In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3338
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARLON K. S PEARS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08 CR 136—Philip P. Simon, Chief Judge.
A RGUED JUNE 7, 2011—D ECIDED M ARCH 8, 2012
Before EASTERBROOK, Chief Judge, and BAUER and
W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. On August 1, 2008, a
magistrate judge issued a search warrant for the home
of Marlon K. Spears, which law enforcement officers
executed five days later. Spears was arrested and
charged with possessing 100 or more marijuana plants
with intent to distribute, being a felon in possession of
a firearm, and maintaining a place for the manufacture
and distribution of marijuana. He filed multiple motions
2 No. 10-3338
to suppress the evidence obtained from the search, chal-
lenging numerous statements made in the affidavit ac-
companying the warrant application, including: (1) state-
ments about finding a marijuana stem during a “trash
pull”; (2) the existence of PVC piping at Spears’s
home; (3) the affiant’s statements that she “received
information from” the Northern Indiana Public Service
Company (“NIPSCO”) about Spears’s power usage; and
(4) statements made about Spears’s criminal history,
namely, that he had one in the state of Indiana. The
district court eventually conducted a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978). After hearing
testimony, the district court found that the warrant did
not contain any material false statements that were
made intentionally, and denied the motion. The court
also found that the warrant did not otherwise lack proba-
ble cause.
Spears was convicted of all three counts following a
jury trial. He now appeals, arguing that the district court
erred in denying his Franks motion to suppress evidence.
We find that the district court did not clearly err in
finding no Franks violation with respect to the state-
ments made about the marijuana stem discovered in the
trash and the existence of piping at Spears’s home.
We decline to reach Spears’s arguments regarding the
inclusion of the electricity usage information and his
criminal history because we find that even if those por-
tions are stricken, the remaining elements of the af-
fidavit support a finding of probable cause. We there-
fore affirm Spears’s conviction.
No. 10-3338 3
I. BACKGROUND
A. The Warrant Affidavit and Search of Spears’s
Residence
Nicole Duncanson is a Hammond, Indiana police officer
deputized as a federal agent. On August 1, 2008, she
submitted an application and affidavit in support of a
search warrant for the home of Marlon K. Spears to the
United States District Court for the Northern District of
Indiana. The affidavit stated that on July 23, 2008, a
confidential informant, whom Duncanson had never
met, called her and stated that Spears had a marijuana
growing operation at his home. The informant stated
that he or she had been in the basement of Spears’s
home and observed multiple rooms of marijuana plants,
a water irrigation system, multiple high intensity
growing lights, multiple electronic devices in and
around the operation, fertilizer, growing mediums, and
PVC piping routed from the basement to the exterior of
the residence. The informant also told Duncanson that
the PVC piping on the outside of the house was routed
out from the basement and spray painted black.
Duncanson ran a search on Marlon Spears, which
revealed that he lived at the residence. Duncanson put
in her sworn affidavit that she ran a criminal history
check on Marlon Spears, “and found that he has a
criminal history in the state of Indiana.”
The affidavit also stated that on the morning of July 31,
2008, Duncanson met with two Indiana State Troopers
(Jason Sample and Gerald Michalak) who had investiga-
tion experience with marijuana grow operations. Among
4 No. 10-3338
other information they provided, the troopers informed
Duncanson that it was common in marijuana grow opera-
tions to discard the stems of the marijuana plants.
That same morning, Duncanson, the two troopers, and
Detective Adam Clark of the Hammond Police Depart-
ment obtained abandoned trash that had been placed in
a public alley directly south outside Spears’s home. The
affidavit stated that “Trooper Sample located a fresh,
green/brown, pliable plant stem in the trash. Trooper
Michalak and Trooper Sample immediately recognized
the stem to be from a marijuana plant . . . .” The stem
was tested and returned a positive result for the
presence of marijuana.
Also found in the trash, according to the affidavit, were
an empty box for a “Tetra Whisper Aquarium Heater,”
(allegedly used to heat water to hasten mineral absorp-
tion) and ten gray plastic circular discs. Trooper Sample
advised that the discs were possibly cut from a larger
tray used for “starter” or “clone” marijuana plants.
Finally, Duncanson also stated in the affidavit that:
[o]n July 31, 2008, I received information from
NIPSCO, the Northern Indiana Public Service
Company, that the electricity service at The Pre-
mises is listed in the name of Marlon Spears.
