State v. Hull
| Decision Date | 01 March 2012 |
| Docket Number | No. 29736-5-III,29736-5-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ERWIN W. HULL, Appellant. |
Kulik, C.J. — The Grant County Sheriff's Office and the Drug Enforcement Agency (DEA) received tips that Erwin Hull was growing marijuana in a dug out room below his house. The sheriff obtained a search warrant for Mr. Hull's home and found a grow operation as described by the informants. When questioned by police, Mr. Hull did not have documentation designating him as a marijuana provider. On stipulated facts, the court found Mr. Hull guilty of one count of manufacture of marijuana. Mr. Hull appeals. He contends that the magistrate did not have probable cause to issue the search warrant, that the trial court should have allowed him to assert an affirmative defense as a designated provider, and that he did not knowingly manufacture marijuana contrary tolaw. We conclude that Mr. Hull's assertions of error are unpersuasive and, therefore, affirm the conviction.
In April 2009, the Grant County Sheriff's Office Interagency Narcotics Enforcement Team (INET) received two anonymous tips from the Washington State Patrol Marijuana Hotline. The tipsters reported an underground marijuana grow operation at Mr. Hull's home. The tipsters stated that the grow was accessible through a trapdoor in a bedroom of the residence. Detective Jeff Wentworth of INET determined that Erwin and Jacqueline Hull owned the property at 550 South Grand Drive in Moses Lake, Washington.
As part of the investigation, in June 2009, Detective Wentworth checked the power records of the Hull residence and compared the power usage with neighboring homes of comparable size and age. Detective Wentworth determined that the Hull residence used more kilowatt hours than the comparable households; one comparison established a difference of approximately 6,751 kilowatt hours. Admittedly, some of the comparable households had upgrades to insulation and windows where the Hull residence did not.
In July 2009, Detective Wentworth received a report from an agent in the Spokanedivision of the DEA. The report indicated that a confidential source, who had done work for the DEA in the past, claimed that "'Jackie and Buster'"1 who lived 550 South Grand Drive in Moses Lake, Washington, were growing marijuana in their home. According to the report, the confidential source was at 550 South Grand Drive during the first week in July. While at the residence, the confidential source was shown a trapdoor in the closet of a bedroom that led to an underground facility where approximately 50 marijuana plants were being grown under bright lights.
Later in July, the confidential source called the hotline and stated that he or she had again observed the room under the house, and the grow operation was still active as of July 30, 2009.
On August 4, Detective Wentworth received a search warrant to use a thermal imaging device on the Hull residence. Detective Wentworth did not observe any heat change differences between the Hull residence and other comparable homes. Detective Wentworth noted that this finding would be logical if the grow operation was underground.
Five months later, on January 12, 2010, Detective Wentworth spoke with a citizen informant (CI) who wanted to give information on the marijuana grow operation at 550South Grand Drive. The CI stated that Jackie and Erwin Hull lived at the residence. The CI said that he or she had known Jackie for more than 20 years and that Jackie struggled with drug addiction. The CI further advised that in the late spring to early summer of 2009, he or she visited the Hull house and Jackie revealed the marijuana grow operation under the house. The CI was shown a trapdoor in the closet floor of a bedroom and was invited to go under the house. The CI saw that the entire foundation had been dug out. The CI observed numerous marijuana plants in different stages of growth.
The CI's past history with the drug culture helped the CI recognize the plants as marijuana plants. The CI also provided other correct, verifiable information to Detective Wentworth, such as the date that the Hulls moved into the residence, Mr. Hull's place of employment, and specific information regarding the transfer of Ms. Hull's vehicle. The CI agreed to disclose his or her identity to the magistrate issuing the warrant.
Detective Wentworth and a colleague conducted another comparative investigation of the Hulls' power usage, using different homes from the previously-listed comparables. The officers discovered that in 2008, the Hulls used approximately 12,900 more kilowatt hours and spent approximately $130 more for power consumption than their neighbors. In 2009, the difference increased to approximately 16,500 kilowatt hours and $550.
