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State v. Crocker (08/27/2004) ap-1949
State v. Crocker (08/27/2004) ap-1949
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8462
Appellant, )
Trial Court No. 3HO-02-117 Cr
)
v. )
) O P I N
I O N
LEO RICHARDSON CROCKER JR., )
)
Appellee. )
[No. 1949 August 27, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Homer, M. Francis Neville,
Judge.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellant. Andrew Haas, Haas &
Spigelmyer, Homer, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
Leo Richardson Crocker Jr. was indicted for fourth-
degree controlled substance misconduct after the police executed
a search warrant at his home and found marijuana plants,
harvested marijuana, and marijuana-growing equipment. The
superior court later concluded that the search warrant for
Crockers home should not have been issued. The superior court
therefore suppressed all of this evidence and dismissed the
charges against Crocker. The State now appeals the superior
courts decision.
Our main task in this appeal is to clarify what the
State must prove in order to obtain a warrant to enter and search
a persons home for evidence of marijuana possession. The issue
arises because not all marijuana possession is illegal. In Ravin
v. State,1 the Alaska Supreme Court held that the privacy
provision of our state constitution (Article I, Section 22)
protects an adults right to possess a limited amount of marijuana
in their home for personal use. And recently, in Noy v. State,2
we held (based on Ravin) that Alaskas marijuana statutes must be
construed to allow possession by adults of any amount less than
four ounces of marijuana in the home for personal use.3
For the reasons explained in this opinion, we hold that
a judicial officer should not issue a warrant to search a persons
home for evidence of marijuana possession unless the States
warrant application establishes probable cause to believe that
the persons possession of marijuana exceeds the scope of the
possession that is constitutionally protected under Ravin. And,
because the States warrant application in Crockers case fails to
meet this test, we conclude that the superior court properly
suppressed the evidence against Crocker.
A search warrant application must establish probable
cause to believe that the property being sought is
connected to the commission of a crime.
Under AS 12.35.020, a judicial officer is
empowered to issue a warrant authorizing the police to
enter a premises and search for specified property if
the governments warrant application establishes
probable cause to believe:
that the property was stolen or
embezzled, or
that the property was used as a means of
committing a crime, or
that the property is the intended means
of committing a crime, and the property
either is in the possession of a person who
intends to commit the crime or is in the
possession of someone else to whom it has
been delivered for the purpose of concealing
it or otherwise preventing its discovery, or
that the property constitutes evidence
of a particular crime or tends to show that a
certain person has committed a particular
crime.
In every case, the government must establish
probable cause to believe that the property
being sought is connected in one of these
ways to the commission (or intended
commission) of a crime.
Not all possession of marijuana is a crime. Thus, when
the government seeks a warrant authorizing the search
of a home for marijuana or related paraphernalia, the
governments warrant application must establish probable
cause to believe that the marijuana possessed in that
home falls outside the type of possession protected
under Ravin.
Not all marijuana possession is a crime in
Alaska. Under Ravin and Noy, an adult may possess any
amount of marijuana less than four ounces in their
home, if their possession is for personal use. Thus,
it would seem that a court should not issue a search
warrant based on an allegation of marijuana possession
unless the State establishes probable cause to believe
that the type of marijuana possession at issue in the
case is something other than the type of possession
protected under Ravin. (For instance, a court might
properly issue a search warrant if the State
establishes probable cause to believe that the
marijuana is possessed for commercial purposes, or that
the amount of marijuana is four ounces or more.)
But the State disputes this conclusion. In
its brief to this Court, the State argues that Ravin
does not actually forbid the legislature from
criminalizing the possession of marijuana. Rather (the
State argues), Ravin established an affirmative defense
the defense of personal use that can be raised by
people who are charged with marijuana possession.
Based on this interpretation of Ravin, the State argues
that all possession of marijuana continues to be crime
in Alaska and, thus, a judicial officer can lawfully
issue a search warrant for evidence of marijuana
possession so long as the State establishes probable
cause to believe that the premises to be searched
contains any marijuana (or any other property tending
to show possession of marijuana).
