(dissenting) — The majority opinion reverses the trial court’s order suppressing evidence obtained pursuant to the execution of a search warrant at 7222 Palatine Avenue North (hereinafter the Palatine address). The majority acknowledges that the issue here is "limited to whether the affidavit contained sufficient information to establish probable cause to search the Palatine address.” Majority, at 826.1 have no quarrel with the authorities cited by the majority. The narrow issue is whether the affidavit established a probability that O’Neil was living at the Palatine address or set forth independent evidence that he was using a house where he was not living to store confidential records of his marijuana grow operations.
This case arises out of an investigation of Thomas O’Neil which began on January 14, 1993, when the police received a tip from a confidential informant, and continued through the application for and issuance of the search warrant on March 10, 1993. The issue in this appeal is narrow because after 2 months of intense surveillance of all the properties owned by O’Neil and listed in the search warrant and of the day-to-day activities of O’Neil and his Codefendants, no evidence of any kind was ever developed indicating any criminal activity at the Palatine address. O’Neil was personally observed many times going to the other addresses listed in the search warrant affidavit, but neither O’Neil nor his automobile was ever observed at the Palatine address. From their extensive investigation, police detected the smell of growing marijuana coming from some of the other addresses, noted above normal power usage in respect to other addresses, and observed drawn blinds indicating a desire for secrecy at other addresses, but no evidence of this type was ever developed as to the Palatine address. Thus, the prosecution had no way of tying O’Neil or his Codefendants to the Palatine address, other than the fact that he owned it and formerly had used it as his personal residence.
There was no evidence O’Neil lived at the Palatine address at any time during the 2-month investigation. In fact, the evidence was to the contrary. The State concedes, *829and the trial court found as a fact (which the State does not dispute), that respondents Regan Hagar and Leigh Bryan were living at the Palatine address at all times during the investigation. The trial court found in finding of fact 9(1) and (2) that the power records for the Palatine address were in Hagar’s name from June 1, 1992, through the date in March 1993 when the police sought the search warrant. Those same records for the Palatine address list O’Neil as the landlord, not as a resident. The trial court also noted in its findings of fact that Hagar and Bryan were not named as suspects or in any other capacity in the 28-page affidavit in support of the warrant to search their residence at the Palatine address.
The search warrant affidavit also reflects knowledge on the part of the affiant that O’Neil was actually living in his parents’ condominium in Mountlake Terrace and was seen there on numerous occasions before the police sought the search warrant. The State argued that the search warrant affidavit provided an adequate basis for inferring that O’Neil lived at the Palatine address, even though the State conceded that he was seen many times going in and out of the condominium in Mountlake Terrace and was never seen at the Palatine address. Despite this evidence to the contrary, and despite the total absence of any evidence of criminal activity at the Palatine address, the majority opinion asserts that the search was valid because it was "based upon an inference that Defendant O’Neil resided there, and thus, evidence of criminal activity would be found there.” Majority, at 826. The majority opinion states that "[t]he fact that the affidavit does not mention seeing O’Neil at the Palatine address is irrelevant since there is no indication that police performed surveillance there.” Majority, at 827. This statement, however, is contrary to the record made during the hearing on the motion to suppress. In that hearing, the prosecutor acknowledged that the officers often drove by the Palatine address. The trial judge noted that in their report, the officers stated they could not detect an odor of marijuana at the Palatine address, the drapes were open, and the *830house gave every appearance of being a normal residence. The prosecutor acknowledged on the record, "That’s true. As far as the surveillance, they sat on the Palatine address for an extensive period of time.” It is true that the search warrant affidavit does not describe surveillance at the Palatine address. However, from the extensive police surveillance of O’Neil’s and the other Codefendants’ activities, and from the intense surveillance of the other addresses listed in the search warrant, it is obvious that the reason the Palatine address is not mentioned in the affidavit is that the police were unable to develop incriminating evidence at that address.
For example, on January 27,1993, a radio transmitter was installed for the purpose of tracking the movements of Codefendant Craig Porter. The search warrant affidavit indicates that Porter’s full-time job was to oversee and tend to O’Neil’s marijuana grow operations. While the radio transmitter was in place, Porter did not go to the Palatine address. Had he done so, we can be confident this information would have made its way into the search warrant affidavit.
The majority opinion strains to reach the conclusion that even though O’Neil was not actually living at the Palatine address and was staying at his parents’ condominium until it was sold, the Palatine address, rather than the condominium, was nevertheless a logical place for O’Neil to store his confidential records. The majority overlooks the following evidence from the search warrant affidavit indicating that O’Neil did keep records at the condominium while he was staying there. "Rock Candy” is a nightclub business apparently owned by O’Neil and located at 1812 Yale Avenue North. On February 9, 1993, while the police had Rock Candy under surveillance, they observed O’Neil arrive at the back door of the nightclub in his 1992 Cadillac. He entered Rock Candy with another man and came out carrying two legal-size white boxes which he placed in the back of his car. The other man came out with a similar box and placed it in the trunk of the car. O’Neil then drove to 2401 — 10th East, *831which the search warrant affidavit indicates contained 1,250 square feet of cold storage space. From that location, O’Neil took another box similar to the type taken from Rock Candy and placed it in his Cadillac. He then drove to the condominium in Mountlake Terrace. The Cadillac was observed parked near the door of the condominium with the trunk open and the passenger side door open. The search warrant affidavit recites that Officer Dueñas observed O’Neil carrying a box similar to the boxes placed in his car from the car to the condominium.
On February 26, 1993, two officers went on a tour of the Mountlake Terrace condominium and, while there, observed two legal-size boxes and a lock box in the condominium. They also learned that the condominium has two storage facilities, one at the back door and one by the covered parking lot.
In discussing the possibilities of storing confidential records, the majority opinion states, "They certainly would not be stored at the condominium because it was for sale and real estate agents and potential buyers were likely to be entering and inspecting the premises at any time.” Majority, at 827. This statement is contrary to evidence strongly indicating that records of some kind were being kept by O’Neil at the condominium while he was living there and that facilities were available to preserve confidentiality.
While O’Neil at one time identified his residence as the Palatine address in his automobile registration, the trial court found that the most recent registration dated December 15, 1992, listed his address as 1812 Yale Avenue North.
It is noteworthy that the search warrant affidavit completely omitted some of the evidence pointing to a lack of probable cause for a search of the Palatine address. These facts involve the power records from the Palatine address where the resident is listed as Regan Hagar from June 1, 1992, to the date of the warrant; the fact that the power records for the Palatine address listed O’Neil as the landlord; the fact that the most recent Washington vehicle registration records for O’Neil’s 1992 Cadillac listed his address as 1812 Yale Avenue North; that the police were told that *832O’Neil was living in the condominium in Mountlake Terrace; that O’Neil was never observed by the police coming from or going to the Palatine address; and that the investigating officers were unable to acquire evidence of suspected criminal activity at the Palatine address during 2 months of intensive surveillance.
The State does not challenge any of the findings of fact entered by the trial court in its July 29, 1993, suppression order. As recited above, those findings clearly supported the trial court’s conclusion that the search warrant affidavit did not establish probable cause that criminal activity was being conducted at the Palatine address or that there was probable cause that Defendant’s business records would be located at that address.
For these reasons, the decision of the trial court should be affirmed.
After modification, further reconsideration denied September 15, 1994.
Review denied at 125 Wn. 2d 1016 (1995).