DocketNumber: No. W2-2009-0305A
Judges: GALE, J.
Filed Date: 4/7/2010
Status: Precedential
Modified Date: 4/17/2021
On December 17, 2007, Detective Taylor received a telephone tip from a Fairhaven, *Page 2 Massachusetts police detective stemming from a narcotics arrest. The Massachusetts detective indicated that while he was conducting surveillance of a known drug user he had followed the drug user to Portsmouth, Rhode Island. While in Portsmouth, the Massachusetts detective observed the drug user meet a white male who was operating a motor vehicle with a Rhode Island license plate. After stopping the drug user on his return to Massachusetts, the police serized one ounce of hydroponic marijuana from the drug user's vehicle. The drug user indicated that he had purchased the hydroponic marijuana for three hundred and fifty dollars ($350). In addition, the Massachusetts detective also determined that the drug user's cell phone memory had only one Rhode Island number stored in it, which he provided to Detective Taylor.
Detective Taylor checked the registration of the Rhode Island vehicle which had been provided by the Massachusetts detective and determined that the vehicle was registered to a Tracey Barton (the Defendant's wife). Additionally, a check of the Rhode Island telephone number stored in the drug user's cell phone showed the number was assigned to the Defendant. Town records reflect the Defendant and Tracy Burton as co-owners of the Property.
The affidavit in support of the Thermal Imaging Warrant also stated that Detective Taylor checked the Property's electrical usage records. These records indicated that the Property used an aggregate value of electricity greater than corresponding properties. Although the affidavit does not specify the dates on which the Property used higher levels of electricity, the affidavit in support of the December 2, 2008 "Search Warrant" for the Defendant's cell phone records indicates the search was conducted on November 19, 2008. Additionally, the "Search Warrant" affidavit also indicates that the electric bills for the Property were "off the chart."
On December 8, 2008, Detective Taylor obtained a warrant to search and/or seize (the "Drug Search Warrant") evidence at the Property related to the cultivation of a hydroponic *Page 3 marijuana grow. The affidavit supporting the Drug Search Warrant contained the same information relating to the December 17, 2007 phone tip, statements of training and experience by Detective Taylor, information relating to electricity usage at the Property, and the results of the thermal imaging conducted on the Property on December 2, 2008.
On December 12, 2008, Narragansett Police Officers, led by Detective Taylor, executed the Drug Search Warrant at the Property. An array of evidence was seized from the property including: 94 adult marijuana plants, 200 seedling plants, various equipment associated with the cultivation of marijuana, 68 grams of marijuana, 14.3 grams of hashish, and 13 assorted handguns, rifles, and shotguns. The Defendant now moves to suppress any evidence obtained from the Thermal Imaging Warrant and the Drug Search Warrant, because he contends both warrants were issued without probable cause. Further, the Defendant also requests certain statements made to the police after the warrants were executed — pertaining to the drugs and paraphernalia seized from the Property — be suppressed as "fruit of the poisonous tree."
In making this determination, the issuing magistrate must review the affidavit and, based on the facts contained therein, together with the reasonable inferences that may be drawn from those facts, make a practical, commonsense determination as to whether ``there is a fair probability that contraband or evidence of a crime will be found in a particular place.' Byrne, 972 A.2d at 638 (quoting Gates,
462 U.S. at 238 ).
In reviewing a magistrate's probable cause determination, the trial justice is required to provide great deference to the magistrate's decision, so long as there exists a showing of "a substantial basis from which to discern probable cause."State v. Correia,
*Page 5[T]his Court's ``after-the-fact scrutiny . . . of the sufficiency of an affidavit should not take the form of de novo review. Rather, we give deference to the issuing magistrate's determination of probable cause and confine ourselves to reviewing whether the magistrate had a substantial basis for his finding of probable cause. Although the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo, a deferential standard of review should be applied when reviewing a magistrate's decision to issue a warrant because the
Fourth Amendment demonstrates a strong preference for searches conducted pursuant to a warrant, . . . and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches. Byrne, 972 A.2d at 638 (internal quotations and citations omitted).1
In light of the "``strong preference for searches conducted pursuant to a warrant,'" affidavits must be interpreted in "a realistic fashion that is consistent with common sense, and not subject to rigorous and hypertechnical scrutiny." Id.
(quoting Gates,
Moreover, "an affidavit offered in support of a search warrant should not be judged as if it had been drafted by one schooled in the niceties of the law." State v. Nerney,
Conversely, the State agues "[t]he key factor in this case is the fact that hydroponic marijuana is seized." According to the State, because the marijuana seized from the drug user was the type of marijuana typically produced from indoor grow operations, it is not unreasonable for the police to believe contraband would still be at the Property almost a year later. *Page 7 Additionally, the State argues that the information regarding the high electrical usage at the Property provides current information regarding the likelihood of an ongoing indoor marijuana grow. Finally, the State asserts the affidavit provided ample probable cause to support the warrant sought to ascertain whether "higher intensity lighting" was being used at the Property because of: 1) the high level of electricity noted in the defendant's National Grid records; 2) the fact that the hydroponic marijuana was seized by the Fairhaven police in December of 2007 from a known drug user who only briefly visited Rhode Island; 3) that same known drug user met with an individual operating a motor vehicle registered to the defendant's address; and 4) that same known drug user had only one Rhode Island cell phone number stored in his phone which was determined to be the defendant's.
