State v. Anspach

• Decision Date: 08 August 1984
• Docket Number: J81-2652,Nos. J81-2651,s. J81-2651
• Citation: 68 Or.App. 164,682 P.2d 786
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. Sally ANSPACH, Respondent-Cross-Appellant. STATE of Oregon, Appellant-Cross-Respondent, v. Matthew ANSPACH, Respondent-Cross-Appellant. ; CA A25219.
• Court: Oregon Court of Appeals

Page 786

682 P.2d 786

68 Or.App. 164

STATE of Oregon, Appellant-Cross-Respondent, v. Sally ANSPACH, Respondent-Cross-Appellant.

STATE of Oregon, Appellant-Cross-Respondent, v. Matthew ANSPACH, Respondent-Cross-Appellant.

Nos. J81-2651, J81-2652; CA A25219.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted March 14, 1983.

Resubmitted In Banc Dec. 1, 1983.

Decided May 9, 1984.

Reconsideration Denied July 13, 1984.

Review Allowed Aug. 8, 1984.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant-cross-respondent. With him on the briefs were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

David E. Groom, Deputy Public Defender, Salem, argued the cause for respondents-cross-appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.

BUTTLER, Judge.

The state appeals a pretrial order suppressing evidence obtained in the search of a residence and outbuildings in two consolidated criminal cases in which defendants were charged with manufacture and possession of marijuana. Both defendants cross-appeal from the denial of their motions to controvert the affidavit in support of the search warrant. We affirm both orders.

The supporting affidavit submitted by a police officer stated, in pertinent part:

"That on September 24, 1981, myself and Deputy Nelson Johnston of the Douglas County Sheriff's Office, while flying in a Cessna 210, identified growing marijuana plants. That I took photographs of the area in which we saw the plants. That we were flying at an altitude of 1,500 feet above sea level. That I attached hereto as exhibits 'A' and 'B' two of those photographs. That I have encircled in black the only residence in the vicinity. Also within the black circle is what appeared to be a smaller outbuilding. That I have encircled in red, the location of the observed marijuana plants."

The remainder of the five-page affidavit set forth the location of the property on the basis of the county assessor's map, the affiant's general knowledge and experience in the field of narcotics, including his knowledge of what tools are generally used, what stage of the year marijuana is harvested and what related items are likely to be found in residences and outbuildings on the property of those who grow marijuana.

On the motion to controvert, the trial judge accepted the officer's testimony that he was able to identify marijuana from an altitude of 1500 feet, ¹ and held that the warrant on its face was sufficient to justify a search of the property, but not a search of the buildings on the property. The court, therefore, partially allowed the defendants' motion by suppressing all evidence found in a search of the buildings but not evidence seized in a search of the land.

We first address defendants' cross-appeals. They do not challenge on appeal the sufficiency of the affidavit to support the search of the real property but, rather, argue that the trial judge should have granted their motions to controvert. They base their argument on the testimony of a "systematic botanist" that marijuana plants could not be identified accurately from an altitude of 1500 feet. However, we are bound by the trial court's findings of fact if there is evidence to support them. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). Officer Knight testified that he was able to identify the marijuana, because it appeared to be a darker green than the surrounding vegetation. That testimony, if believed, is sufficient evidence to support the trial court's findings. The trial court apparently believed the officer, and on defendants' cross-appeals we affirm its denial of the motions to controvert.

There is no dispute concerning the officers' authority to seize marijuana observed to be growing on defendants' property--it is contraband. On the state's appeal the question is whether the affidavit articulates sufficient facts to establish probable cause to expand the search into defendants' home. The state contends that the trial court erred in concluding that it does not.

If the affidavit is taken at face value, it establishes that from an altitude of 1500 feet the affiant saw an unidentified number of "growing marijuana plants" and that the plants were located somewhere on defendants' property. Photographs taken from that altitude were attached to the affidavit and identified by drawn circles the location of the marijuana and the location of the house. Those circles indicate that the marijuana was growing in dense forest a substantial distance from the house and that the land between the marijuana and the house was dense forest with no apparent pathways between the two. The affidavit does not state that the plants appeared to have been cultivated or that there was any indication of human activity in the area of the plants or any observable connection between the plants and the house; neither does it estimate the number of plants. The question is whether the officer's objective observations, coupled with his subjective knowledge and beliefs, support probable cause to search defendants' residence and outbuildings.