NIPSCO also reported that the normal usage of
electricity for a residence of this size is 500-650
kilowatts per month. However, NIPSCO further
reported the actual, average monthly usage for
the year of 2008 for The Premises was between
1200-1300 kilowatts.
No. 10-3338 5
Duncanson said that the excessive kilowatt usage was
consistent with that of an indoor marijuana grow opera-
tion due to the use of grow bulbs and other electrical
equipment.
Based on the information contained in the warrant
application, a magistrate judge issued a search warrant
for Spears’s home, and officers executed the warrant on
August 6, 2008. During the search, law enforcement
officers found 555 live marijuana plants rooted in soil,
550 grams of processed marijuana, plant pots, carbon air
filters, high intensity grow bulbs, and irrigation system
with plant trays, fertilizer, and books on marijuana
growth. The officers also found a loaded .22-caliber rifle,
700 rounds of ammunition, and a digital scale. Spears
was arrested and charged with possessing 100 or more
marijuana plants with intent to distribute, being a felon
in possession of a firearm, and maintaining a place for
the manufacture and distribution of marijuana.
B. Spears’s Initial Motions to Suppress
Spears filed an amended motion to suppress the
seized evidence, which the district court interpreted as
requesting a hearing under Franks v. Delaware, 438 U.S.
154 (1978). Spears attached an affidavit from a private
investigator who spoke to NIPSCO representatives,
including Karen Bruce, and photographs of Spears’s
home. The investigator stated that he was informed by
NIPSCO that the only communication the company
has with law enforcement is pursuant to subpoena, and
that NIPSCO does not report normal usage of electricity
6 No. 10-3338
for specific residences. The photographs showed that
the only piping outside Spears’s home was not PVC
piping, as the warrant affidavit stated, and was con-
nected to the home’s air conditioning unit. The govern-
ment responded with its own affidavit from Ms. Bruce,
in which she said that the defense’s characterization of
her statements was inaccurate, and that NIPSCO
can provide average monthly billing information for a
particular residence over the phone to members of the
general public. Based on the written submissions, the
court denied the motion.
Spears then filed a supplemental motion to suppress.
Spears submitted as an exhibit an FBI note received in
discovery that indicated that Ms. Bruce and NIPSCO
senior legal counsel told the FBI that nobody is
authorized to give out normal wattage usage over the
phone, and that it is against NIPSCO policy to do so.
Discovery also revealed that it was an analyst with the
FBI, not Duncanson, who spoke with someone with
access to the NIPSCO information. Accordingly, the
court determined that a Franks hearing was necessary.
C. The Franks Hearing
At the Franks hearing, the court heard testimony
from Duncanson, Troopers Michalak and Sample, FBI
analyst Randall Strapon, and Ms. Bruce. We discuss
only the relevant testimony.
Duncanson testified that she met with the informant
in person on July 30, 2008, and that she and the
No. 10-3338 7
informant drove past Spears’s home so that the informant
could identify it. She stated that she did not verify
the informant’s claim that there was black PVC piping
because there were two dogs present who would have
potentially barked. She confirmed that she had stated
in her affidavit that Spears “has a criminal history in
the state of Indiana,” but acknowledged that Spears
actually had a single conviction in 1995 for a sex offense
in the state of Wisconsin. Duncanson also confirmed
that although she stated in the affidavit that “I received
information from NIPSCO,” she did not personally talk
to anyone at NIPSCO; instead, she obtained the infor-
mation secondhand from FBI analyst Randall Strapon.
She acknowledged that NIPSCO’s response to the first
subpoena issued was on August 13, 2008, a week after
the search.
As for the trash pull, Duncanson stated that she and
a fellow officer obtained the trash from behind Spears’s
residence, and brought the trash to a garage and laid it
out on the bed of a truck. Duncanson did not assign
any significance to the items in the trash until
Trooper Sample pointed them out. She testified that
the marijuana stem was found on the truck’s bed, and
that the truck had previously been used by the
Hammond narcotics unit for trash pickups. Trooper
Michalak testified that he didn’t remember who
recovered the plant stem, and Trooper Sample first testi-
fied that Duncanson and Clark had found the plant
stem, but later stated that he was the one who located
it and identified its significance.
