State v. Fosie, No. 32913-1-II (Wash. App. 7/25/2006)
| Decision Date | 25 July 2006 |
| Docket Number | No. 32913-1-II,32913-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEFFREY LEONARD FOSIE, Appellant. |
Appeal from Superior Court of Jefferson County. Docket No: 04-1-00041-1. Judgment or order under review. Date filed: 01/19/2005. Judge signing: Hon. Craddock D Verser.
Counsel for Appellant(s), James Elliot Lobsenz, Carney Badley Spellman, 701 5th Ave Ste 3600, Seattle, WA 98104-7010.
Counsel for Respondent(s), Juelanne B. Dalzell, Attorney at Law, Prosecuting Attorney, PO Box 1220, Port Townsend, WA 98368-0920.
Shane Richard Seaman, Attorney at Law, 203 W Patison St Ste a, Port Hadlock, WA 98339-8701.
Jeffrey Leonard Fosie appeals his conviction of marijuana possession with intent to manufacture or deliver, arguing that the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant does not establish the informant's veracity. He further argues that the State improperly relied on high power consumption evidence obtained in violation of his state constitutional right to privacy in order to obtain the search warrant. Because the affidavit was deficient, even including the evidence of high power consumption, we reverse and remand.
On September 30, 2003, the Washington State Patrol received a call on its marijuana grow hotline, reporting an indoor marijuana grow operation at 70 Burns Road in Port Hadlock. The caller reported seeing three rooms full of marijuana plants three weeks earlier.
Detective John Halsted interviewed the caller, described in the affidavit in support of a search warrant as a `concerned citizen' who is `known to him.' Clerk's Papers (CP) at 29. But the caller wished to remain anonymous for fear of retaliation. Police investigation revealed that the caller had a `limited criminal history,' which included, at least, a felony conviction of marijuana possession and marijuana distribution. CP at 29.
In addition to familiarity with marijuana through personal use, the caller learned about indoor marijuana grow operations from documentaries and television shows. Also, the caller admitted that he1 currently used marijuana; however, the caller did not have any pending criminal matters for which he sought assistance in exchange for the information provided.2
The caller reported observing about 100 marijuana plants in each of two rooms, numerous grow lights hanging from the ceiling, polyvinylchloride piping (PVC) plumbing, the strong odor of marijuana throughout the house, and a silver handgun at the residence.
The caller said that he had visited the house within the previous month and met with Kenyon Kovash there. The caller described Kovash and the car he drove, stating that Kovash originally came from Vancouver but that he had been living at the house for about six months. According to the caller, Kovash remarked to him that the grow lights caused high power bills.
The police verified the caller's description of Kovash, his car, and the residence. The police also issued an `administrative subpoena' to Puget Sound Energy, a private utility, and obtained the residence power consumption records. CP at 27. Those records identified Fosie as the utility subscriber for the preceding six months and showed a dramatic increase in power usage over the prior year. The power consumption also exceeded by five times the average usage for a single family Washington residence. The increased power consumption at the residence was consistent with a marijuana grow operation.
The police filed a complaint for a search warrant. In addition to the information above, the complaint stated that Fosie's criminal history included a prior arrest for felony possession of marijuana. A judge issued the search warrant.
Based on evidence obtained during execution of the search warrant, the State charged Fosie with marijuana possession with intent to manufacture or deliver. The trial court denied Fosie's motion to suppress. The trial court also denied Fosie's motion for reconsideration of the ruling.
At trial, Halsted testified that when he executed the search warrant, he found marijuana plants, high intensity grow lights, hoses, scales, and drug paraphernalia.
The jury found Fosie guilty as charged and he appeals.
Reliability of Confidential Informant Fosie contends that the trial court erred in denying his motion to suppress. He does not dispute the informant's basis of knowledge necessary under the Aguilar-Spinelli3 test. Rather, he asserts that the affidavit in support of the search warrant does not establish the informant's reliability. He argues that the police only corroborated innocuous facts, including increased power consumption, rather than any information pointing to criminal activity. We agree.