We addressed and rejected this same argument
in our opinion on rehearing in Noy:
Ravin did not create an affirmative
defense that defendants might raise, on a
case-by-case basis, when they were prosecuted
for possessing marijuana in their home for
personal use. ... [T]he Alaska Supreme
Court has repeatedly and consistently
characterized the Ravin decision as
announcing a constitutional limitation on the
governments authority to enact legislation
prohibiting the possession of marijuana in
the privacy of ones home.
Accordingly, we reject the States
suggestion that Ravin left Alaskas marijuana
statutes intact but created an affirmative
defense to be litigated in each individual
case.
Noy (opinion on rehearing), 83 P.3d at 547-
48.
The State further argues that if
search warrant applications must establish
probable cause to believe that the marijuana
possession at issue in that case falls
outside of the marijuana possession protected
by Ravin, this would be tantamount to a
presumption that all marijuana possessed in a
home is for purely personal use. But this
presumption of non-criminality is built into
the search and seizure clause of the Alaska
Constitution and the statutory law governing
the issuance of search warrants.
Before a search warrant can
lawfully issue, the government must establish
probable cause to believe that the evidence
being sought is connected to a crime. This
same rule governs search warrants for all
controlled substances, not just marijuana.
Every day, people obtain controlled
substances legally through a doctors
prescription. For instance, several
prescription painkillers contain codeine,
which is a Schedule IA controlled substance.4
Our state constitution protects people from
government intrusion into their homes unless
the government affirmatively establishes a
valid reason for the intrusion. Thus, even
though the police may have firm information
that a person currently possesses codeine in
their home, a judicial officer should not
issue a warrant that authorizes the police to
enter the persons home and search the persons
cupboards and drawers for evidence of this
codeine possession unless the police also
present the magistrate with some affirmative
reason to believe that the codeine was
obtained illegally or that (having been
obtained lawfully) it is being distributed
illegally.
The same rule applies to marijuana
possession. Under the supreme courts
decision in Ravin and our recent decision in
Noy, not all possession of marijuana is
illegal. Rather, Alaskans have a right to
possess a limited amount of marijuana for
personal use in their homes. We accordingly
hold that no search warrant can issue for
evidence of marijuana possession unless the
State affirmatively establishes probable
cause to believe that the type of marijuana
possession at issue in that case is something
other than the type of possession protected
under Ravin.
As the State correctly points out,
the question is one of probable cause, not
ultimate proof. Thus, the search warrant
application need not negate every other
reasonable, exculpatory explanation of the
observed facts.5 But the search warrant
application can not rely solely on the fact
that someone is in possession of marijuana.
The warrant application must provide an
affirmative reason to conclude that the
possession is illegal or that the marijuana
otherwise constitutes evidence of a crime.
In his dissent, Judge Coats asserts
that this holding is a departure from
precedent. He points out that, in several
prior decisions, this Court has accepted the
premise that the smell of growing marijuana
could establish probable cause for a search
of a home. But those cases were decided in
the context of state law that forbade any and
all possession of marijuana (and the parties
did not attack that law under Ravin). Thus,
in those prior instances, the smell of
growing marijuana emanating from a house was
persuasive evidence that someone was breaking
the law. That is no longer the case.
Judge Coats also seconds the States
argument that, if we require the police to
present the magistrate with some reason to
believe that a homeowners possession of
marijuana is illegal, we are creating the
unwarranted presumption that all possession
of marijuana is legal. This is a
misunderstanding of our decision.
Our holding does not rest on a
presumption, one way or the other, about
whether a particular instance of possession
of marijuana in the home is legal. Rather,
our holding rests on the constitutional
principle that no search warrant can issue
until the police present a magistrate with
good reason to believe that the law has been
broken (and that evidence of that illegality
can be found on the premises to be searched).
