State v. Anspach

BUTTLER, J.

The state appeals a pretrial order suppressing evidence obtained in the search of a residence and outbuildings in two consolidated criminal cases in which defendants were charged with manufacture and possession of marijuana. Both defendants cross-appeal from the denial of their motions to controvert the affidavit in support of the search warrant. We affirm both orders.

The supporting affidavit submitted by a police officer stated, in pertinent part:

“That on September 24, 1981, myself and Deputy Nelson Johnston of the Douglas County Sheriff’s Office, while flying in a Cessna 210, identified growing marijuana plants. That I took photographs of the area in which we saw the plants. That we were flying at an altitude of 1,500 feet above sea level. That I attached hereto as exhibits “A” and “B” two of those photographs. That I have encircled in black the only residence in the vicinity. Also within the black circle is what appeared to be a smaller outbuilding. That I have encircled in red, the location of the observed marijuana plants.”

The remainder of the five-page affidavit set forth the location of the property on the basis of the county assessor’s map, the affiant’s general knowledge and experience in the field of narcotics, including his knowledge of what tools are generally used, what stage of the year marijuana is harvested and what related items are likely to be found in residences and outbuildings on the property of those who grow marijuana.

On the motion to controvert, the trial judge accepted the officer’s testimony that he was able to identify marijuana from an altitude of 1500 feet,¹ and held that the warrant on its face was sufficient to justify a search of the property, but not a search of the buildings on the property. The court, therefore, partially allowed the defendants’ motion by suppressing all evidence found in a search of the buildings but not evidence seized in a search of the land.

We first address defendants’ cross-appeals. They do not challenge on appeal the sufficiency of the affidavit to support the search of the real property but, rather, argue that the trial judge should have granted their motions to controvert. They base their argument on the testimony of a “systematic botanist” that marijuana plants could not be identified accurately from an altitude of 1500 feet. However, we are bound by the trial court’s findings of fact if there is evidence to support them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). Officer Knight testified that he was able to identify the marijuana, because it appeared to be a darker green than the surrounding vegetation. That testimony, if believed, is sufficient evidence to support the trial court’s findings. The trial court apparently believed the officer, and on defendants’ cross-appeals we affirm its denial of the motions to controvert.

There is no dispute concerning the officers’ authority to seize marijuana observed to be growing on defendants’ property — it is contraband. On the state’s appeal the question is whether the affidavit articulates sufficient facts to establish probable cause to expand the search into defendants’ home. The state contends that the trial court erred in concluding that it does not.

If the affidavit is taken at face value, it establishes that from an altitude of 1500 feet the affiant saw an unidentified number of “growing marijuana plants” and that the plants were located somewhere on defendants’ property. Photographs taken from that altitude were attached to the affidavit and identified by drawn circles the location of the marijuana and the location of the house. Those circles indicate that the marijuana was growing in dense forest a substantial distance from the house and that the land between the marijuana and the house was dense forest with no apparent pathways between the two. The affidavit does not state that the plants appeared to have been cultivated or that there was any indication of human activity in the area of the plants or any observable connection between the plants and the house; neither does it estimate the number of plants. The question is whether the officer’s objective observations, coupled with his subjective knowledge and beliefs, support probable cause to search defendants’ residence and outbuildings.

We have dealt with this general question in at least three cases. In State v. Harp, 48 Or App 185, 616 P2d 564, rev den 290 Or 171 (1980), the supporting affidavit stated that the police officer had observed “several” seven to eight foot marijuana plants growing on a 50 acre parcel on which the defendants’ house was located. From the vantage point on the road where the police officer was able to see at least one plant with his naked eye, he could also see a portion of the roof line of the house. In holding that the affidavit was sufficient on its face to authorize a search of the residence, we said:

“* * * Reading the affidavit at issue here we find that it is reasonable to infer from the facts presented that the marijuana seen by the officer was cultivated marijuana. The defendant’s house was the only residence on the property on which the marijuana was being grown. It is reasonable to infer that the marijuana was being cultivated by defendant because it was growing on his land and he lived in the only residence on that land. Those reasonable inferences give rise to a well-warranted suspicion that marijuana and paraphernalia for its cultivation, manufacture, sale and use would be found in that house. * * *” 48 Or App at 190.

State v. Melendy, 49 Or App 441, 619 P2d 952 (1980), was decided about two months after Harp, but did not cite that case. In Melendy, the affidavit stated: the affiant had become suspicious that there was something growing on defendant’s land when he was on the premises investigating a burglary reported by the defendant, because the defendant purposely had taken him around, rather than through, an orchard that would have been the quickest and most direct route to where defendant was taking him; an informant told another officer, who had told the affiant, he had observed a large quantity of marijuana plants growing in the orchard and had taken two plants from the patch; and the informant was familiar with marijuana and had been cited for unlawful possession. A warrant was issued authorizing a search of the property, the dwelling, all outbuildings, automobiles and persons found on the property for marijuana and implements of cultivation. Marijuana was found only in the defendant’s house. We stated:

“In the present case, there is nothing in the affidavit which would create an inference that marijuana was in defendant’s house. A different situation, justifying a search of the buildings, would be presented if the affidavit indicated either that some marijuana appeared to have been harvested or that the marijuana which the informant observed was ready for harvest.”

In State v. Eaton, 60 Or App 176, 653 P2d 250 (1982), rev den 294 Or 460 (1983), we quoted from both Harp and Melendy, but did not deal with their apparent inconsistency. In Eaton, the supporting affidavit stated that: in flying over the property at an altitude of more than 500 feet, another officer had identified growing marijuana plants that were approximately 100 feet southwest of a building that appeared to be a dwelling; a greenhouse and a shed were located 75 feet southwest of the plants, and two “red roofed structures” northeast of the residence; and there were “no other structures observed in close proximity to the growing marijuana.” The warrant authorized the search of the residence and all outbuildings for marijuana, evidence of its cultivation and of its cultivators. The trial court suppressed evidence seized in the search of the house and outbuildings, because the affidavit was insufficient to establish probable cause to search them.

