concurring and dissenting: I agree with the majority that (1) Officer Rick Howard did not invade the curtilage of the Mells’ home when he walked onto the side yard; (2) the warrantless search of the Mells’ home was not justified by exigent circumstances, which requires that paragraph 5 be excised from Detective Aaron Procaccini’s probable-cause affidavit; and (3) the State has waived any claim that a good-faith exception to the exclusionary rule applies here. But I respectfully dissent from the court’s conclusion that the affidavit provided an insufficient basis for the issuance of a search warrant for the Mells’ home. I would find that the affidavit sets forth sufficient facts to justify the warrant.
The Probable-Cause Affidavit Provided Sufficient Facts to Support the Magistrate’s Conclusion that There Was a Reasonable Probability that Evidence of a Crime Would Be Found in the Mells’ Home.
Even with paragraph 5 removed, the affidavit provided this relevant information:
• Officer Howard observed several plants he believed were marijuana plants in the side yard of the residence.
• Nancy Mell, a resident of the home, saw Howard looking in the direction of the plants. She said, “Do you see that?” He replied, “The weeds?” She continued, “Are those what I think they are?” When Howard looked more closely, Mell said that her neighbor had been mowing around those plants for the past month, confirming that she had seen them before. Nancy Mell told Howard that she had wanted him to remove the plants.
• Another officer, Detective Procaccini, came to the scene. He counted 11 plants that he believed were marijuana plants growing on the Mells’ property. The plants were close enough to the Mells’ back porch that Nancy Mell was able to talk with Procaccini while he was looking at the plants. She told him that her husband had just planted grass in that area and speculated that marijuana seeds might have been mixed in with the grass seed. She also asked, “Could it be possible that a dog or a bird ate the seeds and pooped in my yard?”
*501• Procaccini noticed straw on the ground in the area where the marijuana plants were growing but not in any other location on that side of the Mells’ house.
• Procaccini tested a portion of one plant with a field-test kit. The test was positive for marijuana.
• At the time of submission of the affidavit, a check of criminal records showed that Nancy Mell had prior arrests within the last 4 years for possession of drug paraphernalia, and George Mell had an arrest 6 years ago for possession of cocaine and possession of drug paraphernalia.
• Procaccini had attended several courses on narcotics investigation and has participated in the investigation of numerous narcotics cases. Based on his training and experience, drug traffickers and users commonly have paraphernalia (including packaging) in their possession, and those who cultivate marijuana often have starting pots, fertilizer, grow pots, and literature about marijuana cultivation in their possession.
Based upon the affidavit, the magistrate found probable cause to believe the crimes of cultivation of marijuana, possession of marijuana, and possession of drug paraphernalia were being committed. The magistrate concluded that there was a fair probability that contraband or evidence of a crime would be found in the house and approved a search warrant for it.
The majority properly notes that the magistrate only needs to conclude that there is a “fair probability” that contraband or evidence of a crime will be found in a particular place. See State v. Hicks, 282 Kan. 599, Syl. ¶ 1, 147 P.3d 1076 (2006). Further, our review of the magistrate’s finding of probable cause is inherently deferential — we need only find that the affidavit provided a “substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched.” We do not second-guess the magistrate by determining whether, as a matter of law, probable cause actually existed. Hicks, 282 Kan. 599, Syl. ¶ 2. The standard set forth in Hicks is met here.
An officer saw 11 marijuana plants growing in the Mells’ yard; they were close enough to the back porch that the officer could have a conversation with Nancy Mell while he was looking at the *502plants. Nancy Mell’s comments were inconsistent and suspicious. She told Officer Howard that the neighbor had been mowing that area and had mowed around the plants. She told Detective Procaccini that her husband had recently planted new grass in that area. She also suggested a rather unusual means for the plants to have gotten there. In the side yard, straw was on the ground only in the area of the marijuana plants, suggesting some cultivation activity there. And both Nancy and George Mell had prior drug arrests.