Evidence that a person possesses an
unspecified quantity of marijuana in their
home does not, standing alone, establish
probable cause to believe that the person is
breaking the law. Thus, without some
additional indication of illegality (for
instance, evidence suggesting that the
marijuana is being sold, or that the amount
of marijuana equals or exceeds the statutory
ceiling of four ounces), the search and
seizure provision of our state constitution
(Article I, Section 11) prohibits the
issuance of a search warrant.
Under the law advocated by the
State and by Judge Coats in his dissent (that
is, if possession of any amount of marijuana
in ones home constituted adequate grounds for
the issuance of a search warrant), Alaska
citizens would have the constitutional right
to possess marijuana for personal use in
their homes, but they would exercise this
right at their peril because their
possession of marijuana would subject them to
thorough-going police searches of their
homes. If this were the law, the Alaska
Constitutions protection of the right of
privacy in ones home the cornerstone of the
Ravin decision would be eviscerated.
We therefore reiterate that no
search warrant can issue for evidence of
marijuana possession unless the State
affirmatively establishes probable cause to
believe that the type of marijuana possession
at issue in that case is something other than
the type of possession protected under Ravin.
The States search warrant application in Crockers case
failed to establish probable cause to believe that
his possession of marijuana fell outside the realm
of marijuana possession that is protected under
Ravin.
The search warrant application in Crockers
case begins with seven pages of boilerplate
dozens of paragraphs containing general
descriptions of how marijuana is normally grown
and processed. The warrant application then
contains one page of factual assertions specific
to Crockers case.
According to these case-specific assertions,
the state troopers received a tip from an
unidentified confidential source that marijuana
cultivation was being conducted in the Anchor
Point residence of Debra Steik. Based on this
tip, two officers visited the Steik residence to
conduct an investigative contact. The two
officers smelled a strong odor of growing
marijuana when they stood at Steiks front door.
Thus, there was ample probable cause to believe
that marijuana was being grown inside the
residence. The question, however, is whether
there was probable cause to believe that this
marijuana was being grown for commercial purposes
or that the amount of marijuana inside the house
exceeded the amount protected under the Ravin and
Noy decisions.
The State asserts that the strength of the
smell (including the fact that the officers could
detect the odor while standing outside the house) tends
to show that the amount of marijuana inside the house
must have exceeded the amount protected by Ravin and
Noy. But the search warrant application contains no
assertion that the strength of the smell gave the
officers any indication of the amount of marijuana that
might be growing in the house.
Moreover, we can not simply assume that there
is a direct proportionality between the strength of the
odor and the amount of marijuana giving rise to that
odor. We addressed a similar issue in Ballard v.
State, 955 P.2d 931 (Alaska App. 1998), where we
concluded that nystagmus (an involuntary jerking of a
persons eyeball as they attempt to follow the path of a
moving object) is a reliable indicator of alcohol
consumption, but that there is no direct correlation
between the degree of a persons nystagmus and the
amount of their alcohol consumption or intoxication.
Id. at 933, 939-940, 942.
There may or may not be a correlation between
the strength of the odor of growing marijuana and the
amount of marijuana being grown. But the search
warrant application in the present case makes no
assertion concerning such a potential correlation, and
we will not assume such a correlation in the absence of
evidence.
Moreover, even if such a correlation exists,
the officer in this case merely asserted that the odor
was strong. There was nothing to indicate whether an
odor of this unexplained degree of strength provided a
reasonable basis for concluding that the amount of
marijuana in the house exceeded the amount protected
under Ravin and Noy.
The State also argues that the amount of
electricity usage at the Steik residence provided
probable cause to believe that the amount of marijuana
inside the house exceeded the amount of marijuana
protected under Ravin and Noy.
After receiving the tip from their
confidential source that marijuana was being grown at
the Steik residence, the police employing unspecified
means conducted a check of the utility usage at the
residence. They discovered that, over the preceding
thirteen months, the average electricity usage at
Steiks home was 56.6 kilowatt hours per day. The
officer who applied for the search warrant asserted
that, [b]ased on [his] training and experience, the
[electricity] consumption at [Steiks] residence [was]
higher than average for a home of [its] size.
