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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9733 | |
| Appellant, | ) Trial Court No. 3KN-06-330 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| NICK L. SMITH, | ) |
| ) | |
| Appellee. | ) No 2166 May 2, 2008 |
| ) | |
Appeal from the Superior Court, Third
Judicial District, Kenai, Harold M. Brown,
Judge.
Appearances: Blair M. Christensen, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellant. Peter F. Mysing, Kenai,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
The superior court granted Nick L. Smiths motion to
suppress evidence and dismiss his indictment. Smiths motion
contended that the search warrant that led to his indictment was
issued without probable cause. We conclude that the affidavit
supporting the search warrant application, on its face, provided
probable cause for issuing the search warrant. Accordingly, we
reverse the superior courts order suppressing the evidence and
dismissing the indictment. However, we conclude that Smith has
raised a potential attack on the validity of the search warrant
that was not raised during the litigation of Smith s motion.
Smith can pursue that line of attack when the case returns to the
superior court for further proceedings on the indictment.
Background facts and proceedings
On December 1, 2005, Investigator Kyle Young of the
Alaska Bureau of Alcohol and Drug Enforcement applied for a
search warrant to search Smiths mobile home at Canova Court in
Nikiski for a possible marijuana grow operation. In support of
his application, Young provided a thirteen-page affidavit.
The affidavit supplied the following information.
Young drove by Smiths mobile home at Canova Court in Nikiski on
November 28 and 29, 2005, and he noticed that there was a great
deal of snow on the three vehicles parked at the residence. On
December 1, 2005, Young and another trooper went to the mobile
home. As the two investigators approached the mobile home, they
smelled a moderate odor of growing marijuana coming from inside.
The investigators knocked, but no one answered. Young
noticed that the front door of the mobile home was padlocked.
There was only one set of tire tracks in the driveway and one set
of footprints that led from the driveway to the door. There were
no footprints in the snow around the mobile home, vehicles, or
outbuildings. The windows that could be viewed from the front
porch and driveway were covered up.
Later that day, Young contacted a neighbor, Bill
Erdahl, who identified Smith as the owner of the property.
Erdahl told Young that he believed that Smith was in Mexico. He
also said that, on most nights, someone would stop in at Smiths
residence and then leave again.
Young searched Erdahls residence with his consent to
eliminate it as a possible source of the marijuana odor. Young
also noted that the only other residence nearby was unoccupied;
the driveway had not been cleared of snow and there were no
footprints going to or from the residence.
Young summarized his observations of Smiths property
and noted that
[b]ased upon [his] observations of the lack
of activity, no footprints in the snow around
the structure, vehicles or outbuildings, no
vehicles recently parked overnight at the
residence, the padlock on the front door and
the information provided by the neighbor,
[he] believe[d] that the residence [was] not
currently occupied and [was] perhaps not
being used as a dwelling, but only for the
purpose of cultivating marijuana.
Young indicated that a records check showed that Smith
had no drug convictions and did not have a medical marijuana
certificate.
Young described his qualifications and training in drug
investigations, the characteristics of a typical commercial
marijuana grow, and his personal experience with grows. He also
included statistical information. The information included what
Young described as his units success rate and his personal
success rate in smelling commercial amounts of growing marijuana.
Young noted that, based on his experience in smelling felony
level marijuana grow operations, he believed that there was
sufficient marijuana growing at Smiths mobile home to support a
felony charge.
Magistrate Jerry D. Anderson approved Youngs
application for a search warrant. When the police executed the
search warrant at Smiths mobile home, they seized ninety-four
marijuana plants that, when processed, amounted to 9.22 pounds of
marijuana. They also seized growing equipment and one-sixth of a
pound of processed marijuana.
