State v. Donahue

WARREN, J.,

dissenting.

I disagree that the affidavit establishes that there was probable cause to believe that defendant was growing marijuana. Everything he did, according to the affidavit, was consistent with lawful activity. His unfriendly and secretive attitude may legitimately inspire curiosity as to what he was doing, but it does not suggest unlawful activity, much less a particular unlawful activity. Although his insulating the outbuildings and the use of large amounts of electrical power may *348be consistent with marijuana growing, they are just as consistent with the growing of orchids or African violets and, given the evidence known to the officers, there is no reason to believe that he was more likely doing one than the other.

Consistency of the facts with a body of learning about the cultivation of marijuana in the abstract ought not to be, by itself, a sufficient basis for the issuance of a search warrant. In my view, there must be evidence that what defendant was doing was more consistent with growing marijuana than with some other activity.

State v. Christen/Hankins, 79 Or App 774, 720 P2d 1303 (1986), was such a case. The evidence there was like that in this case, except that there was additional evidence from an informant that the defendants were currently growing marijuana. Similarly, in State v. Prince, 93 Or App 106, 760 P2d 1356 (1988), there was evidence that, about a year before the affidavit for the search warrant was made, but after the defendant took possession of the premises, marijuana had been seen growing on the property. The defendant’s conduct thereafter was consistent with a confining marijuana growing operation. In my view, the additional facts in Prince make the difference. In this case, there is no evidence connecting defendant’s suspicious conduct with any illegal activity. More than mere suspicion is required before a search warrant may properly issue. See State v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984).