We have dealt with this general question in at least three cases. In State v. Harp, 48 Or.App. 185, 616 P.2d 564, rev. den. 290 Or. 171 (1980), the supporting affidavit stated that the police officer had observed "several" seven to eight foot marijuana plants growing on a 50 acre parcel on which the defendants' house was located. From the vantage point on the road where the police officer was able to see at least one plant with his naked eye, he could also see a portion of the roof line of the house. In holding that the affidavit was sufficient on its face to authorize a search of the residence, we said:

" * * * Reading the affidavit at issue here we find that it is reasonable to infer from the facts presented that the marijuana seen by the officer was cultivated marijuana. The defendant's house was the only residence on the property on which the marijuana was being grown. It is reasonable to infer that the marijuana was being cultivated by defendant because it was growing on his land and he lived in the only residence on that land. Those reasonable inferences give rise to a well-warranted suspicion that marijuana and paraphernalia for its cultivation, manufacture, sale and use would be found in that house. * * * " 48 Or.App. at 190, 616 P.2d 564.

State v. Melendy, 49 Or.App. 441, 619 P.2d 952 (1980), was decided about two months after Harp, but did not cite that case. In Melendy, the affidavit stated: the affiant had become suspicious that there was something growing on defendant's land when he was on the premises investigating a burglary reported by the defendant, because the defendant purposely had taken him around, rather than through, an orchard that would have been the quickest and most direct route to where defendant was taking him; an informant told another officer, who had told the affiant, he had observed a large quantity of marijuana plants growing in the orchard and had taken two plants from the patch; and the informant was familiar with marijuana and had been cited for unlawful possession. A warrant was issued authorizing a search of the property, the dwelling, all outbuildings, automobiles and persons found on the property for marijuana and implements of cultivation. Marijuana was found only in the defendant's house. We stated:

"In the present case, there is nothing in the affidavit which would create an inference that marijuana was in defendant's house. A different situation, justifying a search of the buildings, would be presented if the affidavit indicated either that some marijuana appeared to have been harvested or that the marijuana which the informant observed was ready for harvest."

In State v. Eaton, 60 Or.App. 176, 653 P.2d 250 (1982), rev. den. 294 Or. 460, 658 P.2d 1162 (1983), we quoted from both Harp and Melendy, but did not deal with their apparent inconsistency. In Eaton, the supporting affidavit stated that: in flying over the property at an altitude of more than 500 feet, another officer had identified growing marijuana plants that were approximately 100 feet southwest of a building that appeared to be a dwelling; a greenhouse and a shed were located 75 feet southwest of the plants, and two "red roofed structures" northeast of the residence; and there were "no other structures observed in close proximity to the growing marijuana." The warrant authorized the search of the residence and all outbuildings for marijuana, evidence of its cultivation and of its cultivators. The trial court suppressed evidence seized in the search of the house and outbuildings, because the affidavit was insufficient to establish probable cause to search them.

On appeal, we reversed, relying on Harp, stating that the affidavit was sufficient to establish that the plants were under cultivation on defendant's land, given the existence and location of the greenhouse and outbuildings with respect to the plants. We also stated that the affiant's statements that, based on his experience over five years investigating the growing of marijuana, "upon harvesting the plants are taken indoors for drying and packing" was sufficient to draw inferences to provide probable cause to believe that evidence of crime would be found in the residence and other buildings.

Although Harp and Eaton are reasonably consistent, they appear to be inconsistent with Melendy. In Harp, the affidavit stated only that the officer had identified "several" marijuana plants growing on defendant's property, which was 50 acres, but did not state whether the plants were growing close together, whether there was any objective evidence that the plants were being cultivated or how far the plants observed were located from the residence. We attempted to read the affidavit in a "common sense, non-technical manner" and stated that it was reasonable to infer that the marijuana seen by the officer was...