Taking all of these facts into account, there is enough to support the issuance of a warrant for the home. The facts must be considered as a whole, see Hicks, 282 Kan. at 613-14, and caselaw explicitly tells us that some of these facts provide substantial support for the issuance of a warrant, at least when other facts also support a finding of probable cause. Prior arrests of a similar nature may be used to establish probable cause for a search warrant. State v. Ruff, 266 Kan. 27, Syl. ¶ 9, 967 P.2d 742 (1998); State v. Isaacson, No. 90,231, unpublished opinion filed July 22, 2005. The contradictory and implausible and frankly bizarre statements provided by Nancy Mell to officers also support a finding of probable cause here. See State v. Romo-Uriarie, 33 Kan. App. 2d 22, 35-36, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004) (finding that defendants’ inconsistent statements and implausible explanations, when combined with other factors, contributed to a finding of probable cause). And the majority concedes that evidence of cultivation is significant. Straw placed over an area in which new plants are growing — whether they be marijuana plants or lawn grass or some of both — is evidence of cultivation, as was Nancy Mell’s statement that her husband had recently planted seeds in the area of the marijuana plants.
To be sure, some cases have found that the mere presence of marijuana plants in or near the yard of a home does not give cause for a search warrant for the home. E.g., People v. Pellegrin, 78 Cal. App. 3d 913, 144 Cal. Rptr. 421 (1977) (observation of one marijuana plant in defendant’s backyard was insufficient basis for search warrant of home). But we have much more than the mere presence of some marijuana plants here, and I believe that the decision of *503the United States Court of Appeals for the Seventh Circuit in United States v. Malin, 908 F.2d 163 (7th Cir.), cert. denied 498 U.S. 991 (1990), is persuasive and attuned to the deferential standard set forth in Hicks.
In Malin, the court held that the observation of six marijuana plants growing in the backyard of a residence gave sufficient cause for a search warrant for the home. The court properly noted that the evidence at hand indicated that it would be reasonable to seek evidence in the home, even though the evidence was indirect and there might be an innocent explanation:
“Concededly, [the officer’s] complaint did not directly link the marijuana to the house. Direct evidence, however, is not necessary to a probable cause determination. [Citation omitted.]‘In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Citations omitted.] A judge making a probable cause determination ‘need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place. . . . [The judge] need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.’ [Citation omitted.] In reaching his conclusion, a judge ‘is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.’ [Citations omitted.] In this case, [the officer’s] observation of marijuana growing in Malin’s yard reasonably yielded the conclusion that marijuana or other evidence of marijuana possession would be found in Malin’s house. [Citation omitted.]
“Malin makes much of the fact that [the officer’s] complaint cited no evidence establishing that the marijuana was cultivated (although the marijuana was in fact cultivated). Malin argues that [this] failure to cite evidence of cultivation precluded the issuing judge from reasonably inferring that marijuana would be found in the house. We disagree. While evidence of cultivation would have informed the probable cause determination, it was not necessary. Malin implies that an innocent explanation (i.e., that the marijuana grew wild) negated the inference that criminal evidence would be found in the house. To provide probable cause, however, a complaint for a search warrant ‘need only allege specific facts establishing a reasonable probability that the items sought are likely to be at the location designated; the [complaint] need not also negate every argument that can be asserted against that probability.’ [Citations omitted.] Although [the officer’s] complaint contained less than optimum information, it provided enough for the issuing judge to find probable cause.” Malin, 908 F.2d at 165-66.
*504Our case has much stronger evidence in support of the search warrant than found in Malin. In addition to the presence of 11 marijuana plants in the Mells’ yard within a short distance of the back porch, we have Nancy Mell’s admission that she knew they were there, her inconsistent explanations about how they might have gotten there, her statement that her husband had recently planted seeds in that very area, the presence of straw only around the plants in that area of the yard, and prior arrests of both Nancy and George Mell for possession of drug paraphernalia.
The Majority Improperly Analyzes Facts Supporting Probable Cause in Isolation and Usurps the District Court’s Function as Fact-finder.
The majority takes two approaches in arguing against the conclusion that the facts in the affidavit provided sufficient support for the issuance of the warrant. First, they attempt to cabin each fact separately, often citing a case that indicates that this fact alone does not provide probable cause to search a residence. Second, they have usurped the role of the trial court to make factual findings related to the issues before us.
