State v. Johnson , 79 Wash. App. 776 ( 1995 )

Schultheis, J.

(dissenting) — I respectfully dissent. The majority finds the Drug Enforcement Administration (DEA) agents’ observations they could smell marijuana while standing in the street in front of Terry Johnson’s house, combined with observations of apparent heat loss from the residence, support a finding of probable cause. While I agree that olfactory observations can support a probable cause determination, e.g., State v. Weller, 76 Wn. App. 165, 168, 884 P.2d 610 (1994), I do not believe they do so in this case.

The investigation of Mr. Johnson began with an anonymous tip that he was involved in the illicit cultivation of marijuana and that he drove a specific vehicle. When the police can show the informant is credible and obtained the information in a reliable way,²² they can use a tip to establish probable cause in an affidavit supporting a search warrant. State v. Huft, 106 Wn.2d 206, 209-10, 720 P.2d 838 (1986); State v. Jackson, 102 Wn.2d 432, 436-37, 688 P.2d 136 (1984). See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). When the tip fails both prongs of the test, as here, probable cause may still be established by independent police investigation. Huft, 106 Wn.2d at 210; Jackson, 102 Wn.2d at 438. These investigations should point to suspicious activities or indications of criminal activity along the lines suggested by the informant; corroboration of innocuous facts is insufficient. Huft, 106 Wn.2d 206; Jackson, 102 Wn.2d 432.

Investigating officers verified the vehicle belonged to Mr. Johnson and obtained his address from department of motor vehicle records. Nearly six months after receiving the tip, officers conducted several visual examinations of Mr. Johnson’s residence. They saw his vehicle there, and another which was also registered to him. They observed a lack of snow on the roof and condensation streaks on the siding where it joined the roof, suggesting ongoing heat loss from the roof of the structure. And they obtained power consumption records showing usage in 1992 varied from usage in 1991: some months showed higher usage, while some months showed lower usage. It is impossible, however, to determine from the affidavit which months were associated with Mr. Johnson’s occupancy of the residence. Only the apparent heat loss from the residence is even remotely indicative of marijuana cultivation. Alone, it is too innocuous to establish probable cause. See, e.g., State v. McPherson, 40 Wn. App. 298, 301, 698 P.2d 563 (1985).

The deciding factor for the majority is the odor evidence presented by Special Agents Levy and Destito. Had they been inside the residence, in a doorway, near an air vent or close to the building when they detected the smell of growing or freshly harvested marijuana, I would agree their observations would justify issuance of a search warrant.²³ Under such circumstances, it would be reasonable to conclude the odor was emanating from Mr. Johnson’s house and that a grow operation would be found within. That was not the case here, however.

The affidavit states the DEA agents smelled the odor of growing or freshly harvested marijuana while walking in the street in front of Mr. Johnson’s house and, although they walked around the block, they could not detect the odor anywhere else. The affidavit establishes the agents possess the requisite training, experience and skill to identify marijuana by its odor, but it does not adequately connect the odor with Mr. Johnson’s residence. The affidavit is silent with respect to their distance from his house and their ability to smell marijuana at that distance, as well as other possibly relevant factors such as landscaping, wind direction and the relative location of other residences on the street. Since the agents were standing in the street, they must also have been directly in front of the house on the north side of the street, assuming there is one there. Despite the affidavit’s demonstration of the agents’ general ability to recognize the odor of growing or freshly harvested marijuana, it contains no information from which one can draw a commonsense inference that they were able to determine the source of the smell from their location. Without such details, the affidavit presents no more than a personal belief that the odor came from Mr. Johnson’s residence.

The six-month-old tip that Mr. Johnson was "involved in the illicit cultivation of marijuana,” plus the observation that his residence lost heat through the roof, plus the agents’ whiff of marijuana in the street in front of his house do not support a reasonable inference the odor came from Mr. Johnson’s residence. Because the affidavit does not set forth sufficient facts to reasonably conclude Mr. Johnson was growing marijuana in his residence, I would reverse.

Review denied at 128 Wn.2d 1023 (1996).

22 The affidavit must set forth (1) some of the underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information and (2) some of the underlying circumstances from which the officer concluded the informant was credible or his information reliable. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984).

23 Cases have upheld the issuance of search warrants based wholly or in large part on olfactory observations made in these circumstances: e.g., Weller, 76 Wn. App. 165 (officers in open doorway); State v. Solberg, 66 Wn. App. 66, 831 P.2d 754 (1992) (officers near defendant’s home), rev’d in part on other grounds, 122 Wn.2d 688, 861 P.2d 460 (1993); State v. Vonhof, 51 Wn. App. 33, 751 P.2d 1221 (tax appraiser near air vent of shop building), review denied, 111 Wn.2d 1010 (1988), cert. denied, 488 U.S. 1008 (1989); State v. Hashman, 46 Wn. App. 211, 729 P.2d 651 (1986) (officers in defendant’s home), review denied, 108 Wn.2d 1021 (1987).