When reviewing the denial of a motion to suppress, we determine whether substantial evidence supports the trial court's findings and, in turn, whether those findings support the conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wn.2d 1016 (2002). We treat unchallenged findings as verities on appeal. Ross, 106 Wn. App. at 880.
A search warrant must be based on probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists when sufficient facts and circumstances enable a reasonable person to conclude that either criminal activity is occurring or that contraband is present at a certain location. Cole, 128 Wn.2d at 286. Reviewing for an abuse of discretion, we generally give great deference to an issuing judge's determination of probable cause. Cole, 128 Wn.2d at 286. We resolve any doubts as to the existence of probable cause in favor of the warrant. Cole, 128 Wn.2d at 286.
Probable cause for a search warrant may be based on information from an informant. State v. Gaddy, 152 Wn.2d 64, 71, 93 P.3d 872 (2004). Under the Aguilar-Spinelli test, an informant's tip may establish probable cause if the affidavit sufficiently demonstrates the informant's basis of knowledge and reliability. 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); Gaddy, 152 Wn.2d at 71. Independent police investigation corroborating the informant's tip sufficiently cures a deficiency in either or both prongs. Cole, 128 Wn.2d at 287. But the police must corroborate more than public or innocuous facts. Cole, 128 Wn.2d at 287. Rather, corroborating evidence must point to criminal activity along the lines suggested by the informant. State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984) (quoting United States v. Canieso, 470 F.2d 1224, 1231 (2nd Cir. 1972)).
The extent of corroboration needed to establish an informant's veracity depends, in part, on the informant's status. See State v. Northness, 20 Wn. App. 551, 556-57, 582 P.2d 546 (1978). Where a citizen informant comes forward and reveals his identity to the issuing judge, the informant's veracity may be established by the internal consistency and detailed nature of the information provided. Northness, 20 Wn. App. at 557. Greater corroboration is required of a confidential informant in order to guard against the possibility of an `anonymous troublemaker' who is unaccountable for false accusations or who may be involved in the criminal activity or motivated by self-interest. State v. Ibarra, 61 Wn. App. 695, 700, 812 P.2d 114 (1991).
The specter of an anonymous troublemaker persists in instances where the informant is known to the police but not to the judge. But the specter may be dispelled by sufficient facts establishing that the informant truly is a disinterested citizen and not a criminal or professional informant. Ibarra, 61 Wn. App. at 700; see also State v. Payne, 54 Wn. App. 240, 244, 773 P.2d 122 (), review denied, 113 Wn.2d 1019 (1989). Such facts may include a description of the informant, an explanation for his presence at the scene, and the informant's reason for wanting to remain anonymous. Ibarra, 61 Wn. App. at 700.
Here, the police, but not the issuing judge, knew the informant's identity. Although the affidavit describes the informant as a `concerned citizen,' it does not provide sufficient facts to support an inference that the informant truly is a disinterested citizen rather than a criminal informant who may be involved in the criminal activity or motivated by self-interest. CP at 29.
Relying on State v. Bauer, 98 Wn. App. 870, 991 P.2d 668, review denied, 140 Wn.2d 1025 (2000), and State v. Berlin, 46 Wn. App. 587, 731 P.2d 548 (1987), the State argues to the contrary. Both cases are distinguishable.
In Berlin, three different confidential informants reported seeing marijuana plants in a shed next to the defendant's residence. 46 Wn. App. at 588. The affidavit in support of the search warrant stated that the informants had no criminal background, came forward voluntarily, provided their names and contact information, and wanted to remain anonymous for fear of retaliation. Berlin, 46 Wn. App. at 589. Division One held that `{t}hough reasonable minds could differ as to the reliability of the citizens here, there is enough information from which the magistrate could find sufficient indicia of reliability.' Berlin, 46 Wn. App. at 591-92.
In Bauer, a confidential informant reported a marijuana grow operation at the defendant's residence. 98 Wn. App. at 872-73. The affidavit in support of the search warrant stated that the informant had no criminal record, had been a Washington resident for more than nine years, came forward voluntarily, provided his name, was motivated by concern about unlawful drugs as well as a desire for a...
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