On March 3, 2006, the grand jury indicted Smith on four
counts of fourth-degree misconduct involving a controlled
substance.1 Smith moved to suppress evidence and dismiss the
indictment on the basis that the search warrant was issued
without probable cause. Relying on State v. Crocker,2 Smith
argued that there was no probable cause supporting the search
warrant because Young had observed no specific facts that would
justify a conclusion that the smell of marijuana that [he]
perceiv[ed] was in excess of the constitutionally protected
amount. Smith argued that Youngs assertions in the affidavit
were reduced to his observation of a moderate smell of
cultivating marijuana coming from a residence whose owner was on
vacation in Mexico.
Smith contended that Youngs factual allegations were
less supportive of a finding of probable cause than the evidence
provided to the magistrate in Crocker because in that case, the
police smelled a strong odor of marijuana and found that Crockers
electricity usage was higher than normal. Smith pointed out
that, in his case, the police made no effort to check the
electrical consumption for his mobile home and relied on a
moderate smell of marijuana to establish probable cause. Smith
concluded that, if the information in the officers affidavit in
Crocker was not sufficient to establish probable cause, then the
affidavit in his case was insufficient.
The State pointed out that Youngs affidavit showed that
he was well-trained and experienced in smelling commercial
amounts of growing marijuana. Young swore in his affidavit that
smelling cultivating marijuana in the air outside a building is
indicative of a commercial grow. The affidavit stated that, if
an officer can smell cultivating marijuana on the outside air,
the amount being cultivated is likely in excess of four ounces
because marijuana plants must be present in a sufficient number
or mass for the odor to be detectable outside of a residence.
Youngs affidavit further explained that a personal-use grow does
not typically involve a venting system, which is normally
responsible for conducting the smell to the outside air. The
State also pointed out that Young stated in his affidavit that,
in all of his experience, he has never smelled packaged or
personal-use marijuana stored in someones house, and that one
marijuana plant grown indoors in Alaska yields approximately two
to three ounces on average.
The State further pointed out that Youngs affidavit
included an analysis of statistical information from his unit
that showed that, when an officer smells the odor of cultivating
marijuana outside a building, ninety-six percent of the time it
is a felony commercial grow operation. Judge Brown rejected the
States arguments and granted Smiths motion for the reasons stated
by Defendant in his memorandum and reply in support of his
motion to suppress.
Discussion
This court reviews a magistrates determination of
sufficiency of the allegations of facts in a search warrant
application for an abuse of discretion.3 Only the information
brought to the magistrate's attention may be considered by this
court,4 and it must be considered in a reasonable and common-
sense manner.5
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.6 In Noy v. State,7 this court relied on
Ravin v. State8 and held that adults may possess, in their home
and for personal use, less than four ounces of marijuana. In
State v. Crocker,9 this court held 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.10
The State argues that Youngs affidavit established
probable cause to believe that Smiths mobile home contained more
than four ounces of marijuana, and that Smith was growing
marijuana for commercial use. The State points to specific
sections in Youngs affidavit which asserted that: eighty-one of
the marijuana grows seized by Youngs unit from 2000 to 2004 were
discovered by officers smelling growing marijuana, and in ninety-
six percent of those seizures, a felony level grow operation was
discovered; a budding marijuana plant produces the strongest odor
and, usually, the larger the buds, the stronger the smell; the
ability to smell the odor of cultivating marijuana outside a
building is, by itself, indicative of a commercial grow operation
because it typically indicates the use of an installed air
venting system; and Youngs unit rarely found personal use grow
operations.
Smith argues that Crocker stands for the proposition
that the assertion of an odor of marijuana without more evidence
indicating criminality cannot provide sufficient probable cause
to uphold issuance of the search warrant, and that the
allegations of illegality in this case fall below those
allegations held to be insufficient in Crocker. In addition,
Smith now argues that the statistics in Youngs affidavit are
unreliable because the data consists only of those instances in
which the police ultimately seized the marijuana they smelled.
Smith points out that the affidavit does not specify whether and
how many times Youngs unit smelled cultivating marijuana but did
not seize it because the grows were not commercial grows.