Courts confronted with suppression motions to determine the staleness of information do not "mechanistically, merely count[] the number of days elapsed." United States v. Schaefer,
In this case, all the evidence and information contained in the affidavit indicates that the Defendant was engaged in an ongoing and entrenched activity. In essence, the Defendant argues that the length of time which passed from Detective Taylor's receiving the phone tip until the application for the Thermal Imaging Warrant made the information from the phone tip stale. However, as one court has explained, "[b]y its very nature, drug trafficking, if unchecked, is apt to persist over relatively long periods of time. . . . That is particularly true in the shadowy world of drug dealings."United States v. Nocella,
Moreover, as the affidavit indicates, the phone tip to Detective Taylor relayed that the marijuana seized from the drug user was hydroponic marijuana. Cultivation of hydroponic marijuana is an elaborate process which requires a great deal of equipment and planning, including high intensity lighting. The affidavit outlines that "through training and experience the use of large amounts of lighting generates a large amount of heat." At this point in the investigation, the purpose of the Thermal Imaging Warrant was to determine whether the Property was radiating an amount of heat consistent with the use of high intensity lighting required for an indoor marijuana grow. The warrant did not target items of a temporary nature, *Page 9
but sought heat evidence of a marijuana grow likely to have been operating for some time. Although nearly a year of time passed between Detective Taylor's receipt of the phone tip and the application for the warrant, this passage of time does not necessarily render the information stale. See UnitedStates v. Turner,
Here, the passage of time is even less troubling because the affidavit tendered in support of the Thermal Imaging Warrant contained sufficient recent facts to corroborate the phone tip. As previously noted, when an affidavit contains information of a remote nature, "a magistrate may still hold it to be adequate if it also contains sufficient recent facts corroborating the older data and linking that data to the present." Schaefer,
Applying the deferential standard required, and using a common-sense approach, the Court also finds no error with the issuing Judge's conclusion there was probable cause to issue the Thermal Imaging Warrant. Viewing the totality of the circumstances, it is reasonable for the issuing Judge to have concluded that the Defendant was potentially engaged in the cultivation and sale of marijuana. The affidavit indicated that hydroponic marijuana was seized from a known drug user, that the drug user met with an individual operating a motor vehicle registered to the Defendant's address, that the drug user had but a single Rhode Island cell phone number memorized in his phone which belonged to the Defendant, and that the Defendant's residence was using an inordinate amount of electricity. Thus, the Court holds the information contained in the affidavit established probable cause to believe that evidence of a marijuana grow could be determined by a thermal scan of the Defendant's home. As a result, Defendant's motion to suppress the evidence garnered from the Thermal Imaging Warrant is denied.
If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring ``the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.' Gates,
462 U.S. at 236 (quoting United States v. Chadwick,433 U.S. 1 ,9 (1977).
United States v. Riccardi , 405 F.3d 852 ( 2005 )
State v. Spaziano , 1996 R.I. LEXIS 268 ( 1996 )
United States v. Robert Nocella, Sr., A/K/A Doc , 849 F.2d 33 ( 1988 )
United States v. James Alton Turner, Jr. , 431 F.3d 332 ( 2005 )
United States v. Alberto Rodriguez Jiminez , 224 F.3d 1243 ( 2000 )
State v. Nerney , 110 R.I. 364 ( 1972 )
United States v. Schaefer , 87 F.3d 562 ( 1996 )
United States v. Harlan Peacock and Harold Peacock , 761 F.2d 1313 ( 1985 )
United States v. Santana , 342 F.3d 60 ( 2003 )
United States v. Gino Snow , 919 F.2d 1458 ( 1990 )
United States v. Magluta , 198 F.3d 1265 ( 1999 )
State v. Verrecchia , 2005 R.I. LEXIS 163 ( 2005 )
State v. Pratt , 1994 R.I. LEXIS 161 ( 1994 )
State v. Byrne , 2009 R.I. LEXIS 78 ( 2009 )
United States v. Yates , 132 F. Supp. 2d 559 ( 2001 )
United States v. McKeever , 5 F.3d 863 ( 1993 )
United States v. Climmie Jones, Jr. , 159 F.3d 969 ( 1998 )
State v. Correia , 1998 R.I. LEXIS 104 ( 1998 )
United States v. Chadwick , 97 S. Ct. 2476 ( 1977 )