No. 26155-7-III.The Court of Appeals of Washington, Division Three.
June 3, 2008.
Appeal from a judgment of the Superior Court for Stevens County, No. 05-1-00160-1, Rebecca M. Baker and Allen Nielson, JJ., entered January 24 and May 15, 2007.
Affirmed by unpublished opinion per Thomson, J. Pro Term., concurred in by Sweeney and Korsmo, JJ.
THOMPSON, J.[*]
James Carl Redwine appeals his convictions for possession and manufacture of marijuana. He argues that the trial court erred in denying his motion to suppress evidence because the affidavit in support of the search warrant did not contain sufficient facts to establish probable cause. He also challenges the sufficiency of the evidence. We affirm.
FACTS
On October 13, 2004, Stevens County Detective Loren Erdman received a call from Mary Shoemake who believed her rental property at 1593 Highway 25 South, Kettle Falls, Washington, was being used for illegal drug activity. She told the detective that Mr. Redwine rented property from her and that he had refused to allow a potential buyer to look inside a shop on the property.
Detective Erdman obtained utility records for the property. These records indicated that Mr. Redwine had opened an account with Avista Utilities in March 2004 and then transferred the account to his brother in July 2004. Avista informed the detective that the only open account was for the house and the meter to the shop had been removed. Account records revealed an unusually low amount of power usage.
On October 20, Detective Erdman and another detective investigated the property. A car registered to Mr. Redwine was parked in a carport. The detectives knocked at the house, but received no response. As they walked toward the shop they could hear an air conditioner inside, even though outdoor temperatures were cool. They also heard what Detective Erdman characterized as a distinct hum “consistent with large transformers,” which are used in marijuana grows. Clerk’s Papers (CP) at 48. Detective Erdman saw a pipe and a garden hose running from the shop to a well. The front door was blocked with hay bales.
The next day, Detective Erdman contacted Ned Russell, Jr., the prospective buyer. He stated that on October 9, Mr. Redwine had shown him the property and that it appeared Mr. Redwine was living there. Mr. Russell became suspicious when he noticed the shop windows were covered and Mr. Redwine did not allow him inside.
Detective Erdman again contacted Avista on October 21. Power records indicated that power to the garage was removed in March 2004 and an underground line had been run just to the house. Detective Erdman filed an affidavit for a search warrant of the property. The affidavit summarized his experience in drug enforcement, his conversations with Ms. Shoemake and Mr. Russell, and his observations of the property. The affidavit emphasized the incongruity of the low power usage with the evidence of the use of transformers and air conditioners. Detective Erdman wrote:
The operation of the air conditioning and the transformer hum in the shop would suggest that a substantial amount of electricity is being used in the shop. The property owner and Avista Utilities have no specific knowledge of electrical power to the shop. It appears that Redwine may have run power to the shop by connecting the line prior to the meter.
CP at 51.
The affidavit also noted that a reliable confidential informant (CI) contacted Detective Erdman in 2003 with information that Mr. Redwine was a major manufacturer of marijuana and that he had seen marijuana plants at Mr. Redwine’s former residence.
On October 28, the trial court issued a search warrant for Ms. Shoemake’s premises. During execution of the warrant, police officers noticed that the shop appearedrecently cleared out and swept. It smelled of fresh paint. This caught their attention because the other outbuildings and the barn were cluttered. New wood beams with 24-26 hooks ran across the ceiling. There was a vent in the ceiling. Police found fans and a broom with red pumice dust on the brush. Red pumice rock debris, a growing medium for marijuana, was on the floor.
In a covered area next to the shop, police found insulation panels, an air conditioner, and a large pile of red pumice rock. In the corner of the shop, officers recovered electrical cords and large garbage bags filled with hundreds of garden pots. In the garage, they found timers, cords with attached electrical outlet boxes, fans, hydroponic trays with marijuana leaf debris, PVC piping, transformers, a large pile of expensive grow lights, portable heaters, green stained gloves, and 26 grow light hoods. Behind the shop, officers found more hydroponic trays and pipes. It appeared these items had been recently placed there because the grass underneath them was fresh.
During the search of the house, officers found evidence that Mr. Redwine lived there, including paperwork addressed to him during September and October 2004, a May 2004 invoice for 15 gallons of fertilizer addressed to Redwine Construction at the address, a phone list with the name of a well known marijuana grow supplier and passwords for Mr. Redwine, toiletries, clothing, and a bedroom that appeared to have been recently used. In the cellar, officers found drying trays with marijuana residue. Officers recovered over 40 grams of marijuana leaf and residue.
