State v. Milosevich , 131 Or. App. 51 ( 1994 )

LANDAU, J.,

dissenting.

To establish probable cause to search a residence for marijuana and related paraphernalia, a supporting affidavit must satisfy two requirements:

“ ‘First, it must set forth objective observations that would permit a disinterested magistrate to conclude that there is probable cause to believe that the persons residing on the premises have some relationship to the plants. * * * [Second,] the affidavit must contain additional facts to support probable cause to believe that marijuana or certain kinds of implements of cultivation or paraphernalia for processing or sale of marijuana are probably in the building to be searched.'' ” State v. Anspach, 298 Or 375, 381, 692 P2d 602 (1984). (Emphasis supplied.)

A recent case from this court illustrates what is sufficient to establish the probability that marijuana or other seizable evidence is in the budding to be searched. In State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993), the affidavit contained rehable information that the defendant was the “cook” for a drug manufacturing enterprise, and that other members of the enterprise were known to perform phases of manufacturing and distribution in their homes. Telephone records indicated frequent recent communications between the defendant’s home and the home known to contain the methamphetamine laboratory. The defendant had been seen several times with other participants at the home where a lab was located. One informant had told another that he could obtain the drug from “[the defendant] who lives in Salem” and had accompanied the other informant to the defendant’s home. In the light of the evidence that the defendant was part of a larger operation, that other members of the operation actually were known to keep evidence of the operation in their homes, and that one informant had taken another to the defendant’s house to make a purchase, we held that there was sufficient evidence to support the magistrate’s conclusion that seizable things probably could be found at the defendant’s residence also.

Another recent case from this court illustrates what is not sufficient to establish the probability that marijuana or other seizable evidence is in the building to be searched. In State v. Evans, 119 Or App 44, 849 P2d 539 (1993), the affidavit stated that the officer knew, based on his experience, that it was “common practice” for those who grow marijuana to keep various drug paraphernalia at their homes, and that, on that basis, it was probable that the defendants, who were observed growing marijuana some 35 miles away from the grow site, probably kept seizable items at their residence. We held that that affidavit was insufficient to establish probable cause that the defendants kept any seizable evidence at their home. We held that neither the presence of the defendants’ truck at the growing site, nor the officer’s experience, provided the required ‘ ‘additional fact supporting probable cause that this particular residence contained any particular evidence.” 119 Or App at 47. (Emphasis in original.)

In this case, the majority concludes that, on the basis of (1) an officer’s experience that those who grow marijuana generally keep seizable things at their homes, (2) the fact that one defendant was observed at the grow site, and (3) the fact that, during a stop of Mason’s car some miles away from defendants’ residence, an officer could smell the odor of “growing” marijuana, the warrant to search defendants’ home was sufficient. According to the majority, that the officer smelled the odor of marijuana “in and around this vehicle” makes this case different from-Seems and, therefore, distinguishable from its holding.

The facts stated in the affidavit in no way establish that marijuana or other seizable evidence “ ‘are probably in the building to be searched.’ ” State v. Anspach, supra, 298 Or at 381. They certainly do not approach what was stated in the affidavit in Chezem. In particular, there is no evidence of illegal activity at defendants’ home. There is, in fact, no evidence of any activity in defendants’ home, except that they lived there.

In my view, this case is indistinguishable from Evans. The fact that an officer smelled marijuana “in and around” Mason’s vehicle is of no particular significance to me. It demonstrates absolutely nothing concerning the probability that seizable evidence may be found at defendants’ residence. Perhaps it establishes the probability that marijuana may be found in the car. But the connection between an odor of marijuana in and around Mason’s car and the probability that defendants have drugs or drug paraphernalia at their home eludes me completely.

The majority insists that the connection is established by the officer’s testimony that the odor in and around Mason’s car was of “growing” marijuana, and that one defendant had been observed at a marijuana ‘ ‘plantation’ ’ and that, some hours later, the car ended up at defendants’ home. I suppose that, in an attenuated, Rube Goldberg fashion, there is a connection between the odor of “growing” marijuana and defendants’ residence. I insist that it does not come close to establishing probable cause that drugs or drug paraphernalia would be found at the home. Even assuming, for the sake of argument, that the odor of growing marijuana demonstrates that one defendant was harvesting marijuana,¹ it remains something of a mystery how that demonstrates that he transported it to his home.

I dissent.

1 Even that assumption is a bit of a stretch. The officers observed defendant Steven Milosevich and Mason at the “plantation” for an hour and a half and could not testify that they observed either person harvesting marijuana. Moreover, a count of the marijuana plants both before and after the search revealed the same number of plants at that location.