The Facts — and the Reasonable Inferences from Them — Must Be Considered as a Whole.
Each fact is not a lone cabin in the wilderness; taken together, a cluster of cabins indicates a community rather than isolation. The facts set forth in the affidavit must be considered as a whole, not separately. See State v. Ramirez, 278 Kan. 402, 406-7, 100 P.3d 94 (2004) (probable-cause determination must consider all facts together “rather than evaluating each suspicious factor in isolation and asking whether there was an innocent explanation for the activity”). The majority does not follow this rule. For example, the majority cites State v. Malm, 37 Kan. App. 2d 532, 154 P.3d 1154, rev. denied 284 Kan. 949 (2007), for the proposition that an arrest for possession of drug paraphernalia found in a vehicle doesn’t provide probable cause to search the person’s home. But here we have prior drug-related offenses plus marijuana growing within *505steps of the back porch of the home plus inconsistent statements plus cultivation in the area of the plants.
The majority also cites evidence — not found in the affidavit— that it contends eliminates inferences of cultivation or illegal activity by the Mells. For example, the majority notes that evidence was presented in the suppression hearing that weeds were growing around the marijuana plants and that the area had not been mowed. Even if that information were properly before us in reviewing the magistrate’s decision to issue the warrant, however, it only presents one lens through which the information might be viewed as possibly innocent. But “[t]he fact that an innocent explanation may be consistent with the facts alleged . . . does not negate probable cause.” United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985). And there is strong evidence in the affidavit contrary to the majority’s contention that cultivation inferences were eliminated by this other testimony. Nancy Mell said her neighbor had been mowing around the plants for a month; Nancy Mell said her husband had recently planted grass in the area of the plants; and straw had been placed around the marijuana plants. The facts — and the inferences created from them — do not magically disappear from the affidavit in the face of some contrary information for our purpose of determining what the magistrate could consider fairly probable on the information before him.
The Majority Has Taken Over the Role of Fact-finder, Even to the Extent of Making Credibility Determinations that Should Only Be Made bu the District Court.
The majority does not explicidy find that the testimony of Detective Procaccini or Officer Howard lacked credibility. But it has implicitiy done so. Without doing so, the majority could not find that material misrepresentations and omissions were made in the affidavit. We are thus required to review the magistrate’s decision based solely on the information contained in the affidavit. As already discussed, that information provided a sufficient basis for the issuance of the warrant to search the Mells’ home.
The majority correctly notes that the district court held an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 *506L. Ed. 2d 667, 98 S. Ct. 2674 (1978). At such a hearing, the defendant has the burden to prove by a preponderance of the evidence that a material misstatement or omission in the affidavit exists and that it was either intentionally misrepresented or omitted or presented in reckless disregard for the truth. 438 U.S. at 155-56. Reckless disregard for the truth in this context means that the affiant actually had serious doubts about the truth of the allegations. Hernandez v. Conde, 442 F. Supp. 2d 1131, 1139 (D. Kan. 2006); see also St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968) (reckless disregard for the truth in libel claims requires that defendant “in fact entertained serious doubts as to the truth” of the statement made). We must review the proof as presented in the affidavit to the magistrate unless the Mells show both that there has been a material misrepresentation or omission in the affidavit and that this was either intentional or in reckless disregard for the truth. See Franks, 438 U.S. 154; Hicks, 282 Kan. at 612; State v. Landis, 37 Kan. App. 2d 409, 415, 156 P.3d 675, rev. denied 284 Kan. 949 (2007). The district court here made no finding that Detective Procaccini made any intentional or reckless misstatement or omission in the affidavit.