Detective Wentworth requested and received a search warrant to enter the Hull residence and search for evidence of marijuana manufacturing, consumption, use, and/or distribution. An affidavit accompanied his request.
Upon execution of the warrant, Mr. Hull voluntarily responded to the officer's knock and complied with all orders. In the southwest bedroom closet, Detective Wentworth observed a trapdoor in the floor, which opened into an underground room where 11 marijuana plants were growing. Detective Wentworth heard Mr. Hull state that he was growing marijuana plants for his father and that his father passed away in December. Mr. Hull also stated that he did not have any paperwork authorizing him to grow marijuana. On that same day, Mr. Hull was arrested and charged in Grant County with manufacture of marijuana.
Procedural Facts. Mr. Hull filed a motion to suppress evidence obtained under the search warrant, contending the warrant was not supported by probable cause. The court held an evidentiary hearing and entered formal findings of fact and conclusions of law. The court ultimately denied Mr. Hull's motion to suppress.
On the first day of trial on January 5, 2011, the State brought a motion in limine to preclude Mr. Hull from asserting the affirmative defense of providing marijuana as a designated provider for an authorized patient. Mr. Hull sought to admit evidence thatestablished Mr. Hull as Noel Callahan's designated provider of medical marijuana. Mr. Hull also sought to admit documentation that authorized Mr. Callahan to use marijuana for medical purposes. Mr. Callahan's authorization was issued on December 7, 2008, and expired on December 7, 2009, one month before the search of Mr. Hull's residence. Mr. Hull did not provide this documentation to law enforcement; the first presentation occurred in March or April 2010 when Mr. Hull's counsel furnished it to the State. The trial court adjourned without a decision on the State's motion.
On the second day of trial, Mr. Hull presented new, additional documentation relating to Mr. Callahan's authorized use of medical marijuana. This subsequent authorization was issued on January 27, 2010, two weeks after the search of Mr. Hull's residence.
The trial court granted the State's motion to prohibit Mr. Hull from raising an affirmative medical marijuana defense. The trial court determined that Mr. Hull's qualifying patient did not have valid authorization that would allow Mr. Hull to grow marijuana and that Mr. Hull failed to provide documentation to law enforcement at the time of inquiry, as required by statute. The parties proceeded to a stipulated facts trial. The trial court found Mr. Hull guilty of manufacture of marijuana. The trial court sentenced Mr. Hull to 30 days in jail, with credit for one day served and the balance of 29days converted into community service.
Motion to Suppress. A magistrate's determination that probable cause exists is reviewed for an abuse of discretion. State v. Vasquez, 109 Wn. App. 310, 317-18, 34 P.3d 1255 (2001) (), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002). A reviewing court should give great deference to a judge's decision. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). Any doubts are to be resolved in favor of the warrant. State v. O'Connor, 39 Wn. App. 113, 123-24, 692 P.2d 208 (1984). A judicial determination of probable cause will be sustained so long as a substantial basis exists for the decision. State v. Lyons, 160 Wn. App. 100, 105, 247 P.3d 797 (), review granted, 172 Wn.2d 1013 (2011).
"The burden of proof is on the defendant moving for suppression to establish the lack of probable cause." State v. Anderson, 105 Wn. App. 223, 229, 19 P.3d 1094 (2001). The reviewing court looks to the information available to the magistrate at thetime the warrant was issued. Id.
"The warrant clause of the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution require that a search warrant be issued 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. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002) (footnote omitted) (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)).
"Probable cause is established when an affidavit supporting a search warrant provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in the criminal activity." Id. The magistrate is entitled to draw commonsense inferences from the stated facts in the affidavit. State v. Kennedy, 72 Wn. App. 244, 248, 864 P.2d 410 (1993). Facts that do not establish probable cause when considered...
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