The State charged Mr. Redwine by amended information with one count of accomplice liability for manufacturing marijuana and one count of possession of more than 40 grams of marijuana. Before trial, Mr. Redwine moved to suppress evidence from the search, based on lack of probable cause. The trial court concluded sufficient probable cause supported the warrant.
The case proceeded to a jury trial. Keith Egland, a line serviceman for Avista, testified that in March 2004, Mr. Redwine asked Avista to convert the electricity at the property from overhead to underground power. Mr. Egland testified that he went to the premises and disconnected the power for the upgrade. He also installed an underground service from the transformer pole to the meter, which was next to the house. Mr. Egland testified that in April 2005, he went out to the property at the request of Mr. Russell, who was now the owner, to investigate a possible theft of services. His investigation revealed that a wire had been connected between the transformer and the meter, which meant that electrical use would not show up on the meter.
Detective Erdman explained the function of the items recovered during the search. He stated that marijuana will not grow in the excessive heat produced by grow lights. Therefore, air conditioners, fans, and vents are used to maintain cool growing temperatures. He also explained that vents are used to bring in fresh air for plant growth. He also testified that the operation had been a large one based on the number of grow lights and the venting system.
Mr. Redwine moved to dismiss for insufficient evidence. The trial court denied the motion. The defense presented the testimony of Mr. Redwine’s girl friend, who testified that Mr. Redwine lived with her in Spokane from the first week of October 2004 until Thanksgiving, while he underwent daily chemotherapy. A jury convicted Mr. Redwine as charged. He appeals.
ANALYSIS
We first address whether probable cause existed to issue a search warrant for Ms. Shoemake’s property. Mr. Redwine argues that the affidavit in support of the search warrant did not establish probable cause because the information from the CI was stale and the remaining facts do not amount to probable cause.
We review the issuing magistrate’s determination of probable cause for abuse of discretion and resolve all doubts in favor of the warrant’s validity. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause is established if the affidavit sets forth sufficient facts to lead a reasonable person to conclude that the defendant is probably involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Probable cause requires a probability of criminal activity, not a prima facieshowing of it. In re Pers. Restraint of Yim, 139 Wn.2d 581, 594-95, 989 P.2d 512 (1999). The magistrate evaluates the affidavit in a commonsense, nontechnical manner and is allowed to draw commonsense inferences. State v. Casto, 39 Wn. App. 229, 232, 692 P.2d 890 (1984), review denied, 103 Wn.2d 1020 (1985).
We reject Mr. Redwine’s argument that the affidavit is insufficient due to the staleness of the CI’s information. The affidavit stated that in July 2003, a CI told Detective Erdman that Mr. Redwine was a major manufacturer of marijuana and that he had seen marijuana plants at Mr. Redwine’s house (a house other than this one). The affidavit did not clarify when this encounter occurred. The trial court noted that this information combined with Ms. Shoemake’s and Mr. Russell’s suspicions, power company records, and police observations, led detectives to believe that the marijuana grow operation was located inside the shed.
While the CI’s information referenced facts that predated 2003, this does not render the warrant invalid. The facts recited in an affidavit must establish a probability that the criminal activity is occurring at or around the time the warrant is issued. See State v. Young, 62 Wn. App. 895, 903, 802 P.2d 829, 817 P.2d 412 (1991) (a period in excess of one year casts doubt on the warrant because there was little basis for believing that the items sought would still be present). A significant delay between the gathering of probable cause facts and the issuance of the warrant may weaken probable cause. State v. Thomas, 121 Wn.2d 504, 513, 851 P.2d 673 (1993).
Standing alone, the CI’s information is stale, but we do not view facts in isolation. The totality of the facts in the affidavit here establish that items consistent with a marijuana operation would be found when the warrant was issued. The CI’s information regarding Mr. Redwine’s alleged involvement in a prior marijuana grow was just background information. But this information combined with the other facts in the affidavit provided rational grounds for believing that criminal activity was occurring on the premises in question.
Next, Mr. Redwine argues that the remaining facts fall short of establishing probable cause. He analogizes this case to State v. McPherson, 40 Wn. App. 298, 698 P.2d 563 (1985), where the court reversed a trial court’s finding of probable cause based on what Mr. Redwine characterizes as “virtually identical activities.” Br. of Appellant at 10.