One of the boilerplate paragraphs of the
search warrant application contains an assertion that,
according to the Homer Electric Association,
prospective customers should expect an average monthly
[electricity] consumption of approximately 22 [kilowatt-
hours] per day with natural gas heating, and 27 to 31
[kilowatt-hours] per day with electric heat. However,
the search warrant application does not describe Steiks
house (other than identifying its address). The
magistrate had no way of knowing whether Steiks house
was of average size or was smaller or larger than
average. Thus, the magistrate had no way of knowing
whether one would reasonably expect Steiks electricity
usage to fall within, below, or above the average range
for all of the Homer Electric Associations customers.
Indeed, when the officer who applied for the
search warrant made his assertion about the higher than
average electricity usage at Steiks residence, he did
not rely on the estimate given by the Homer Electric
Association. Rather, the officer relied on his
training and experience. But the officer did not
explain what training or experience he might have
received that would allow him to offer an informed
opinion concerning the typical or average electricity
usage for homes of various sizes.
And although the officer asserted that the
electricity usage at Steiks home was higher than
average for a house its size, the officer did not say
how much higher than average this usage was. When an
average amount of electricity usage has been identified
for a particular type or size of house, this means that
many (conceivably, up to half) of those houses will
have electricity usage that is higher than average.
Thus, even if we credit the officers assertion that the
Steik residence was using more electricity than average
for a house its size, this unelaborated assertion did
not significantly bolster the assertion that Steiks
house was the site of marijuana cultivation. Much less
did this higher than average electricity usage
establish probable cause to believe that the amount of
marijuana being cultivated in the house exceeded the
amount protected under Ravin and Noy.
For these reasons, we conclude that even
though the search warrant application established
probable cause to believe that marijuana cultivation
was being conducted inside the residence, the warrant
application failed to establish probable cause to
believe that this marijuana cultivation was for
commercial purposes or that the amount of marijuana
being cultivated exceeded the amount protected under
Ravin and Noy. Accordingly, the search warrant should
not have been issued, and the superior court correctly
suppressed the evidence obtained under the authority of
that warrant.
Conclusion
The judgement of the superior court is
AFFIRMED.
COATS, Chief Judge, dissenting.
In reviewing whether a magistrate properly
issued a search warrant, this court is to give the
magistrates findings great deference. This court
view[s] the evidence in the light most favorable to
upholding the warrant and will only invalidate the
warrant if the magistrate abused her discretion.1 We
are to uphold the decision to issue the search warrant
in doubtful or marginal cases.2 When I apply this
standard, I conclude that the information contained in
the warrant established a fair probability that Crocker
possessed an unlawful amount of marijuana. I would
therefore uphold the warrant.
In several prior decisions, this court has
upheld search warrants that were based primarily on
testimony from police officers that they smelled the
strong odor of growing marijuana coming from a
particular source.3 In its decision today, the court
overrules all these prior cases and adds a further
requirement for the State to obtain a warrant: the
State must prove that the growing marijuana was not a
small quantity being grown for personal use, protected
by Ravin v. State.4 I would adhere to our precedent.
Our former cases, going back many years,
accepted the conclusion that where the police could
establish that there was a strong odor of growing
marijuana, there was probable cause that there was
criminal activity and that a search warrant could
properly be issued. Without any notice to the State,
the court has suddenly reversed ground. The court now
assumes that a marijuana growing operation is protected
by Ravin and that the State has the duty to disprove
this presumption before obtaining a search warrant. I
do not see any basis for the majoritys presumption,5
and therefore, I would follow our former precedent.6
The majority states that our prior cases are
questionable authority because they were decided in the
context of a state law that forbade any and all
possession of marijuana. But Ravin has been the law in
Alaska since 1975. So in our prior cases the parties
and the court had to be aware of Ravin. Furthermore,
the state statute which was based on the initiative
that forbade any and all possession of marijuana was in
effect at the time the warrant was issued in this case.