On appeal, we reversed, relying on Harp, stating that the affidavit was sufficient to establish that the plants were under cultivation on defendant’s land, given the existence and location of the greenhouse and outbuildings with respect to the plants. We also stated that the affiant’s statements that, based on his experience over five years investigating the growing of marijuana, “upon harvesting the plants are taken indoors for drying and packing” was. sufficient to draw inferences to provide probable cause to believe that evidence of crime would be found in the residence and other buildings.

Although Harp and Eaton are reasonably consistent, they appear to be inconsistent with Melendy. In Harp, the affidavit stated only that the officer had identified “several” marijuana plants growing on defendant’s property, which was 50 acres, but did not state whether the plants were growing close together, whether there was any objective evidence that the plants were being cultivated or how far the plants observed were located from the residence. We attempted to read the affidavit in a “common sense, non-technical manner” and stated that it was reasonable to infer that the marijuana seen by the officer was cultivated and that, because the marijuana was growing on defendant’s land, it was reasonable to infer that it was being cultivated by defendant. We concluded that those reasonable references gave rise to probable cause to believe that marijuana and paraphernalia for its cultivation, manufacture, sale and use would be found in defendant’s house located on the property. We now think we went too far in Harp in attempting to resolve any doubts by the preference to be accorded to warrants.

In Melendy, we assumed that the marijuana plants were being cultivated, because they were growing in the defendant’s orchard near his house, but we held that there was nothing in the affidavit that would permit an inference to support probable cause to believe that marijuana or implements of its cultivation would be found in the defendant’s home. Melendy may be distinguished from Harp in that the affidavit in Harp contained the statement:

“That from my previous experience as a police officer, I know that individuals who grow marijuana in and around their residence also have items and paraphernalia for processing marijuana, such as drying pans, sifters, drying marijuana, grow lights, and other paraphernalia used in the manufacture, sale, possession and use of marijuana.”

The affidavit in Melendy had no such statement, but we suggested that it would have been sufficient if the affidavit had indicated that some marijuana appeared to have been harvested or was ready for harvest. That suggestion, however, relates to objective observations, rather than the more subjective statements in Harp based on the affiant’s personal knowledge derived from experience.

The affidavit in Eaton contained a statement similar to that in Harp:

“Further, that I have been employed in law enforcement for 10 years, and it has been my experience based upon 5 years of years [sic] of working involving investigating the growing of marijuana, that in Southern Oregon marijuana plants need considerable cultivation including irrigation and fertilization and that the cultivator generally lives or stays in close proximity to the plants to both care for and guard them due to their high value. It is my further experience that upon harvesting the plants are taken indoors for drying and packing.” 60 Or App at 179.

We concluded that the affidavit was sufficient to support a warrant to search defendant’s residence and outbuildings for such evidence.

Although Harp and Eaton are distinguishable from Melendy, as indicated, it is not clear from any of the cases what facts must be stated in the affidavit in order to extend the authority to search a residence or other buildings on the premises on which the marijuana is growing. Harp and Eaton assume that the affidavit must indicate that the plants are cultivated, and in each case we said that the affidavit permitted an inference that they were. Melendy makes it clear that, even assuming cultivation, something more is needed to justify extending the search to buildings.

We now hold that, under Article I, section 9, of the Oregon Constitution,² an affidavit must fulfill 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. Without attempting to catalogue the kind of objective observations that would be sufficient, some examples may be useful: a statement of the approximate number of plants observed, their approximate size and a description of their relationship to one another (e.g., whether in rows or in a specific identifiable patch); whether the ground around them has been worked or has been watered or fertilized; whether there is an observable path between the plants and any of the buildings, or that their proximity to the residence makes it probable that the residents are aware of their presence.³

However, even if the affidavit fulfills that first requirement, it is not sufficient to expand the scope of the search to include the residence or other buildings on the premises. State v. Melendy, supra. To justify a search of those buildings, the second requirement must be met: 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. In Harp and Eaton, we held that those facts may be premised on the affiants’ personal experience, if that experience supports them. In Melendy, we indicated that evidence that the marijuana was being harvested, or was ready for harvest, would support probable cause to search for marijuana in the house.

Here the affidavit stated only that the officer, from an altitude of 1500 feet, “identified growing marijuana plants.” The photographs attached to the affidavit indicate that the plants were a substantial distance from the residence and that the distance between the house and the marijuana was heavily forested. There is nothing to support the conclusion that the marijuana was being cultivated or that the plants were so located, as in Eaton and Melendy, as to give rise to probable cause to believe that defendants had knowledge of their presence and were caring for them. Because the affidavit does not satisfy the first requirement, it was not sufficient to support a warrant to search the residence and buildings. To the extent that State v. Harp, supra, is inconsistent with this opinion, it is overruled.

Affirmed on appeal and on cross-appeal.

1 The trial court found that the officer was en route to Reedsport by air and was not engaged in a general aerial search.

2 We have no reason to believe the analysis would be different under the federal constitution. Defendants relied on both the Oregon and federal constitutional questions in their motions. Although it is not clear, Harp and Eaton appear to have been decided under the federal constitution; Melendy gives no indication of the constitutional basis for the decision.

3 The affidavit here states that another officer had seized marijuana at the same location six or seven years earlier, suggesting, at least, that those plants could have gone to seed and that those presently observed were volunteers. It seems particularly apt here to require some objective observations to support the conclusion that the plants presently growing bore some relation to the residents.