8 No. 10-3338
Randall Strapon, an investigative analyst associated
with the FBI who worked with a Hammond area multi-
agency task force, confirmed that he provided the energy
usage information to Duncanson. He testified that he
received the information from a contractor at NIPSCO
with access to the NIPSCO computer system database, a
method he finds speedier than issuing a subpoena.
Strapon indicated that he has three such contacts who
can provide NIPSCO information, but that he has never
met the sources and does not know what procedures
they use to obtain the information. He also stated that
he knew nothing about the size of the residence, and
relied, as he does in most cases, on the source to in-
dicate if the electricity usage is unusually high. He
stated, however, that these contacts had provided the
FBI with information for at least seventeen years, and
that Strapon has never had a reason to doubt the
accuracy of the information provided. Strapon
indicated that he was unaware that NIPSCO’s official
policy was not to reveal usage information to law en-
forcement absent a subpoena (as testified to by
Ms. Bruce), but that he followed up his inquiry with a
subpoena which confirmed the electricity usage at
Spears’s residence.
Following the hearing, the district court orally denied
Spears’s motion to suppress. The district court later
memorialized its decision in writing, and made four
findings that Spears now challenges on appeal. The
court stated that while there were inconsistencies in
the testimony regarding who found what during the
trash pull, the officers testified credibly about the items
No. 10-3338 9
found and these items provided strong evidence of a
marijuana grow operation. The court also rejected the
argument that Duncanson recklessly disregarded the
truth about the PVC piping on the side of the residence,
finding that the relevant question was Duncanson’s
belief about the source’s information, and that
Duncanson testified credibly about her inability to verify
the information. Third, the court found that Duncanson’s
statements regarding the information obtained “from
NIPSCO” were “marginally misleading,” but that there
was no evidence that the information obtained by
Strapon was false. Finally, the court found that though
the error with respect to Spears’s criminal history was
“somewhat misleading” because it implied that his crimi-
nal history was more relevant to the probable cause
determination than it was, this error did not invalidate
the warrant because the other information in the applica-
tion supported a finding of probable cause.
The case proceeded to trial, and the jury found Spears
guilty on all three counts. Spears now appeals the denial
of his suppression motion following the Franks hearing.
II. ANALYSIS
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court held that when a defendant makes a substantial
preliminary showing that the police procured the
warrant to search his property with intentional or
reckless misrepresentations in the warrant affidavit,
and such statements were necessary to the finding of
probable cause, the Fourth Amendment entitles him to
10 No. 10-3338
an evidentiary hearing during which he may challenge
the constitutionality of the search. Where a hearing has
been granted, as in this case, Franks instructs that if “at
that hearing the allegation of perjury or reckless
disregard is established by the defendant by a prepon-
derance of the evidence, and, with the affidavit’s false
material set to one side, the affidavit’s remaining
content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the
search excluded . . . .” 438 U.S. at 156. The district court
is therefore required to first determine whether the de-
fendant has shown by a preponderance of the evidence
that the false information was provided intentionally
or recklessly, and if so, whether the affidavit, stripped
of the false information, is nevertheless sufficient to
establish probable cause. See United States v. Whitley, 249
F.3d 614, 620 (7th Cir. 2001). As to the first question, the
state of mind of the affiant is not the only relevant one,
because “the validity of the search is not saved if
the governmental officer swearing to the affidavit has
incorporated an intentional or reckless falsehood told
to [her] by another governmental agent.” Id. at 621 (citing
United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir.
1994); United States v. Pritchard, 745 F.2d 1112, 1118 (7th
Cir. 1984)).
