State v. Moyer
| Decision Date | 02 June 2011 |
| Docket Number | No. 29188-0-III,29188-0-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Appellant, v. KIMBERLEE A. MOYER, Respondent. |
Brown, J. — The State appeals the trial court's grant of evidence suppression in its controlled substance case against Kimberlee Moyer. The State contends the information provided was not stale and that probable cause supported the search warrant used to gather incriminating evidence against Ms. Moyer. We reason the information sufficiently supported search warrant issuance, and reverse.
On January 8, 2009, Detective Josh Mathena received anonymous information about Ms. Moyer growing marijuana in the basement of her house located at 807 Orondo Street and learned Ms. Moyer was a continuing, long-time marijuana user. Theinformant indicated Ms. Moyer's 16-year-old son was a marijuana user who the informant believed was supplied by Ms. Moyer. No information was received about where Ms. Moyer's son was living. Detective Mathena confirmed Ms. Moyer was listed as living at 807 Orondo Street. Ms. Moyer's criminal records showed an arrest in 2002 for driving under the influence and possession of 40 grams or less of marijuana; Ms. Moyer was convicted of negligent driving in the first degree, and the marijuana charge was dismissed.
That evening, Detective Mathena directed Wenatchee police officers to stop by Ms. Moyer's house. When the officers knocked on the door as part of a ruse, Ms. Moyer answered, but did not open the door all the way. The officers had a brief conversation with Ms. Moyer. One officer stated Ms. Moyer acted "very suspicious and nervous" and watched the officers as they left. Clerk's Papers (CP) at 36. The officers then drove through the alley behind Ms. Moyer's house. They saw Ms. Moyer retrieve a garbage bag from her garbage can in the alley and take the bag inside the house. Detective Mathena stated his training and experience taught him indoor marijuana growers will often throw away evidence relating to the grow operation, such as marijuana leaves and stems, as well as marijuana growing equipment.
On January 13, 2009, Detective Mathena spoke with utility district employee Scot Erickson concerning the power usage at 807 Orondo Street. According to Detective Mathena, Mr. Erickson indicated Ms. Moyer was the only person on the account for the residence and her power usage was unusually and consistently higherthan it should be; Mr. Erickson compared Ms. Moyer's house to a four bedroom house with a family of six, and Ms. Moyer's house used 1,000 kilowatts more during the month of June 2008. Detective Mathena confirmed with landlord Edward Wendt that Ms. Moyer rented 807 Orondo, a house with a basement. Between January 14, 2009 and March 18, 2009, Detective Mathena spent several nights walking through the alley behind Ms. Moyer's residence unsuccessfully attempting to smell marijuana.
On March 18, 2009, Detective Mathena spoke with Corporal Tim Lykken about his observations at 807 Orondo Street on March 15, 2009, when he and two other officers responded to a domestic violence call at 807 Orondo Street. Ms. Moyer was the suspect and the victim was her daughter, S.E. Ms. Moyer was arrested for assault fourth degree domestic violence. According to Detective Mathena:
CP at 37. Corporal Lykken said he had been around marijuana over 100 times and could identify marijuana smell from his training and experience. Corporal Lykken did not doubt the odor he smelled inside the house was marijuana.
Based on the above facts, Detective Mathena applied for a search warrant for 807 Orondo Street. A search warrant was signed on March 18, 2009 at 10:58 a.m. On March 20, 2009, at approximately 10:28 a.m., Detective Mathena, along with the assistance of other officers, served the search warrant at 807 Orondo Street. During the search, officers found 43 small marijuana plants as well as processed marijuana.
On June 22, 2009, the State charged Ms. Moyer with manufacture of marijuana, possession of marijuana with intent to deliver, and maintaining a drug property.
Ms. Moyer moved to suppress, arguing the search warrant affidavit contained insufficient facts to support probable cause to search. At the suppression hearing all seemed to agree that, without the smell of marijuana, all of the other facts in the affidavit, individually or taken together, were insufficient to establish probable cause. The court reasoned the information regarding the smell of marijuana was stale because Corporal Lykken did not follow up on the odor after March 15, and nothing indicated whether the smell was of fresh, growing marijuana, or smoked or burnt marijuana. The court ordered the evidence suppressed and dismissed the charges.
The State appealed.
The issue is whether the trial court erred in deciding no probable cause existed to issue the search warrant before suppressing the evidence and dismissing the case.
A trial court's legal conclusion as to whether an affidavit establishes probable cause is reviewed de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).Our review is limited to the four corners of the affidavit, however. Id. "[T]he information we may consider is the information that was available to the issuing magistrate." State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110 (1994). We, in turn, review a magistrate's decision to issue a warrant for an abuse of discretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). The magistrate's decision should be given great deference. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). "All doubts are resolved in favor of the warrant." State v. Anderson, 105 Wn. App. 223, 228, 19 P.3d 1094 (2001).
Probable cause is required to issue a search warrant. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). "Probable cause exists where the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location." Id.
Here, the affidavit in support of the search warrant offered information obtained from an anonymous informant's telephone call. To establish probable cause based on an informant's tip, the affidavit must demonstrate the basis for the informant's information and the basis for the officer's conclusion that the informant was credible (the two prongs of the Aguilar-Spinelli1 test). State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002). Usually both prongs of the Aguilar-Spinelli test must be established by information provided to the magistrate; however, any deficiency in one or both prongsmay be cured by independent police investigation that corroborates the informant's tip. Id. This investigation must point to indications of criminal activity along the lines indicated by the informant. State v. Huft, 106 Wn.2d 206, 210, 720 P.2d 838 (1986); State v. Rakosky, 79 Wn. App. 229, 239, 901 P.2d 364 (1995).
Here, the trial court reasoned, "without the information in the affidavit that [Corporal] Lykken smelled marijuana[,]" the affidavit could not support probable cause for a search warrant. CP at 33. The trial court did not make any findings regarding the other factual bases in the affidavit. It dismissed the case because it determined the information regarding the smell of marijuana was necessary for probable cause and that specific information was stale.
However, the police investigation provided additional information: (1) Ms. Moyer had been arrested for possession of marijuana in the past; (2) Ms. Moyer did not invite investigating officers into her residence; (3) Ms....
To continue reading
Request your trial