Notice: This opinion is subject
to formal correction before
publication in the Pacific
Reporter. Readers are requested
to bring typographical or other
formal errors to the attention of
the Clerk of the Appellate
Courts, 303 K Street,
Anchorage, Alaska 99501, in
order that corrections may be
made prior to permanent
publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL A. McCLELLAND, )
) Court of Appeals No. A-5986
Appellant, ) Trial Court No. 3PA-S94-1762CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
) [No. 1503 - December 6, 1996]
Appellee. )
)
Appeal from the Superior Court, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Eugene B. Cyrus, Chugiak, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges.
COATS, Judge.
Michael A. McClelland was convicted, based upon his plea of no contest, of
misconduct involving a controlled substance in the fourth degree (possession of more than one
pound of marijuana), a class C felony. AS 11.71.040(a)(3)(F). Superior Court Judge Beverly
W. Cutler sentenced McClelland, a second felony offender for purposes of presumptive
sentencing, to a mitigated presumptive sentence of two years with one year suspended. Judge
Cutler placed McClelland on probation for a period of three years following his incarceration.
In entering his no contest plea, McClelland reserved his right to appeal Judge Cutler's denial of
his motion to suppress. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). McClelland
appeals to this court. We affirm.
McClelland contends that Judge Cutler erred by denying his motion to suppress.
In McClelland's motion to suppress, he argued that Magistrate David L. Zwink erred in issuing
a search warrant authorizing the police to search McClelland's residence for marijuana plants
and other evidence related to a suspected marijuana-growing operation. McClelland argues that
the state did not present sufficient information to Magistrate Zwink to establish probable cause
to issue the warrant.
This court may reverse a magistrate's decision to issue a search warrant only if
the decision was an abuse of discretion. State v. Bianchi, 761 P.2d 127, 129-30 (Alaska App.
1988). The magistrate's findings are entitled to great deference, and must be upheld in doubtful
or marginal cases. State v. Conway, 711 P.2d 555, 557 (Alaska App. 1985). In determining
the validity of the warrant, this court may only consider information brought to the magistrate's
attention, State v. Jones, 706 P.2d 317, 326 (Alaska 1985), and must consider this information
in a reasonable and common-sense manner. State v. Chapman, 783 P.2d 771, 772 (Alaska App.
1989).
In determining whether there is probable cause to issue a search warrant, the
magistrate need not determine whether the items to be searched for are in fact located at the
premises to be searched, but only whether there is a reasonable ground to believe they are there.
Metler v. State, 581 P.2d 669, 672 (Alaska 1976); Van Buren v. State, 823 P.2d 1258, 1262
(Alaska App. 1992). "Probable cause to issue a search warrant exists when 'reliable information
is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime
has been or was being committed.'" Id. at 1261; Badoino v. State, 785 P.2d 39, 41 (Alaska
App. 1990).
Therefore, to determine whether the state presented sufficient probable cause to
authorize Magistrate Zwink to issue a search warrant, we review the evidence which the state
presented at the search warrant proceeding. Alaska State Troopers Neil Bleicher and Jeanine
Santora testified at that proceeding. The troopers testified that on June 30, 1994, they went to
the residence of Michael McClelland. They knocked on the door of the residence, and a person
who identified herself as Ingrid Jones answered the door. Jones told the troopers that she was
Michael McClelland's girlfriend. The troopers both testified that while they talked to Jones at
the door of the residence, they smelled the odor of growing marijuana. Both troopers testified
that growing marijuana has a distinctive odor and that they were familiar with that smell.
Trooper Bleicher testified that he had smelled growing marijuana previously on numerous
occasions. He testified that growing marijuana has a particular, unique smell and that the odor
which he smelled at McClelland's residence was consistent with what he had smelled on previous
occasions when he had encountered growing marijuana. The troopers indicated that Jones did
not consent to allow them to search McClelland's residence. Jones stated that, as a guest, she
did not think she should authorize a search. However, when the police asked to search Jones'
vehicle, Jones handed the police a small bag of marijuana and a marijuana pipe from her vehicle.
The troopers also told Magistrate Zwink that they had talked to an employee of
the Matanuska Electric Association, John Bogue. According to the troopers, Bogue told them
that McClelland's electrical use at his residence was "high and suspicious." The troopers
testified that Jones told them that McClelland's residence was also heated by natural gas.
