State v. Russell

ROSSMAN, P. J.,

dissenting.

Even assumingthat the TID and the anonymous tips cannot properly be considered, I believe that the remaining information in the affidavit, taken as a whole, is sufficient to establish probable cause to believe that defendant was growing marijuana in his shed. Accordingly, I dissent.

*268The majority correctly frames the issue in this case as “whether a neutral and detached magistrate could have concluded that there was probable cause to search defendant’s shed.” 122 Or App at 265. In making that determination, we are to construe the affidavit supporting the warrant in a commonsensical, nontechnical and pragmatic fashion, “looking at the facts recited and the reasonable inferences that can be drawn from those.” State v. Prince, 93 Or App 106, 112, 760 P2d 1356, rev den 307 Or 246 (1988). The majority’s approach, which is reminiscent of a de novo type review, is contrary to the standard of review that should be employed:

“An affidavit supporting a search warrant is tested by much less rigorous standards than govern the admissibility or weight of evidence at trial. After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. The issuing magistrate’s determination of probable cause should be paid great deference by a reviewing court,. and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.” State v. Prince, supra, 93 Or App at 112. (Emphasis supplied; citations omitted.)

See also State v. Evans, 110 Or App 46, 51, 822 P2d 1198 (1991); State v. Gale/Rowden, 105 Or App 489, 496, 805 P2d 158, rev den 311 Or 427 (1991); State v. Howell, 93 Or App 551, 557, 763 P2d 179 (1988), rev den 307 Or 405 (1989).

Excluding the anonymous tips and the information obtained by the TID, the affidavit disclosed the following facts:

(1) Defendant’s monthly electric bills were 2-3 times higher than the average monthly bill for a similarly situated house more than twice the size of defendant’s. We have previously noted the importance of abnormally high power consumption in assessing the possibility of the existence of a marijuana growing operation. State v. Prince, supra, 93 Or App at 113.
(2) The affiant observed a large vent fan on the shed wall, similar to fans he had previously seen cooling indoor marijuana growing operations. Based on his training and experience, the affiant knew that the fan would be necessary to cool the shed to allow the marijuana to grow.
*269(3) Defendant also ran a sprinkler on the metal roof, which the affiant believed had the effect of further cooling the shed.
(4) The affiant knew from training and experience that indoor marijuana growing operations used bright lights. Although the shed is windowless, sometimes late in the evening the affiant was able to see bright light escaping through a crack in the shed’s wall at times when the affiant had reason to believe that the shed was unoccupied.
(5) Defendant arranged to read his electric meter. The affiant believed that defendant read his meter to prevent others from getting close enough to the shed to detect the odor of the marijuana.
(6) Defendant kept an aggressive dog.

I believe that this case boils down to nothing more than a simple arithmetic calculation:

Extremely high power consumption
+ Large vent fan on shed wall
+ Sprinkler on the metal roof
+ Bright lights seen in the shed
+ Defendant arranging to read his own electric meter
+ Defendant keeping an aggressive dog
= Probable Cause

It is irrelevant that there might have been an innocent explanation for every fact detailed in the affidavit. See State v. McBride, 96 Or App 268, 276-77, 773 P2d 379, rev den 308 Or 184 (1989); State v. Prince, supra, 93 Or App at 114. The facts, taken together, represent an overall pattern of activity that would permit a reasonable magistrate to conclude that defendant was probably growing marijuana in his shed. See State v. Prince, supra, 93 Or App at 114.

The affidavit also sets out the affiant’s extensive training and experience in narcotics investigations, including his particular knowledge of growing and processing marijuana. That expertise is an important factor to be considered when evaluating the facts contained in the affidavit, because “an act which might appear innocent to a lay person may be incriminating when viewed by a trained and experienced *270police officer.” State v. Prince, supra, 93 Or App at 113. The affiant’s training and experience are particularly important in analyzing the power consumption information as well as the facts that there was a large vent fan on the shed wall, that a sprinkler ran on the metal roof, that bright lights were left on in the shed late in the evenings when the officer had reason to believe that no one was there and that defendant chose to read his own meter. See State v. McBride, supra, 96 Or App 268, 276-77; State v. Prince, supra, 93 Or App at 113.

After reviewing the unchallenged information set out in the affidavit, considering that information in light of the affiant’s extensive training and experience in investigating marijuana cultivation and according due deference to the preference for searches pursuant to a warrant and to the original determination of the magistrate, I believe that our only viable option is to sustain the magistrate’s finding of probable cause. Accordingly, I dissent.