State v. Carter

• Citation: 101 Or.App. 281,790 P.2d 1152
• Parties: STATE of Oregon, Respondent, v. Floyd Lee CARTER, Appellant. STATE of Oregon, Respondent, v. Alice Marlene GRANT, Appellant. 87030467; CA A47434 (Control), CA A47437.
• Decision Date: 18 April 1990
• Court: Court of Appeals of Oregon

Page 1152

790 P.2d 1152

101 Or.App. 281

STATE of Oregon, Respondent, v. Floyd Lee CARTER, Appellant.

STATE of Oregon, Respondent, v. Alice Marlene GRANT, Appellant.

87030467; CA A47434 (Control), CA A47437.

Court of Appeals of Oregon.

Argued and Submitted Jan. 30, 1989.

Decided April 18, 1990.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellants. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

In this consolidated appeal, defendant Carter appeals his conviction for manufacture of a controlled substance, ORS 475.992(1), and defendant Grant appeals her conviction for possession of a controlled substance. ORS 475.992(4). Defendants both assign error to the trial court's denial of their motions to controvert and to suppress evidence obtained pursuant to a search warrant. We affirm.

The search warrant was based on an affidavit by Deputy Sheriff Severns. The affidavit states that he is a deputy in the Linn County Sheriff's office and has been a police officer for eleven years. He had been trained in aerial observation of marijuana and, over the previous two years, had made at least eleven confirmed aerial observations of growing marijuana. The affidavit relates that Severns obtained defendant Carter's address and information concerning power consumption for the residence from Consumer Power, Inc. Its records showed high power consumption by defendants, compared to the previous occupant at that address. A comparison of the period from August through December, 1983, when the previous occupant was at the address, and the same period in 1986, when defendants were there, showed a difference of 24,818 kilowatt hours. Severns was told by Barnes, an employee of the utility company, that, for a house comparable to defendant's, ¹ with the usual appliances, the typical monthly consumption would be 2,400 kilowatt hours during peak usage months. The lowest monthly consumption in 1986 was 5,833 kilowatt hours.

The affidavit also relates that Severns had watched the property from an adjacent neighbor's property. The southeast side of the house was approximately fifty to seventy yards from Severns' vantage point. His observations are described in the affidavit:

"I first looked at the window on the southeast side of the residence with the naked eye. I noticed a green reflection in that window. I looked directly east of the window and could not find anything to account for the green reflection.

"I then looked at a window located on the south side of the residence approximately halfway down that side of the house. I observed with the naked eye a large amount of green foliage, [sic ] covering the entire window. Based on the above described training and experience, the color was consistent with marijuana. I then looked at the window with 7 X 35 binoculars and observed a stem consistent in color and shape with that of a marijuana plant."

The affidavit says that he could find no explanation for the high power consumption and that he talked to the manager of a wholesale indoor nursery who told him that, given the power consumption and size of defendant's residence, a person could not grow a legal commercial product and make a profit. ²

We first consider the motions to controvert the affidavit. Defendants argue that the affidavit was misleading for a number of reasons. First, they contend that the statement that Severns obtained information from Barnes concerning typical monthly power usage was controverted. We disagree. Barnes did not testify that he did not provide such information, but only that "I may have. I don't recall at this time." Defendants also argue that the affidavit was controverted because it failed to state that Barnes was the power company credit manager and was not an expert on power usage. However, it is not necessary that usage be provided by a power usage expert.

Defendants also contend that Severns' failure to question Barnes as to whether the outbuilding on the property could make a difference in power usage makes the information inaccurate. Defendants presented no evidence that anything in the outbuilding could have made a significant difference in the power usage. The trial court was entitled to find that defendants did not meet their burden on this issue. ³ ORS 133.693.

Defendants also claim that the affidavit was controverted, because they offered evidence that the only plants visible in the windows observed by Severns were house plants and that the green color he observed was a reflection of grass outside the window. However, there was evidence that Severns had considerable training and experience in identifying marijuana, that he was at a vantage point from which he could see into the windows and that he had made his observations under different weather conditions and at a different location from defendants' witnesses. When factual questions arise on a motion to controvert, we are bound by the trial court's findings of fact, if there is evidence to support them. State v. Cole, 78 Or.App. 450, 454, 717 P.2d 221, rev. dismissed 302 Or. 297, 728 P.2d 529 (1986). The trial court did not err in denying defendants' motions to controvert.

Defendants also assign as error the denial of their motion to suppress evidence seized during the search. They first contend that Severns' use of binoculars constituted an unlawful search under Article I, section 9, and the Fourth Amendment and that, therefore, any information obtained by the use of binoculars cannot be considered in determining whether a warrant is based on probable cause.

Defendants argue that the use of binoculars was impermissible, because binoculars are a technological enhancement of a police officer's powers to observe. The fact that a particular device is a technological enhancement not contemplated by the drafters of the constitution does not make its use by the police unlawful. In State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988), the court held that the placement of a radio transmitter on the defendant's car is an impermissible form of surveillance. The court recognized that the government's ability to scrutinize the affairs of people has been significantly enhanced by technological advances, but it did not hold that use of all such enhancements is impermissible. Rather, the test articulated for determining the permissibility of particular forms of scrutiny is:

"In deciding whether government practices that make use of these developments are searches, we must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair 'the people's' freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on 'unreasonable searches' set forth in Article I, section 9." 306 Or. at 171, 759 P.2d 1040.

In determining whether a particular technological device or its use is overly intrusive, the level of sophistication and the intrusiveness of the device must be considered. In Campbell, the court concluded that the use of the radio transmitter was too intrusive:

"Any device that enables the police quickly to locate a person or object anywhere within a 40-mile radius, day or night, over a period of several days, is a significant limitation on freedom from scrutiny, as the facts of this case demonstrate. The limitation is made more substantial by the fact that the radio transmitter is much more difficult to detect than would-be observers who must rely upon the sense of sight. Without an ongoing, meticulous examination of one's possessions, one can never be sure that one's location is not being monitored by means of a radio transmitter." 306 Or. at 171, 759 P.2d 1040.

The use of moderate power binoculars to observe more clearly or carefully something that was already subject to some scrutiny with the naked eye presents quite a different case. Campbell recognizes the distinction:

"Moreover, it is wrong to characterize the radio transmitter as simply a device for 'enhancing' visual observations in the manner of moderate power binoculars or camera lenses." 306 Or. at 166, 759 P.2d 1040.

The use of binoculars is not an unexpected occurrence in today's society. They are used, not only by law enforcement officers, but by citizens for hunting, spotting game, bird watching and other ordinary, lawful purposes. In addition, in contrast to a radio transmitter or other technological device that an ordinary citizen has little or no ability to detect, citizens have some ability to ascertain that they are being observed and, if they desire, to avoid the scrutiny.

Here, Severns' use of binoculars served only to allow him to observe the plants in the window more carefully and in more detail. They were sitting in the window of the house and could be seen with the naked eye from the adjoining property. Severns' affidavit indicates that he saw, covering the window, a large amount of green foliage, the color of which was consistent with marijuana. The binoculars allowed him to see that the stem of the plant was consistent in shape and color with marijuana. The use of the binoculars was not overly intrusive. We hold that it did not impermissibly impair defendants' freedom from scrutiny and, therefore, did not constitute a warrantless search of the residence.

Defendants also contend that the affidavit did not establish probable cause to believe that there was evidence of criminal activity on defendant Carter's property. To have probable cause requires that the information on which the warrant is based be such as could lead a reasonable person to believe that the search will discover things specified in the affidavit in the places requested to be searched. ORS 133.555(2); State v....