In Crocker, this court ruled that the search warrant
application in that case demonstrated probable cause that
marijuana was being grown in the defendants home, but the
application did not provide any information that the defendant
was cultivating more than four ounces.11 Although the
application asserted that the smell of growing marijuana was
strong, this court noted that the application contained no
assertion that the strength of the smell gave the officers any
indication of the amount of marijuana that might be growing
inside, or that a correlation could be drawn between the strength
of the odor of growing marijuana and the amount of marijuana
being grown.12 Without more information than a strong smell,
this court held that there was nothing to indicate that the
defendants possession of marijuana violated Ravin and Noy.13
The central question here is whether the affidavit in
support of the search warrant application shows a fair
probability that Smiths mobile home contained evidence that Smith
was conducting a commercial marijuana growing operation.14
Youngs affidavit provided information that linked his
ability to smell marijuana from the driveway of Smiths property
to a probability that the mobile home contained evidence of a
commercial grow of marijuana. As the affidavit stated, Young was
able to smell the odor associated with growing marijuana outside
Smiths mobile home. Youngs experience, corroborated by the
statistical analysis of previous cases with his unit, was that,
in all likelihood, there was a commercial quantity of marijuana
inside Smiths mobile home because of the obvious odor outside.
This information remedied the deficiency found in Crocker. Thus,
we conclude that Youngs affidavit established probable cause to
believe that evidence of commercial marijuana cultivation would
be found in Smiths trailer. Accordingly, we reverse the superior
courts order granting the motion to suppress and dismissing the
indictment.
We now address Smiths argument regarding the potential
flaw in the statistical analysis included in Youngs affidavit.
Smith argues that additional information could undermine the
persuasive force of the assertions in Youngs affidavit. But this
issue was not litigated in the superior court. Perhaps there is
additional information about Youngs units discovery of marijuana
grows that would undercut probable cause. This possibility
presents a situation similar to that addressed by our supreme
court in State v. Malkin.15 If Youngs summary of the statistical
information about his units experience with marijuana grows
contained material misstatements of fact or material omissions of
fact, Malkin provides the framework for evaluating that claim.16
[O]nce a misstatement or omission is
established, the burden of proving that it
was neither reckless nor intentional shifts
to the state. A failure to meet this burden
will vitiate the warrant if the misstatement
or omission is material, that is, if deletion
of the misstated information from or
inclusion of the omitted information in the
original affidavit would have precluded a
finding of probable cause. A non-material
omission or misstatement one on which
probable cause does not hinge requires
suppression only when the court finds a
deliberate attempt to mislead [the
magistrate].[17]
However, Smith has not litigated this issue because the
superior court granted his motion without considering these
potential issues. Accordingly, Smith will be entitled to
litigate these claims when the case returns to the superior court
for further proceedings on the indictment.
Conclusion
The order of the superior court granting the motion to
suppress and dismiss the indictment is REVERSED.
_______________________________
1 AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F); AS
11.71.040(a)(3)(G); and AS 11.71.040(a)(5).
2 97 P.3d 93 (Alaska App. 2004).
3 State v. Bianchi, 761 P.2d 127, 130 (Alaska App. 1988).
4 State v. Jones, 706 P.2d 317, 326 (Alaska 1985).
5 State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989).
6 Van Buren v. State, 823 P.2d 1258, 1261 (Alaska App. 1992)
(quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).
7 83 P.3d 538 (Alaska App. 2003), on rehearing, 83 P.3d 545
(Alaska App. 2003).
8 537 P.2d 494 (Alaska 1975).
9 97 P.3d 93 (Alaska App. 2004).
10Id. at 94 (citing Ravin v. State, 537 P.2d at 494).
11Id. at 97-98.
12Id. at 97.
13Id.
14Id. at 98.
15722 P.2d 943 (Alaska 1986).
16Id. at 946.
17Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993)
(quoting Malkin, 722 P.2d at 946 n.6) (footnotes omitted).
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