At the conclusion of the search warrant proceeding, Magistrate Zwink concluded
that the state had established probable cause to issue a search warrant. In so finding, Magistrate
Zwink emphasized that two experienced officers, who were familiar with the smell of growing
marijuana from their professional experience, had detected esidence. The magistrate stated that
he was familiar with Matanuska Electric Association employee John Bogue, who had testified
before the court more than a dozen times. He found that Bogue's estimates of electrical usage
were credible, and Bogue's conclusion that McClelland's electrical usage was "high and
suspicious" corroborated the officers' testimony that they had smelled growing marijuana at
McClelland's residence. He concluded that there was probable cause to believe that McClelland
was growing marijuana at his residence and issued the search warrant.
McClelland contends that "the sole incriminating fact to [sic] used for probable
cause is the testimony of the two troopers that they smelled growing marijuana." McClelland
relies on State v. Olson, 589 P.2d 663 (Mont. 1979), where the court stated that "the odor of
burning marijuana, does not by itself establish probable cause to issue a search warrant."
However, McClelland recognizes that the Olson case stands alone, and that the vast majority of
cases support the conclusion that either the smell of growing marijuana or the odor of burning
marijuana will support the issuance of a search warrant. The cases that support the issuance of
a warrant under such circumstances are collected in 2 Wayne R. LaFave, Search and Seizure
 3.6(b), at 290-91 (3d ed. 1996). LaFave begins his discussion with the leading case of
Johnson v. United States, 333 U.S. 10 (1948). In Johnson, a police officer smelled the þstrong
odor of burning opium." The court stated that probable cause may be established by smell. It
held that it could not
sustain defendant's contention . . . that odors cannot be evidence
sufficient to constitute probable grounds for any search . . . . If
the presence of odors is testified to before a magistrate and he
finds the affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden substance, this Court
has never held such a basis insufficient to justify issuance of a
search warrant. Indeed it might very well be found to be evidence
of the most persuasive character.
Professor LaFave continues:
Most of the recent cases have dealt with marijuana. It appears to
be generally accepted that the smell of marijuana in its raw form
or when burning is sufficiently distinctive to come within the rule
of the Johnson case. Consequently, the courts have found
probable cause to search when the distinctive odor of marijuana is
found emanating from a particular place and have likewise found
probable cause to arrest when the odor was detected coming from
a particular person.
LaFave, supra (footnotes omitted).
Prior Alaska cases have recognized the probative value of
testimony from law enforcement officers that they detected the odor
of marijuana. In Daygee v. State, 514 P.2d 1159, 1163 (Alaska
1973), the court found that a police officer "who had extensive
training in detecting marijuana" could use the facts that "he
recognized the smell of marijuana burning and the substance in a
bag looked like marijuana, which he had seen previously" to provide
the officer with probable cause to arrest and seize the evidence
pursuant to an arrest. In Landers v. State, 809 P.2d 424, 427
(Alaska App. 1991), we found that "the police had sufficient
information to obtain a warrant based upon their testimony that
they smelled an overpowering odor of growing marijuana when they
entered the residence, and based upon the statements which the
police testified that [an occupant] made to them."
In the present case, two police officers testified that they smelled the odor of
marijuana coming from McClelland's residence. Both officers testified that they were familiar
with the odor of growing marijuana and could identify that odor. In addition to the testimony
that they had smelled marijuana at McClelland's residence, the officers also presented testimony
concerning McClelland's high electrical usage (EN1) and the fact that Jones was in possession
of marijuana in her vehicle. We therefore conclude that Judge Cutler did not err by denying
McClelland's motion to suppress. We conclude that Magistrate Zwinkþs decision to issue the
search warrant was not an abuse of discretion.
AFFIRMED.
ENDNOTES:
1. In Carter v. State, 910 P.2d 619, 626 (Alaska App. 1996), we
stated:
For this reason, courts in other juris-
dictions have tended to find evidence of
unusual electrical consumption to be
significant to the overall determination of
probable cause only if other solid facts have
been presented to the issuing magistrate to
indicate that criminal activity is afoot or to
eliminate legitimate explanations for the
unusual consumption. Absent solid facts
indicating criminality or nonlegitimate
consumption, courts have concluded that
electrical records showing unusual consumption
þeven when combined with conclusory anonymous
tips of drug-related activityþare insufficient
to establish probable cause.
(Footnotes omitted.)
In the present case, the decisive factor establishing probable
cause was the officers' testimony that they smelled the odor of
marijuana. McClelland's high electrical consumption merely
corroborated the officers' testimony that they smelled marijuana.
The troopers' testimony that they smelled marijuana constituted
"solid facts [indicating] that criminal activity is afoot."