Mr. Redwine’s reliance on McPherson is misplaced. In that case, police received an anonymous tip that the occupant of a certain house was growing marijuana. McPherson, 40 Wn. App. at 299. Police investigated and observed condensation on the house’s windows, potting soil next to the garage door, and black plastic covering the garage door windows. Id.
Police also obtained power use records that showed a two to three times increase in power consumption after the defendant occupied the premises Id. In reversing the magistrate’s probable cause finding, the court noted that these facts did not point to criminal activity because “[e]verything that was observed . . . was commonplace, consistent with normal behavior.” Id. at 301.
The facts of this case cannot in any way be construed as commonplace or innocuous. Evaluated together in a commonsense manner they amply support a probability that Mr. Redwine was growing marijuana at the Kettle Falls property. The affidavit stated that Mr. Redwine had not allowed a prospective buyer to inspect a shop on the property, the shop’s windows were blacked out, its door was locked, an air conditioner was running inside the shop despite cool outdoor temperatures, a humming noise consistent with transformers emanated from the shop, and PVC pipe and a garden hose ran toward the back of the shop. The affidavit also indicated that the shop’s entrance was blocked, power records revealed an unusually low amount of electrical use, and power to the garage had been disconnected.
Further, the affidavit contained Detective Erdman’s recitation of his extensive experience investigating drug crimes. An officer’s experience can be taken into account in evaluating whether probable cause has been established. State v. Maddox, 152 Wn.2d 499, 511, 98 P.3d 1199 (2004). Based on his experience, Detective Erdman explained that drug manufacturers often use outbuildings on their property to hide drugs and supplies. He also explained that marijuana grow operations require large amounts of Page 10 water, fertilizer, electrical power, fans and other cooling devices for temperature control, and exhaust filters to extract the odor of growing marijuana.
Common sense is “the ultimate yardstick” of probable cause. State v. Patterson, 83 Wn.2d 49, 55, 515 P.2d 496 (1973). Each fact alone may be innocuous, but viewed together in a commonsense fashion they amply support an inference that a marijuana grow operation would be found at the suspect premises.
We next address whether sufficient evidence supported Mr. Redwine’s convictions for manufacture and possession of marijuana. In analyzing the sufficiency of the evidence, we view facts and inferences in the light most favorable to the State and find the evidence sufficient to support a conviction when it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999); State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). We need not be convinced of a defendant’s guilt beyond a reasonable doubt, only that substantial evidence supports the conviction. State v. Jacobs, 121 Wn. App. 669, 680-81, 89 P.3d 232
(2004).
The State charged Mr. Redwine with manufacturing marijuana under a theory of accomplice liability. Under RCW 69.50.401, “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” A person is guilty of a substantive crime as an accomplice if, “withknowledge that it will promote or facilitate the commission of a crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it.” RCW 9A.08.020(3). To convict Mr. Redwine of possession, the State had to establish that he actually or constructively possessed the marijuana State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994).
Mr. Redwine’s primary argument is that the State failed to establish that he had constructive possession of the contraband or the premises. He argues, “[t]he only link between Mr. Redwine and the property is the [welfare] application listing it as his address, [and] his cars were seen on the property.” Br. of Appellant at 14. However, the record shows that police found a benefits review dated October 5, 2004, signed by Mr. Redwine and addressed to him at the Kettle Falls property. His car was on the property. Police also found a May 2004 invoice to Redwine Construction at 1593 Highway 25 South for a large amount of fertilizer. Evidence showed that Mr. Redwine was the sole proprietor of Redwine Construction. Further, there were March and April 2004 Avista work orders in Mr. Redwine’s name, a telephone list for his computer with his name on it and his computer passwords. In a bedroom, police found mail with Mr. Redwine’s name on it, including a bill and a Department of Social and Health Services letter from September and October 2004.
Viewing this evidence in favor of the State supports an inference that Mr. Redwine Page 12 had dominion and control of the premises. State v. Callahan, 77 Wn.2d 27, 31, 459 P.2d 400 (1969); State v. Spruell, 57 Wn. App. 383, 387, 788 P.2d 21 (1990) (constructive possession can be established by showing dominion and control of the residence where the drugs were found). Assuming this, it is also a reasonable inference that even if Mr. Redwine did not continuously reside at the Kettle Falls property, he assisted with a marijuana grow operation there. Sufficient evidence supports Mr.
Redwine’s convictions.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J., KORSMO, J., concur.
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