No. 26193-0-III.The Court of Appeals of Washington, Division Three.
June 17, 2008.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 06-1-03483-1, Maryann C. Moreno and Ellen K. Clark, JJ., entered April 30 and May 8, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Brown, J.
THOMPSON, J.[*]
Patrick Richard Applington appeals his convictions for manufacturing marijuana and possession of a controlled substance with intent to deliver. He contends that the trial court should have suppressed evidence found in the execution of a search warrant because the affidavit in support of the warrant failed to establish probable cause. He also argues the warrant was overly broad. We affirm.
FACTS
In May 2005, Detective Shane McClary reported to Detective John Hess that he had information about a marijuana grow operation at Mr. Applington’s address based upon surveillance of the premises. The detectives drove to the area and walked through an alley to the north of Mr. Applington’s house. While standing at the northwest corner of Mr. Applington’s garage, they could smell a strong odor of marijuana for about 5 to 10 seconds. They also heard a humming noise coming from the garage, which in their experience indicated the presence of electrical transformers used with high intensity grow lights.
Detective Hess prepared an affidavit in support of a warrant to search Mr. Applington’s garage, house, and car. The affidavit indicated that Detective Hess had been an officer with the Washington State Patrol for over 19 years, had been involved in over 600 drug arrests and received over 400 hours of drug training with special training in marijuana grows. Detective Hess also stated that he had been involved in the investigation of at least 350 indoor marijuana growing operations and could identify marijuana by sight and smell. The affidavit described the smell of marijuana that emanated from the garage and the humming noise. It also indicated that a criminal history check of Mr. Applington revealed an arrest for driving under the influence and two arrests for controlled substance violations. The disposition of the arrests was unclear.
During execution of the warrant, officers found evidence of a marijuana grow operation in Mr. Applington’s house and garage. He was subsequently charged with one count of the manufacture of marijuana and one count of possession of marijuana with intent to deliver.
Mr. Applington moved to suppress the evidence found during execution of the search warrant, arguing, as he does on appeal, that the affidavit failed to establish probable cause. The trial court denied the motion, concluding it was “reasonable to infer that a marijuana grow operation was inside the garage . . . based upon smell and sound observations.” Clerk’s Papers (CP) at 40. Mr. Applington’s motion for reconsideration was denied.
Mr. Applington was convicted by stipulated facts of one count of manufacturing marijuana and one count of possession of a controlled substance with intent to deliver. He appeals.
ANALYSIS
Mr. Applington first argues that the affidavit in support of the search warrant did not establish probable cause because it (1) failed to detail the nature and substance of the initial surveillance, (2) lacked an affirmative statement that the humming noise was from a ballast or transformer, and (3) failed to eliminate other possible sources of the marijuana odor. He also asserts the warrant was overly broad.
A trial court’s legal conclusion as to whether an affidavit establishes probable cause is reviewed de novo. In re Det. of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002) State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389
(2007). The Petersen court noted that a reviewing court defers to a magistrate’s findings of “historical” facts — but that de novo review of whether those facts amount to probable cause is proper because the job of appellate courts is to be expositors of law and ensure unity of precedent Petersen, 145 Wn.2d at 799-800.
An affidavit in support of a search warrant must describe the facts and circumstances sufficient to establish a reasonable inference that there is criminal activity and contraband at the place to be searched. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause requires just a showing of probability; it does not require prima facie establishment of criminal activity. In re Pers. Restraint of Yim, 139 Wn.2d 581, 594-95, 989 P.2d 512 (1999). We read affidavits as a whole in a commonsense, nontechnical manner and resolve doubts in favor of the warrant. State v. Casto, 39 Wn. App. 229, 232, 692 P.2d 890 (1984).
Mr. Applington first contends the trial court erred in finding probable cause based on Detective Hess’s statement that he originally received information about the grow operation from another detective’s surveillance. He argues that the affidavit’s failure to identify the substance of the surveillance renders it constitutionally deficient. However, the substance of the initial surveillance is immaterial to the issue before us. The affidavit mentions this information simply to explain why the police were investigating Mr. Applington’s premises. Standing alone this information would not support probable cause, but as discussed below, the other facts amply support the court’s probable cause finding.