In reviewing a denial of a motion to suppress, we
review questions of law de novo and factual findings
for clear error. United States v. Ellis, 499 F.3d 686, 688
(7th Cir. 2007). Where a defendant challenges the denial
of a Franks hearing itself, we have found that a “showing
that a warrant was based on a false statement requires
No. 10-3338 11
an examination of historical facts, not the eventual
legal determination that any given set of facts add up
to probable cause for the issuance of a warrant,” and
have applied a clear error standard of review. United
States v. Mancari, 463 F.3d 590, 594 (7th Cir. 2006). We
have also applied the “clear error” standard to denials
of a motion following a Franks hearing. See Whitley, 249
F.3d 614, 621; United States v. Childs, 447 F.3d 541, 546
(7th Cir. 2006). We note however that though we give
“ ‘great deference’ to the conclusion of the judge who
initially issued the warrant,” United States v. Garcia, 528
F.3d 481, 485 (7th Cir. 2008) (citing United States v. McIntire,
516 F.3d 576 (7th Cir. 2008), that same rationale does not
apply to the question facing the district court judge
following a Franks hearing: whether the affidavit,
stricken of its falsities, meets the standard of probable
cause. See Garcia, 528 F.3d 481, 485 (“On the mixed ques-
tion whether the facts add up to probable cause, we give
no weight to the district judge’s decision . . . .”); see also
United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012)
(“Whether a corrected affidavit supports a finding of
probable cause is a question of law that we review
de novo.”) (citing United States v. Garcia-Zambrano, 530
F.3d 1249, 1254 (10th Cir. 2008)). We review that deter-
mination de novo.
A. The Trash Pull
Spears challenges a number of statements in the
affidavit regarding the July 31 trash pull. He first
contends that the affidavit included a material omission
12 No. 10-3338
when it stated that the marijuana stem was found “in
the trash” without disclosing that the trash was emptied
onto the bed of a truck that was used in previous trash
pulls. Such an inclusion would have painted a broader
picture, but the initial inquiry for Franks purposes is not
one about how the affidavit can be perfected, it is
simply whether the misinformation in the affidavit
was included (or the material omission was excluded)
with intent or reckless disregard for the truth. Here,
Spears does not show that the district court clearly erred
in its determination that the omission was intentional
or reckless, especially since the stem was found along
with other evidence that tended to show a marijuana
grow operation that Spears does not allege could have
been leftover on the truck from a previous pull.
As to those other items, Spears argues that Duncanson
gave too much credit to the aquarium materials (that
the informant did not mention) without disclosing that
no fertilizer or growing mediums (which the informant
did mention) were found. However, it is perfectly clear
that aquarium equipment has a legal purpose, namely,
having a home aquarium. We cannot find that the
failure of Duncanson to articulate that these items have
a legal purpose is a material omission, let alone one
made with intent or reckless disregard. Additionally, it
is also clear from the face of the affidavit that the items
recovered during the trash pull did not perfectly match
the items described by the informant (with the exception
of the plant stem). We therefore find that the omission
was immaterial. See United States v. Norris, 640 F.3d 295,
302 (7th Cir. 2011) (“[T]he facts withheld also must be
No. 10-3338 13
‘material’ to the probable cause determination.”) (citation
omitted).
Spears does not heavily rely on the inconsistent testi-
mony as to who actually found the plant stem to show a
Franks violation, but for purposes of completeness, we
address that argument here. The affidavit stated that
“Trooper Sample located a fresh, green/brown, pliable
plant stem in the trash,” and “immediately recognized
the stem to be from a marijuana plant.” Spears points to
testimony at the Franks hearing that he argues calls this
into question. Trooper Michalak testified that he didn’t
remember who recovered the marijuana stem. Trooper
Sample first testified that Agents Duncanson and
Clark had pulled plant material out of the trash before
he arrived at the garage, but then later stated that it was
he who found the plant material.
Regardless of the slight inconsistencies, however, the
district court found that the testimony did not reveal
that the statements in the affidavit were made with
intent to deceive or with reckless disregard of the truth.
The court noted that Duncanson prefaced the affidavit
by saying that the information was based on firsthand
knowledge “and the information provided by other
law enforcement officers and witnesses,” and that
this statement was applicable here. The court found the
slight variations in testimony as to who found the stem
did not show intent or reckless disregard for the truth.
This finding is not clearly erroneous.
14 No. 10-3338
B. PVC Piping
In her affidavit, Duncanson stated that the confidential
informant told her about black PVC piping that was
routed from the basement of Spears’s home to the
exterior of the residence. Spears alleges that Duncanson
should have seen that there was, in fact, no such piping
when she surveyed the house with the informant, and
her failure to inform the court of this amounted to a
Franks violation.
