeed licensed in Johnson’s name. Two months later they obtained his Spokane address by checking Johnson’s driver’s license records. Four months later agents started watching his Spokane address and observed: that a Chevrolet Blazer, license number 666 BXW, was parked at the residence; the roof of the home had no snow on it while neighboring houses had the "standard” two feet of snow; the roof had not been shoveled; surrounding houses had piles of snow around the houses where the snow had been shoveled from the roof and those houses continued to have white dust covering the shingles; on January 12, 1993, the agents noted there had been a light snowfall and during a drive-by of the house on January 13, they noted again no snow on the roof and condensation streaks were observed on the siding where the siding meets the roof.
On January 15, the DEA obtained the Washington Water Power Company records for the residence which showed that Johnson was the user and that the electrical usage was higher in some months than a comparative pe
Based on this information, Special Agent Levy submitted an affidavit in support of an application for a search warrant to a United States Magistrate; she issued the search warrant. Pursuant to the warrant, agents conducted a search of Johnson’s house and found a marijuana grow operation.
We begin our analysis by agreeing with both parties that the results of the infrared scan may not be considered.
The basic rule is that probable cause to issue a warrant is established if the supporting affidavit sets forth facts sufficient for a reasonable person to conclude the de
In considering the adequacy of smell observations to support probable cause, we consider the experience and the expertise of the DEA agents.
The affidavit here amply identifies the specific training and experience of each agent involved in the investigations. It thereby adequately dispels any notion that the representation in the affidavit was merely a personal belief. Special Agent Levy had been involved for over seven years as the Marijuana Eradication Coordinator for the Eastern District of Washington. He had personally investigated or assisted in investigations culminating in the seizure of several thousand cannabis plants. In addition, he had graduated from marijuana aerial spotting school, Indoor Cannabis Investigation School, and had participated in at least thirty search and/or seizure war
Special Agent Destito had been with the DEA since 1991 and had an additional six years of experience as a police officer. During that time, he attended the Washington State Criminal Justice Center, Basic Law Enforcement Academy, and the United States Department of Justice DEA/FBI Academy. He participated in and directed police operations targeting both indoor and outdoor marijuana cultivation. He also represented that as the result of this training and experience he knew the distinctive odor associated with the marijuana plant. This representation is likewise unchallenged by Johnson. The sense observations here are based on more than personal belief.
A similar affidavit was upheld in State v. Hansen.
Johnson argues nonetheless that the representations in the affidavit supporting the search warrant are inadequate. He says the agents should have described the particular distinctive characteristic of the odor they identified and further explained why they could not smell marijuana
Again, this affidavit is not to be viewed in a hypertechnical manner.
Contrary to Johnson’s assertion, the affidavit does not indicate the agents were unable to smell marijuana from other parts of the property but rather that the smell could not be detected from any location other than directly in front of Johnson’s residence. But more importantly, the failure to explain away the absence of a smell in other locations would not be fatal to the affidavit absent some demonstration of a material omission of fact.
Finally, Johnson argues that exact distances from which the agents smelled the marijuana should have been included in the affidavit. This argument is unsupported by case law.
Johnson also argues that the Remboldt case established three factors which must be met before the smell observation of an officer is sufficient to establish probable cause. These include that the issuing magistrate is fully informed of the experience and expertise of the officers, that the information contained in the affidavit is based on more than mere personal belief, and finally that the information corroborates the informant’s tip.
Johnson’s interpretation of Remboldt is incorrect. The factors referred to in Remboldt are offered only as reasons why the affidavit in that case was sufficient, they do not express an immutable standard. As the court in Remboldt stated:
In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.[21 ]
The conviction is affirmed.
Munson, J., concurs.
State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994).
State v. Garrison, 118 Wn.2d 870, 873, 827 P.2d 1388 (1992); State v. Solberg, 66 Wn. App. 66, 78, 831 P.2d 754 (1992), rev’d in part on other grounds, 122 Wn.2d 688, 861 P.2d 460 (1993).
State v. Coates, 107 Wn.2d 882, 887, 735 P.2d 64 (1987); State v. Ridgway, 57 Wn. App. 915, 919, 790 P.2d 1263 (1990).
State v. Huft, 106 Wn.2d 206, 210, 720 P.2d 838 (1986).
State v. Cord, 103 Wn.2d 361, 365-66, 693 P.2d 81 (1985).
State v. Remboldt, 64 Wn. App. 505, 509, 827 P.2d 282, review denied, 119 Wn.2d 1005 (1992).
Cord, 103 Wn.2d at 366.
State v. Vonhof, 51 Wn. App. 33, 41, 751 P.2d 1221, review denied, 111 Wn.2d 1010 (1988), cert. denied, 488 U.S. 1008 (1989).
Remboldt, 64 Wn. App. at 510.
State v. Smith, 93 Wn.2d 329, 351-52, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980).
Vonhof, 51 Wn. App. at 41.
See Smith, 93 Wn.2d at 352; State v. Compton, 13 Wn. App. 863, 866, 538 P.2d 861 (1975).
42 Wn. App. 755, 714 P.2d 309, aff'd, 107 Wn.2d 331, 728 P.2d 593 (1986).
Hansen, 42 Wn. App. at 761.
Vonhof, 51 Wn. App. at 41.
Vonhof, 51 Wn. App. at 41-42; see also State v. Roth, 30 Wn. App. 740, 743, 637 P.2d 1013 (1981) (indicating that it was hard to conceive that a trained officer could not recognize odor of marijuana), review denied, 97 Wn.2d 1013 (1982).
State v. Wilke, 55 Wn. App. 470, 480, 778 P.2d 1054, review denied, 113 Wn.2d 1032 (1989).
State v. Petty, 48 Wn. App. 615, 622-23, 740 P.2d 879 (stating that a magistrate need only draw the reasonable inference that the odor is connected to defendant’s residence), review denied, 109 Wn.2d 1012 (1987).
Petty, 48 Wn. App. at 622-23.
Remboldt, 64 Wn. App. at 511.
Remboldt, 64 Wn. App. at 510-11 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949)) (emphasis added).
Reference
- Full Case Name
- The State of Washington, Respondent, v. Terry Lee Johnson, Appellant
- Cited By
- 5 cases
- Status
- Published