State v. Maxfield
| Decision Date | 08 December 1994 |
| Docket Number | No. 61120-3,61120-3 |
| Citation | 886 P.2d 123,125 Wn.2d 378 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Mark Phillip MAXFIELD and Pamela A. Maxfield, Appellants. |
C. Danny Clem, Kitsap County Prosecutor, Kevin P. Kelly, Deputy, Port Orchard, for respondent.
Defendants appeal their convictions for possession of a controlled substance with intent to deliver and for manufacture of a controlled substance. They claim the trial court erred in denying their motion to suppress evidence obtained as a result of a disclosure by a public utility district employee and through an on-site investigation by an informant.
During the summer of 1991, defendant Mark Phillip Maxfield was involved in two marijuana grow operations, one in Clallam County and one in Jefferson County. His wife, defendant Pamela A. Maxfield, was involved in the operation of the marijuana grow in Jefferson County. The investigation of both marijuana grow operations began when a Clallam County Public Utility District (PUD) employee On June 6, 1991, a Sequim police officer assigned to the Clallam County Drug Task Force (Drug Task Force) 1 received a telephone call from the PUD employee. The PUD employee told the officer that power usage at 431 Atterbury Road in Sequim was high. He indicated that there were two meters at the residence, one on the house, which indicated low readings, and one on the garage, which showed high power usage. The PUD employee told the officer that it would take some extremely heavy equipment to have that kind of high reading and that two transformers providing service to the garage had blown and a third, heavier duty transformer had been installed.
informed law enforcement that electrical power consumption at a residence in Sequim, Washington, was high.
The PUD employee indicated to the Drug Task Force officer that the records could be examined only after law enforcement filed a request for inspection. The officer filed such a request and inspected the PUD records.
The PUD employee involved here had been employed by the PUD since 1973 and in 1991 was the PUD's treasurer-comptroller. He also was designated by the PUD as the contact person for law enforcement officers requesting records pursuant to the state public disclosure act, RCW 42.17, and in that capacity had had contact with Drug Task Force members several times with regard to other cases prior to June 6, 1991. The PUD employee had never initiated contact with the officer involved here before that date, had not been directed to call law enforcement with suspicious power readings, and had not been asked to find out about the residence at 431 Atterbury Road.
The PUD employee testified that he could not recall the specific instance involved here, but that he did not survey power company records looking for high consumption. He He also testified that during the year preceding the present case a member of the Port Angeles Police Department, who was not a member of the Drug Task Force, attended a PUD general employees' meeting to discuss the problem of illegal drug use in Clallam County. Further, the PUD employee testified that he knew the police were always interested in any information from any source regarding drugs.
stated that he most likely received such information from a meter reader. When he learned of suspiciously high power consumption he might suggest the meter reader contact the Drug Task Force or he might call the Drug Task Force himself, simply to give them an address.
The PUD employee had initiated contact with the Drug Task Force approximately six times, always on his own initiative. He had never been asked by police about a particular individual and had never been asked by police to provide any information without a written request.
The information contained in the PUD records involved here triggered an investigation that eventually implicated defendants in the marijuana grow operations.
As part of the investigation, a private investigator, who was a former police officer, was asked by the Drug Task Force to aid in the investigation of this case. The investigator testified that he went to the address at 431 Atterbury Road on June 27, 1991, to see if he could find evidence of a marijuana grow operation. He testified that he went to the house and knocked on the door. There was no answer, but he heard noises in the garage, so he walked across the driveway to the garage and then on what appeared to be a pathway to an entry door. He also knocked on that door. Again, there was no answer. During this time he smelled marijuana and looked for evidence of a marijuana growing operation. He observed mildew on the garage entry door, an air treatment apparatus that is inconsistent with use in a garage, but consistent with use in a marijuana grow operation, and potting soil that had been dumped from potlike containers.
The evidence gathered from the PUD and at the residence, as well as additional evidence, was the basis of a search warrant On July 25, 1991, in connection with the Atterbury Road marijuana grow operation, defendant Mark Maxfield was charged with manufacture of a controlled substance and possession with intent to deliver a controlled substance in Clallam County Superior Court. The following day, in connection with a marijuana grow operation at his residence in Port Townsend, he was charged in Jefferson County Superior Court with possession of a controlled substance (marijuana) with intent to manufacture or deliver. On July 30, 1991, Pamela Maxfield was charged with possession with intent to manufacture or deliver in Jefferson County Superior Court.
that led to the discovery of a marijuana grow operation at 431 Atterbury Road and then another at defendants' residence in Port Townsend.
All parties agreed to be bound, in both the Clallam County and Jefferson County actions, by the Jefferson County Superior Court ruling on defendants' motion to suppress evidence.
Following a CrR 3.6 hearing, the trial court denied the motion to suppress evidence and entered findings of fact and conclusions of law.
Defendants were then convicted, as charged, upon stipulated facts.
Defendants appealed their convictions and the appeals from both counties were consolidated by the Court of Appeals. This court subsequently accepted certification from the Court of Appeals.
ISSUE ONE. Are the findings of fact entered in the hearing on the motion to suppress evidence supported by substantial evidence?
ISSUE TWO. Does the voluntary disclosure of information held by a public utility district about a customer violate the public disclosure act or violate the customer's constitutional right to privacy?
ISSUE THREE. Did the agent investigating the residence located in Sequim substantially and unreasonably depart from the area open to the public and thus violate the privacy rights of defendants?
ISSUE FOUR. Did the trial court err in determining that defendant Mark Maxfield's convictions for manufacturing a controlled substance and for possessing a controlled substance with intent to deliver do not subject him to double jeopardy and, further, do not encompass the same criminal conduct?
ISSUE ONE.
CONCLUSION. The trial court's findings of fact entered following the CrR 3.6 hearing on the motion to suppress evidence are supported by substantial evidence and are therefore verities on appeal.
Defendants assign error to certain of the trial court's Findings of Fact but do not argue why those findings are alleged to be in error.
Where properly challenged, findings entered in CrR 3.6 hearing are reviewed for substantial evidence. 3 Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. 4 An appellate court will not independently review the evidence. The reason for this is that the trier of fact is in a better position to assess the credibility of witnesses, take evidence, and observe the demeanor of those testifying. 5
Defendants appear to challenge the trial court's inferences from the testimony and evidence presented at the CrR 3.6 hearing. Specifically, defendants seem to challenge the trial court's failure to agree with defendants' contention that the Drug Task Force officer requested information from a PUD employee before filing a written request to inspect the PUD file.
At the hearing, the police officer testified that he was contacted by a PUD employee and was told that the PUD
had some records that indicated some high power usage that we might be interested in. He asked that I fill out a disclosure form or an information form to obtain these records, at which time I did. I took it over to the PUD, gave it to [the PUD employee] and in turn he gave me the records.
Report of Proceedings vol. 1 (Sept. 20, 1994), at 33-34.
During cross examination, the officer was asked to relate specifically what the officer said and what the PUD employee said during the telephone conversation. The officer testified that he could not recall the details of the conversation but responded to defense counsel's questioning as follows:
Q Well, did [the PUD employee] identify himself?
A Yes.
Q Did he tell you something to the effect that he had some information you might be interested in?
A Yes.
Q And did you ask him what it was?
A Yes.
Report of Proceedings vol. 1 (Sept. 20, 1994), at 39.
Defendants argue that these responses prove that the officer requested inspection or copying of public utility records over the telephone, rather than in writing.
With regard to this fact and others to which error is assigned, we have reviewed the entire record and conclude that, while other inferences could be drawn from the evidence, the record as a whole...
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