The district court noted that photos admitted during
the Franks hearing (well after the warrant was executed)
made it “seem[ ] clear” that the informant was “likely
mistaken” about there being PVC piping coming from
the home. Regardless, the district court’s focus was on
what Duncanson knew at the time of the affidavit, not
what the informant knew or thought, and the court cred-
ited Duncanson’s testimony that she was unable to
verify that there was black PVC piping during her ob-
servation because of the presence of two dogs. Spears
does not point to anything besides those post-search
images to attack the district court’s finding. The photo-
graph of the home submitted along with the affidavit
does not so clearly show that no piping existed, and a
person would not be reckless for failing to alert the court
to the informant’s error given that image. There is
therefore no clear error in the district court’s determina-
tion that Duncanson did not intentionally or recklessly
fail to alert the court to the lack of PVC piping.
No. 10-3338 15
C. NIPSCO Information and Spears’s Criminal History
Duncanson stated in the affidavit that “I received
information from NIPSCO,” and “NIPSCO reported” an
excessive kilowatt usage compared to “the normal
usage . . . for a residence of this size.” The Franks hearing
and documents turned over during discovery revealed
that these phrases were not entirely accurate. Duncanson
did not receive the information directly from NIPSCO,
and in fact did not directly receive any electricity infor-
mation herself. It was obtained by Randall Strapon, an
analyst assigned to the FBI. And Strapon himself did
not receive the information “from NIPSCO” in the
ordinary sense of the phrase, since it was obtained from
a source not directly employed by NIPSCO who had
access to the NIPSCO database. Spears argues that a
Franks violation occurred because Duncanson: (1) misrep-
resented that she had personal involvement with ob-
taining the information; (2) misrepresented the nature
of how she obtained the information; and (3) provided
substantively false information.
We can easily dispense with Spears’s third argument,
which is premised on the fact that neither Duncanson
nor Strapon verified that the source properly calculated
the average monthly electricity usage for comparison
purposes. Courts have found that failing to inform the
court of dissimilarities in houses being compared can
amount to a material omission. See, e.g., United States v.
Huggins, 299 F.3d 1039, 1045 n.6 (9th Cir. 2002) (“Evidence
demonstrating that the affidavit had failed to state,
for example, that the neighboring houses were much
16 No. 10-3338
smaller . . . might well have made out a material omission
that would preclude reliance on the good faith excep-
tion.”); see also United States v. Scully, 1992 WL 159329, at *6
(N.D. Ill. 1992) (unpublished) (“Anyone who looked at
these homes was reckless in stating that the three were
comparable.”). Here, by contrast, the affidavit did not
compare Spears’s electricity usage with that of his neigh-
bors; rather, the affidavit set forth the average monthly
usage for a “residence of this size.” It bears repeating
that the first step of the Franks inquiry following a
hearing focuses on Duncanson’s (and her fellow offi-
cers’) state of mind. See Franks, 438 U.S. 154, 156, 171.
Though neither Strapon nor Duncanson were aware of
the methodology or calculations made by the source,
there was nothing revealed in the Franks hearing
that suggests that Duncanson or Strapon had reason to
believe that a false or misleading comparison was
made. Spears therefore cannot show that the district
court clearly erred in finding that Duncanson did not
intentionally include false information.
Spears’s first two arguments are closer questions.
Duncanson stated in the affidavit that she received infor-
mation from NIPSCO. The district court said this was
“marginally misleading” given that the information
was not received by Duncanson directly. But then the
district court said it was “not really” misleading, be-
cause earlier in the affidavit Duncanson stated that all
information in the affidavit was based upon “firsthand
knowledge and the information provided by other law
enforcement officers and witnesses.” (Emphasis added.)
No. 10-3338 17
Spears relies on United States v. Davis, 714 F.2d 896, 899
(9th Cir. 1983), where the affiant (falsely) stated that he
conducted personal interviews with sources when in fact
they were conducted by his subordinates. The affiant cut
and pasted an affidavit from another investigation, and
revealed during a Franks hearing that he knew the state-
ment regarding his personal involvement was false, but
submitted the affidavit anyway. Id. at 899. The Ninth
Circuit found that the “entire problem could have been
avoided if [the affiant] had simply rewritten the
affidavit to indicate that he was relying on his officers
who had personally interviewed the informants. Id.
(citations omitted). The court held that “by failing prop-
erly to identify [his] source[ ] of information the af-
fiant[ ] . . . made it impossible for the magistrate to
evaluate the existence of probable cause,” and that “[t]he
fact that probable cause did exist and could have
been established by a truthful affidavit does not cure
the error.” Id.