Noy v. State, striking down that law, was decided long
after the magistrate issued the search warrant in
Crockers case.7
I certainly believe, as does the majority,
that it is this courts duty to follow the supreme
courts decision in Ravin. My concern, however, is that
the majoritys decision actually threatens the viability
of Ravin by departing from our former precedent and
operating on the assumption that a marijuana growing
operation is legal unless the State shows otherwise.
The majoritys decision makes it difficult for the State
to enforce legitimate laws prohibiting the possession
and sale of marijuana.
_______________________________
1 537 P.2d 494 (Alaska 1975).
2 83 P.3d 538 (Alaska App. 2003), on rehearing, 83 P.3d 545
(Alaska App. 2003).
3 Noy, 83 P.3d at 542-43, on rehearing, 83 P.3d at 546-48.
4 AS 11.71.140(b)(1)(G).
5 See McCoy v. State, 491 P.2d 127, 130 (Alaska 1971);
State v. Grier, 791 P.2d 627, 632 n. 3 (Alaska App.
1990).
1 Van Buren v. State, 823 P.2d 1258, 1261 (Alaska App. 1992)
(citing State v. Chapman, 783 P.2d 771, 772 (Alaska App.
1989)).
2 McClelland v. State, 928 P.2d 1224, 1225 (Alaska App.
1996); State v. Conway, 711 P.2d 555, 557 (Alaska App.
1985).
3 See, e.g., Lustig v. State, 36 P.3d 731, 732-33 (Alaska
App. 2001); Wallace v. State, 933 P.2d 1157, 1163 (Alaska
App. 1997); McClelland, 928 P.2d at 1226-27; Landers v.
State, 809 P.2d 424, 424-25, 426-27 (Alaska App. 1991).
4 537 P.2d 494 (Alaska 1975).
5 See Illinois v. Gates, 462 U.S. 213, 245 n.13, 103 S.Ct.
2317, 2335 n.13, 76 L.Ed.2d 527 (1983) (stating that
innocent behavior frequently will provide the basis for a
showing of probable cause); Van Sandt v. Brown, 944 P.2d
449, 452 (Alaska 1997) (quoting Murdock v. Stout, 54 F.3d
1437, 1441 (9th Cir. 1995)) (stating that probable cause
requires only a fair probability or substantial chance of
criminal activity, not an actual showing that such activity
occurred); McCoy v. State, 491 P.2d 127, 130 (Alaska 1971)
(holding that probable cause existed despite possible
innocent explanation for conduct); Badoino v. State, 785
P.2d 39, 41 (Alaska App. 1990) (quoting Harrelson v. State,
516 P.2d 390, 396 (Alaska 1973)) (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.); State v. Grier, 791 P.2d 627, 632 n.3 (Alaska
App. 1990) ([P]robable cause is established even though the
facts known to the officer could also be reconciled with
innocence.); Dunn v. State, 653 P.2d 1071, 1079 (Alaska App.
1982) (holding that probable cause existed even though
various factors, if taken individually, are as readily
consistent with innocence as guilt, ... the main point to be
made is that the factors did not occur individually, and in
isolation from each other); People v. Atley, 727 P.2d 376,
377-78 (Colo. 1986) (holding that the state established
probable cause when the suspects apartment did not appear to
be lived in and the apartment contained a mushroom growing
operation even though the informants observations were as
consistent with growing lawful mushroom plants, as they were
with growing psychedelic mushrooms containing psilocybin, a
controlled substance).
6 See Planned Parenthood of Southeastern Penn. v. Casey, 505
U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992)
(explaining that courts have a duty and obligation to follow
precedent); State v. Coon, 974 P.2d 386, 394 (Alaska 1999)
(quoting State v. Fremgen, 914 P.2d 1244, 1245 (Alaska
1996)) (stating that courts should reverse prior decisions
only when they are clearly convinced that the rule was
originally erroneous or is no longer sound because of
changed conditions, and that more harm than good would
result from a departure from precedent).
7 Noy v. State, 83 P.3d 538 (Alaska App. 2003) was issued in
2003, while the warrant in this case was issued in 2001.
