Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Lustig v State (11/23/2001) ap-1773
Lustig v State (11/23/2001) ap-1773
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BENJAMIN LUSTIG, )
) Court of Appeals No. A-7756
Appellant, ) Trial Court No. 3PA-S99-218 CR
)
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1773 November 23, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Phillip Weidner, Weidner &
Associates, Inc., Anchorage, for Appellant. Kevin F. Burke,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
The police served a search warrant on Benjamin Lustig's
property in Wasilla and seized marijuana and other evidence that
led to Lustig's indictment on three counts of fourth-degree
misconduct involving a controlled substance. [Fn. 1] Lustig moved
to suppress the evidence seized when the warrant was executed, but
the superior court denied the motion. Lustig pleaded no contest to
one count of fourth-degree misconduct involving a controlled
substance [Fn. 2] while preserving his right to appeal the denial
of the suppression motion. [Fn. 3] We affirm Lustig's conviction
because we conclude the search warrant was supported by probable
cause.
Facts and proceedings
At about 4:00 a.m. on January 6, 1999, Alaska State
Trooper Kyle Young smelled growing marijuana on Pittman Road in
Wasilla. Young identified one residence as the source of the odor
after ruling out other structures in the vicinity as the source of
the smell. The suspect residence was a single story structure of
about 1200 square feet. Young located the utility pole that served
the residence and contacted the Matanuska Electric Association
(MEA).
The MEA told Young that Lustig was the customer at the
residence. The MEA also told Young that Lustig's daily electrical
use averaged 80 kilowatt hours (KWH) for December, 60 KWH for
November, 73 KWH for October, and 70 KWH for September.
Later that same day, Young included this information in
an affidavit in support of a search warrant application along with
information about the average electrical consumption at his own
residence a single family dwelling of about 1400 square feet with
electric heat and many electric appliances including two freezers,
a refrigerator, a washer and dryer, a dishwasher, a television, an
electric stove, a microwave oven, a video cassette recorder, and a
computer. Young stated his household electric consumption averaged
30 to 36 KWH per day. The magistrate issued the search warrant.
Troopers served the warrant five days later. The troopers
found twenty-five grams of processed marijuana, marijuana stems, and
two gallon-sized plastic bags containing slightly more than one
pound of dried marijuana buds. They also found a trap door under
a mattress that led to an underground concrete room. In the
underground room, they found five 1000 watt halide lights suspended
from the ceiling on wires which allowed the lights to be raised and
lowered. They also found electric timers, marijuana leaves, a
humidifier, approximately one hundred used black plastic pots, used
bamboo stakes, fans, and a system of twelve inch ventilation ducts
that vented under a pile of pallets under the snow in the back yard.
In a separate shop building, the troopers found ten large plastic
garbage bags containing marijuana growing debris.
Lustig argued that the search warrant was not supported
by probable cause. Superior Court Judge Eric Smith rejected all of
Lustig's claims in a written decision.
Was the search warrant supported by probable cause?
Lustig contends the magistrate could not rely on Young's
assertion that he had smelled growing marijuana. Lustig claims
Young did not supply sufficient detail about where he was when he
smelled growing marijuana, what was the prevailing wind, or how he
concluded Lustig's residence was the source of the odor to the
exclusion of other structures in the area. But Young's affidavit
identified Lustig's residence as the source of the marijuana odor
and stated that he excluded other nearby structures as the source
of the odor. Although Lustig identifies several questions a
magistrate could properly put to Young, such as how close Young was
to Lustig's residence when he smelled marijuana, the magistrate was
not compelled to ask the affiant additional questions if the
affidavit provided probable cause to believe evidence of a crime
would be found in Lustig's residence.
In McClelland v. State, [Fn. 4] we recognized that the
weight of authority accepts the testimony of an observer familiar
with the smell of growing marijuana or the odor of burning marijuana
to support probable cause to believe growing or burning marijuana
is present. [Fn. 5] In that case, we upheld a search warrant based,
in part, on the statements of two police officers that they smelled
growing marijuana in McClelland's residence. [Fn. 6] And in Landers
v. State, [Fn. 7] we upheld a search warrant based on the statements
of two officers that they smelled the odor of growing marijuana in
a residence and the admission of an occupant that there was
marijuana in the residence. [Fn. 8]
Lustig argues that his case can be distinguished because
only one police officer, Trooper Young, smelled growing marijuana.
But Lustig has provided no authority for the proposition that the
State must present the observations of more than one officer to
establish probable cause.
Lustig also argues that the information Young supplied
about the electric consumption was not indicative of criminality nor
did it rule out legitimate use. [Fn. 9] But Young's perception of
the odor of growing marijuana provided reason to believe criminal
activity was occurring in Lustig's residence, and the relatively
high electrical consumption described in the affidavit tended to
corroborate Young's perception of the odor of growing marijuana.
"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.'" [Fn. 10] Young's affidavit stated that he
was experienced in recognizing the smell of growing marijuana and,
based on his sense of smell, had discovered other locations where
marijuana was cultivated. Young stated that he smelled growing
marijuana on Pittman Road, ruled out other structures as the source
of the odor, and identified Lustig's residence as the source. Young
learned from MEA that Lustig's electrical use was high compared to
his own electrical use in a larger home which had electric heat.
From our review of the record, we conclude the search warrant was
supported by probable cause.
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(2), (a)(3)(F), and (a)(5).
Footnote 2:
AS 11.71.040(a)(3)(F) (Lustig knowingly possessed one pound or
more of marijuana).
Footnote 3:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 4:
928 P.2d 1224 (Alaska App. 1996).
Footnote 5:
See id. at 1226.
Footnote 6:
See id.
Footnote 7:
809 P.2d 424 (Alaska App. 1991).
Footnote 8:
See id. at 426-27.
Footnote 9:
See Carter v. State, 910 P.2d 619, 626 (Alaska App. 1996).
Footnote 10:
Van Buren v. State, 823 P.2d 1258, 1261 (Alaska App. 1992)
(quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).
