State v. Miller, 860245-CA

• Decision Date: 17 August 1987
• Docket Number: No. 860245-CA,860245-CA
• Parties: STATE of Utah, Plaintiff and Respondent, v. Allen Boyd MILLER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1363

740 P.2d 1363

STATE of Utah, Plaintiff and Respondent, v. Allen Boyd MILLER, Defendant and Appellant.

No. 860245-CA.

Court of Appeals of Utah.

Aug. 17, 1987.

Ronald J. Yengich, Earl Xaiz, Yengich, Rich, Xaiz & Metos, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., David B. Thompson, Asst. Atty. Gen., for plaintiff and respondent.

Before BENCH, GREENWOOD and GARFF, JJ.

OPINION

BENCH, Judge:

Defendant Allen Boyd Miller appeals his conviction of production of a controlled substance. We affirm.

On August 1, 1985, a search warrant was issued and executed authorizing police officers to search defendant's residence and all structures and vehicles located on the property. The warrant was based on an affidavit filed by Detective Stewart Smith of the State Bureau of Narcotics and Alcoholic Beverage Law Enforcement. Upon executing the warrant, officers seized several items which they believed were marijuana plants and personal property used in the production of controlled substances. Defendant was charged by information with production of a controlled substance, a third degree felony in violation of Utah Code Ann. § 58-37-8(1)(a)(i) (1987). Defendant filed a motion to suppress all evidence seized pursuant to the search. After a hearing on February 6, 1986, the trial court denied defendant's motion. The case was tried to the court on June 19, 1986 on stipulated facts. The only issue at trial was whether the State's evidence proved beyond a reasonable doubt the plants cultivated by defendant and seized by police were marijuana. In a memorandum decision filed July 1, 1986, the trial court concluded the State had met its burden and found defendant guilty as charged.

On appeal, defendant contends the court erred in denying his motion to suppress because the affidavit filed in support of the search warrant failed to establish probable cause, contained false or misleading statements, and failed to justify a "no knock" search warrant.

The Utah Supreme Court has established the standards of review applicable to the instant case. In State v. Romero, 660 P.2d 715, 719 (Utah 1983), the Court ruled, "A reviewing court should pay great deference to a magistrate's determination of probable cause." Furthermore, in State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985), the Court held, "this Court will not disturb the ruling of the trial court on questions of admissibility of evidence unless it clearly appears that the lower court was in error."

Detective Smith's affidavit in support of the search warrant reads, in pertinent part, as follows:

On June 14, 1985, upon receipt of complaints of unusual traffic in the neighborhood of suspect premises by neighbors, affiant and other members of the State of Utah Narcotics and Liquor Law Enforcement began investigation and surveillance of said suspect premises. In plain view observation of premises affiant observed and photographed the residence showing three large steel storage sheds to rear; two swamp coolers that blow continually and empty into boarded up and bermed basement area; a furnace like apparatus with two large vent stacks are seen in garage area where windows are also boarded up, but are visible from roof line and when side door is open; a series of lights commonly used for grow lights were observed and photographed on swamp cooler; and neighbors have observed occupants of residence mixing up peat moss although the yard has never been cared for or cultivated in any fashion. A traffic survey of the area identified several cars for which ownership records identified a known drug user coming and going from the premises in the early morning hours. These vehicles stay only a short time then leave.

On numerous occasions a U-Haul truck has been located to the rear of the garage and neighbors have heard loading and unloading from the side door which is not as readily observable as the front garage door. This loading seems to occur at odd hours late at night. Neighbors have never seen the large garage door open. Neighbors reported seeing two large dogs with occupants when they were mixing peat moss, but most of the time the dogs remain inside.

Contact with Utah Power and Light showed service lines coming into the home three times larger than required of that size residence. Monthly power consumption four to five times in excess of normal, with one bill for $2,400.00 which suspect paid when meter reader came to read the meter. Utah Power and Light has been denied access to meter by Miller and has paid any bill without contest. The suspect, Allen B. Miller has prior illegal possession charges for possession of psilacybin mushrooms, 1/4 pound and possession of marijuana. Franklin David Spain of the same address has also been arrested for possession of marijuana in the last year. Miller according to neighbors acts very secretive when observed around premises.

Affiant, a trained narcotics officer knows that peat moss is used for growing marijuana and mushrooms and has observed numerous stacks of plastic buckets at the residence, knows that furnaces can be used to dry plants for usage, and that swamp coolers can vent and humify plants being grown in a basement as at suspect premises. Large electrical consumption would be used to facilitate grow lights and drying equipment; and the truck used to load shipments for periodic distribution or final cultivation of plants at another growing site. Credit report shows suspect Miller self-employed with Miller's autobody shop which does not seem to exist. Suspect truck observed at residence never has tools in it.

Smith, based on his experience as a narcotics officer, concluded the above information, when considered cumulatively, established probable cause that defendant was engaged in cultivating marijuana or other illegal substances.

The fourth amendment to the United States Constitution and article one, section fourteen of the Utah Constitution both require a finding of "probable cause supported by oath or affirmation" prior to issuance of a search warrant. The United States Supreme Court, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), redefined the test to determine whether an affidavit establishes the necessary probable cause:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed.

Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). The Utah Supreme Court adopted the Gates "totality of the circumstances" standard in State v. Anderson, 701 P.2d 1099 (Utah 1985), agreeing to review an affidavit "in its entirety and in a common-sense fashion...." Id. at 1102. In reestablishing the "totality of the circumstances" test, the United States Supreme Court rejected the former "Aguilar-Spinelli " test ¹ as "hypertechnical and divorced from [reality]." Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984).

In the instant case, the trial court, in its memorandum decision, reviewed all the information presented in Smith's affidavit. Acknowledging the training and experience of the officer, the court found, under the totality of the circumstances, the affidavit contained sufficient information to establish probable cause for a warrant.

Defendant argues the affidavit failed to address the veracity or reliability of the unidentified informant neighbors. Although no longer a required test under the Gates standard, the veracity or reliability of an informant is still a relevant consideration when reviewing the totality of the circumstances. Gates, 462 U.S. at 230, 103 S.Ct. at 2328; see also State v. Hansen, 732 P.2d 127, 130 (Utah 1987). However, the average neighbor witness is not the type of informant in need of independent proof of reliability or veracity. Rather, "[v]eracity is generally assumed when the information comes from an 'average citizen who is in a position to supply information by virtue of having been a crime victim or witness.' " State v. Harris, 671 P.2d 175, 180 (Utah 1983) (quoting LaFave, Search and Seizure § 3.3 (1978)).

Defendant further argues the "innocuous" facts presented in the affidavit are as consistent with innocent activity as with criminal activity. The trial court noted defendant "offered no evidence whatsoever as to what that equally consistent lawful conduct would be." To dissect the affidavit, fact by fact, is exactly the "hypertechnical" review the Gates test was reestablished to eliminate. See Upton, 466 U.S. at 732-33, 104 S.Ct. at 2087-88; Hansen, 732 P.2d at 130. Officers corroborated virtually all of the information received from the neighbors through their independent investigation and surveillance. When viewed as a whole, through the eyes of a trained, experienced officer, the facts become not so innocuous. ²

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