Other courts have been more forgiving with phrasing
implying personal knowledge or a personal role in the
investigation in a Franks analysis. The Eleventh Circuit,
for example, has cautioned that the requirement to
state in the affidavit that an officer is relying upon other
officers “should not be viewed ‘in a hypertechnical,
rather than a common-sense, manner.’ It is sufficient if
the affidavit recites at the outset, or if it is clear from
reading the affidavit as a whole, that it is based in part
upon information obtained from other law enforcement
officers.” United States v. Kirk, 781 F.2d 1498, 1505 (11th
Cir. 1986) (quoting United States v. Vantresca, 380 U.S. 102,
18 No. 10-3338
108-09 (1965)). In Kirk, however, the affiant “properly
identified the source of the information . . . and outlined
the circumstances which indicated the reliability of the
information.” Id. In the affidavit, the affiant included
the names of all of the officers engaging in surveillance of
the defendant and what that surveillance entailed. Id.
at 1499-1500. The Eleventh Circuit found no misrepre-
sentation where the affiant included some events that
he had not personally witnessed. Id. at 1505; see also
United States v. Reed, 700 F.2d 638, 641 (11th Cir. 1983)
(upholding warrant even though affiant failed to
specify the source of his information because a
“reasonable person” would infer that the information
came from fellow police officers).
Spears argues that no magistrate judge could infer
from this affidavit that the information came from a
fellow officer (since Strapon was not actually an officer
or otherwise identified anywhere in the affidavit), or
that the actual sources of the information were reliable.
Alas, this is not a question we must resolve, because
even if we agreed with Spears’s position that the
omission was material, misleading, and done so with
intent or reckless disregard, and that the district court
committed clear error, we would find that the warrant
contained sufficient probable cause with the electricity
information stricken, as discussed below.
The same is true of the statement related to Spears’s
criminal history. Duncanson stated that she ran a crim-
inal history check on Spears, “and found that he has
a criminal history in the state of Indiana.” This was
No. 10-3338 19
false. Spears had a single conviction in 1995 for a sex
offense in the state of Wisconsin. The district court
found this “somewhat misleading” because “the search
warrant related to drugs, and the prior conviction was
a sex offense, yet this wasn’t disclosed,” and because
“this could have misled the magistrate into believing
that the prior offense was related to the potential crimes
that were the subject of the search.” The district court
found, however, that even if stricken, the warrant
would still stand.
Probable cause is established when, based on the
totality of the circumstances, the affidavit sets forth
sufficient evidence to induce a reasonably prudent
person to believe that a search will uncover evidence of
a crime. See Illinois v. Gates, 462 U.S. 213, 238 (1983);
United States v. Garcia, 528 F.3d 481, 485-86 (7th Cir.
2008). Where probable cause is based on information
supplied by an informant, we consider several factors:
“(1) the extent to which the police have corroborated
the informant’s statements; (2) the degree to which the
informant has acquired knowledge of the events through
firsthand observation; (3) the amount of detail
provided; and (4) the interval between the date of the
events and police officer’s application for the search
warrant.” United States v. Koerth, 312 F.3d 862, 866 (7th Cir.
2002).
In this case, the informant provided detailed informa-
tion about the marijuana grow operation, and stated that
he or she had obtained the information firsthand. The
information was specific as to the size of the operation,
20 No. 10-3338
the location of the marijuana plants, and the equipment
used in the endeavor. Duncanson and other officers
corroborated that Spears lived at the premises. During
the trash pull, the officers found evidence that, in
totality, would induce a reasonably prudent person to
believe that a grow operation was in progress, including
the aquarium equipment (that in the officers’ expertise,
was used for the cultivation of marijuana plants), and, of
course, the marijuana stem. Finally, the amount of time
between the informant’s information, the corroboration
of that information, and the application for the war-
rant was minimal. Accordingly, we find that even if
the electricity and criminal history information were
stripped, the remaining portions of the affidavit would
be sufficient for a finding of probable cause. We there-
fore decline to reach Spears’s arguments regarding
those portions of the affidavit, and affirm the conviction.
III. CONCLUSION
For the reasons set forth above, Spears’s conviction
is A FFIRMED.
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