dissenting.
I must respectfully dissent. If the majority should prevail, no hydroponic horticulturist or African violet grower will be safe from unwarranted intrusions.
The facts as outlined by the majority are sufficient and need not be fully set forth again. Narcotic agents were supplied a list of names of persons who presumably purchased hydroponic lights. A drive by of the residence of one such person revealed blankets in the windows. A check of utility company records revealed a higher than normal consumption of electricity. From this innocuous information the narcotic agent presented an application for a search warrant to the local judge. The local judge found probable cause and the search warrant was issued. The premises were searched and marijuana plants were found. A motion to suppress was heard and the circuit judge quashed the search and state appeals.
There is no doubt that the Supreme Court in Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983), substituted the “totality-of-the-circumstances” approach for the rigid “two-pronged test” under Aguilar and Spinelli. 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).
The totality of the circumstances in the instant case in which a detached neutral magistrate made a finding of probable cause and issued the search warrant is as follows: (1) merchandise was shipped to William Michael Phegley (This information was obtained from federal agents); (2) the company shipping this merchandise is a company that sells hydroponic growing equipment; (3) that the company advertises in High Times magazine, a magazine that specializes in marijuana growing products; and (4) blankets were hung in windows. The unidentified shipment of merchandise to Mr. Phegley is no crime. Superior Growers Supply, Inc. sells merchandise that is legal to market. It advertises its product, not an illegal act. Finally, there could be a multitude of reasons to hang blankets in the windows. This is not an illegal act. Taken alone or in totality none of the information rises to the level of probable cause. There is no informant’s tip, no anonymous letter, no evidence of anyone peeking around the blanket covered windows. In our zeal to stamp out illicit drug use we must be vigilant not to stamp out the Fourth Amendment.
The facts herein are quite nebulous and have not before been reviewed by a Missouri court. We should look to our sister state of Idaho for guidance in this area. The court in State v. Mason, 111 Idaho 916, 728 P.2d 1325 (App.1986), dealt with this problem. There was no adequate verification of what the house contained. Further:
*53The state also relied on a utility company’s records showing a large discrepancy in the use of electricity by the Masons between 1982 and 1983. The “large discrepancy” breaks down to an average monthly increase of 17.25 kilowatts. Together with the other evidence, this information is no more indicative of criminal behavior than of common place occurrences consistent with normal legitimate behavior. We decline to infer criminal activity from incidents and observations lending themselves more probably to an innocent, legal explanation than to a criminal interpretation.
In the instant case there is no verification of what the house contained and the increased use of electricity standing alone does not imply criminal activity. The American public is fed up with drugs and the many collateral criminal acts arising therefrom as evidenced by the increase in police ranks, border patrols and special taxes being voted by the people to stamp out this scourge. We, however, must be vigilant not to trample on our Bill of Rights to cure a momentary ill in our time. Failure to heed this thesis will invariably lead to less than desired results. Can martial law then be far removed or the Great Writ in jeopardy?