No. 20273-9-III.The Court of Appeals of Washington, Division Three. Panel One.
Filed: May 30, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 011000633, Hon. Richard J. Schroeder, May 17, 2001, Judgment or order under review.
Counsel for Appellant(s), Frank L. Cikutovich, Stiley Madel
Cikutovich, 1408 W Broadway, Spokane, WA 99201.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.
DENNIS J. SWEENEY, J.
Spokane police smelled marijuana outside John Weitz’s house and determined his power usage was abnormally high. They obtained a warrant to search his home. They discovered a marijuana grow operation during the search. The State charged Mr. Weitz with manufacturing a controlled substance. He moved to suppress, based largely on the Medical Use of Marijuana Act, chapter 69.51A RCW; it decriminalizes some production of marijuana. The trial court denied the motion to suppress, and Mr. Weitz was convicted after a bench trial on stipulated facts. He appeals the denial of his motion to suppress. Mr. Weitz does not assign error to any of the factual findings. They are then verities on appeal. State v. Schmeck, 98 Wn. App. 647, 650-51, 990 P.2d 472 (1999).
The question here is whether the sight or smell of growing marijuana can be the basis for probable cause since some production may be legal under the Medical Use of Marijuana Act.
We begin with the well-settled rule that a judge’s determination of probable cause is entitled to `great deference.’ State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Klinger, 96 Wn. App. 619, 623-24, 980 P.2d 282 (1999). Our review then is for abuse of discretion. Cole, 128 Wn.2d at 286; Klinger, 96 Wn. App. at 624.
`Probable cause exists when an affidavit supporting a search warrant sets forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity.’ Cole, 128 Wn.2d at 286 (emphasis added). Probable cause does not require `proof of criminal activity,’ but merely a belief that criminal activity may have occurred. State v. Patterson, 83 Wn.2d 49, 52, 515 P.2d 496 (1973); State v. Hansen, 42 Wn. App. 755, 760, 714 P.2d 309 (1986) (`The likelihood of criminal activity, not a prima facie showing of it, determines whether a search warrant should be issued.’), aff’d, 107 Wn.2d 331, 728 P.2d 593 (1986).
Probable cause can be, and often is, based at least in part on otherwise legal activity. See Cole, 128 Wn.2d at 286 (facts that when viewed in isolation do not constitute probable cause, may be viewed together and with other facts to establish probable cause); State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992) (`[w]hile the details may be innocuous when viewed singly, together they give rise to probable cause’). There is no requirement that an officer have actual proof of criminal activity, only proof that criminal activity is probably occurring. Patterson, 83 Wn.2d at 52; Hansen, 42 Wn. App. at 760. Here, police smelled marijuana and determined that Mr. Weitz’s power usage was abnormally high. Clerk’s Papers at 9. An application for a search warrant is viewed in light of common sense and all doubts are resolved in favor of the warrant’s validity. Cole, 128 Wn.2d at 286; State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994); Klinger, 96 Wn. App. at 624. The issuing judge is allowed to draw reasonable inferences from the facts and circumstances found in the affidavit. State v. Sterling, 43 Wn. App. 846, 852, 719 P.2d 1357 (1986).
The facts before the issuing judge were then sufficient to establish probable cause. Patterson, 83 Wn.2d at 52; Hansen, 42 Wn. App. at 760. Some marijuana may now be grown legally. But the practice has not become so wide spread that traditional indicia of marijuana cultivation can be said to be `not criminal activity.’ The magistrate’s exercise of discretion here is well grounded.
The next question is whether the affidavit in support of the search warrant is adequate given the failure to connect Mr. Weitz to the smell of marijuana and the failure to show that the officer was qualified to detect the odor.
Unfortunately, the affidavit in support of the search warrant is not in the record. And so there is nothing for us to review. State v. Ames, 89 Wn. App. 702, 708 n. 7, 950 P.2d 514 (1998). Mr. Weitz could be basing his challenge on the Clerk’s Papers at pages 2-3 — `Statement of Investigating Officer Affidavit of Facts.’ If so, this report is not the affidavit in support of the search warrant. It was in fact created after the warrant was executed.
In sum, neither of Mr. Weitz’s challenges to the affidavit in support of the search warrant can be reviewed because the affidavit is not part of the record. Ames, 89 Wn. App. at 708 n. 7.
The decision of the trial court is affirmed.
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.
WE CONCUR: BROWN, C.J., KATO, J.