Mr. Applington next contends that the trial court misconstrued Detective Hess’s statements regarding the smell of marijuana. He argues that the trial court’s finding that the odor of marijuana dissipated as the officers walked away from the corner of Mr. Applington’s garage is incorrect. He also points out that the affidavit lacks an affirmative declaration that the odor originated in the garage, noting that it made no reference to wind direction, other buildings in the area, or that the officers “eliminated any other possible sources in the alley way from which this alleged odor of marijuana may have originated.” Br. of Appellant at 19.
The affidavit stated:
Detective McCarthy and your affiant stood at the north west corner of a large metal garage located on the property that boarders [sic] the alley. While standing at this corner both Det. McCarthy and your Affiant were able to detect a strong and obvious odor of green growing marijuana. We were able to detect this odor for 5-10 seconds then the odor dissipated. Additionally as we walked to the east away from [the] building we could no longer smell the odor of marijuana.
CP at 53.
It is well settled that when an officer with training and experience in marijuana detection actually detects the odor of marijuana, this by itself constitutes probable cause to justify a search. Cole, 128 Wn.2d at 289. Here, Detective Hess had extensive experience with marijuana cases. Therefore, his identification of the odor of marijuana at the corner of Mr. Applington’s garage was sufficient to support the trial court’s finding of probable cause.
Mr. Applington’s contention that detectives failed to precisely locate the odor of marijuana does not change our decision. A magistrate may draw commonsense inferences from the facts and circumstances contained in the affidavit. State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975). The affidavit need not describe wind direction or speculate on other sources of the odor. Here, Detective Hess’s statement that he could detect a strong odor of marijuana near the garage is sufficient to infer that the odor originated from the garage.
Finally, contrary to Mr. Applington’s assertion, it makes no difference whether the detectives were walking away or standing by the garage when the odor dissipated. Both detectives stated that they detected the smell of marijuana for 5 to 10 seconds before it dissipated. This amount of time was more than adequate for an officer trained in marijuana detection to identify the smell of marijuana.
Next, Mr. Applington contends that the affidavit is inadequate because it lacked any statement that only a ballast or transformer could be the source of the humming noise or that such a noise is only consistent with illegal activity. The humming noise, he claims, is an innocuous fact that does not support probable cause.
Again, Mr. Applington misapprehends the test for probable cause. He parses out each individual factor asking us to view it in isolation. But we read the affidavit as a whole, not each individual factor separately or hypertechnically Casto, 39 Wn. App. at 232. The affidavit stated:
Both Detective McCarthy and your Affiant were able to hear a humming noise emitting from the metal building. Both your affiant and Det. McCarthy know from their training knowledge and experience that a ballast or transformer is used to convert normal household to current that is needed to operate high intensity lights that are used in the growing of marijuana.
CP at 53.
Contrary to Mr. Applington’s argument, the affidavit need not assert that a ballast or transformer is only consistent with illegal activity. The detective’s statement is more than adequate to support a commonsense inference that the humming noise was from a ballast or transformer.
Mr. Applington also argues that the remaining facts are innocuous. He contends that evidence of his drug arrests and the procedures used to determine ownership of the house do not rise to the level of probable cause. The State correctly points out that these facts are simply additional background information that connects Mr. Applington to the premises. While these facts alone do not establish probable cause, combined with the other evidence, they do.
Finally, Mr. Applington contends that the search warrant was overly broad because the affidavit failed to establish any basis for a search of Mr. Applington’s house and car. Probable cause requires a nexus between the items to be seized and the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). The affidavit in this case establishes this nexus. It provided that the detective was aware through his experience that “individuals who sell controlled substances frequently conceal the drugs which they possess for future sales or consumption, as well as scales, packaging materials, and records of the sales, on their persons, within their residences . . . and within their vehicles.” CP at 52. These facts provide a nexus between the items to be seized and the search of Mr. Applington’s car and house.
CONCLUSION
The warrant was valid. We therefore affirm the trial court’s decision to deny Mr. Applington’s suppression motion.
A majority of the panel has determined that 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.
KULIK, A.C.J., BROWN, J., Concur.