In support of its claim that the affidavit contained materially false or misleading information, the majority cites two of the district court’s statements — about die straw in the Mells’ yard and misleading statements in the affidavit — but both are taken out of context. First, the district judge did say that “there was evidence that there was straw throughout the lawn.” But the judge did not make that statement as part of any finding that the affidavit was materially false or misleading or that Detective Procaccini had intended to mislead anyone. Instead, the district court referenced the straw only in support of its erroneous ruling that the marijuana plants were within the curtilage of the home. In explaining the curtilage ruling, the judge went through several factors that are to be considered in determining whether an area is within the curtilage, including steps — like placing straw — that might protect the area from observation:
“And four, the steps taken by the resident to protect the area from observation by people passing by. There was evidence that these marijuana plants, few ma*507rijuana plants, were interspersed with grass. I think it’s also important on this issue to mention another fact that I had not mentioned up to now . . . that there was evidence that there was straw throughout the lawn of the Mell residence, straw in the back, straw in the front, and all of this straw would be in the nature of what you put down to try to get a new stand of grass, and that was throughout. I think that is important on factor four, the steps taken by the resident to protect the area from observation by people passing by.” (Emphasis added.)
The judge did not suggest that he considered the existence of straw in other areas of the lawn significant to any issue other than whether the plants were within the home’s curtilage. And he certainly did not suggest that the officers intended to mislead the court about where they saw straw on their initial visit to the Mells’ home.
The evidence that may be considered differs significantly in determining whether to strike part of the affidavit based upon an intrusion into the curtilage of the home as compared to reviewing the magistrate’s overall decision to issue the warrant. The curtilage issue was based on a claim that officers had violated the Mells’ Fourth Amendment rights in a warrantless entry of the home’s curtilage; the Mells argued that no information obtained during such an incursion could be considered. Once that issue was raised in a motion to suppress, the State had the burden of proving the lawfulness of the officers’ intrusion into what the Mells claimed was the home’s curtilage. See State v. Fisher, 283 Kan. 272, 284, 154 P.3d 455 (2007); State v. Anguiano, 37 Kan. App. 2d 202, 204-05, 151 P.3d 857 (2007). Thus, on that issue, the district court was free to consider all the evidence presented before it about what was within the home’s curtilage and to make the appropriate factual findings. In otherwise reviewing the magistrate’s issuance of the warrant, the district court — and our court — must base that review on the facts contained in the affidavit, excluding only those allegations that are materially false or contain material omissions, and only if the false statement or omission was made intentionally or in reckless disregard for the truth. See State v. Jensen, 259 Kan. 781, Syl. ¶ 1, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). The majority has gone well beyond the affidavit’s facts.
Second, the majority cites the statement of the district court that the magistrate “was misled in his decision because of the fact that *508information in the affidavit for search warrant, some of it was erroneous or misleading and some of it needs to be excised due to [the district judge’s] findings in this case.” The majority tries to tie the district judge’s statement directly to the majority’s conclusion that some statements in the affidavit were materially false or materially omitted. Nowhere in the district judge’s findings does he tie his statement to any of the claims discussed here by the majority. Rather, the things the district judge cited as misleading are matters that we have found were proper (since there was no incursion onto the home’s curtilage):
“[W]here these plants were, these were on the curtilage of the Mell property. In the affidavit Officer Howard indicated or it was implied that he located several plants in the yard of the residence. What he candidly testified to at the motion to suppress hearing was that he could see some vegetation but that he could not identify that vegetation as being marijuana plants from his vantage point. . . . Officer Howard advised the affiant that he had located several plants in the yard of the residence and believed they were marijuana plants. That is true, but it’s misleading because he didn’t know that until he intruded to the rear of the residence and examined the plants. I would find that intrusion exceeded the scope of a lawful intrusion because it was onto the curtilage of the property.” (Emphasis added.)
The district court’s finding that one statement was misleading because the magistrate was not told that the officer had intruded onto the home’s curtilage is certainly of no consequence since we have determined that the plants weren’t located in the curtilage. Further, even if the district judge had found some material misrepresentation or omission, the district court’s ruling didn’t even hint that Detective Procaccini intentionally misled the magistrate or acted in recWess disregard for the truth.
The majority also cites a statement in discussion of the curtilage issue from the State’s brief that “straw was spread throughout the Mells’ entire yard.” As I’ve already noted, the State had to address all the evidence when it discussed the curtilage issue, while our review on the issuance of the warrant is limited to the affidavit— unless there was a deliberate and material misrepresentation or omission, or one in reckless disregard for the truth. As to the evidence of the straw’s placement for purposes of attacking the affi*509davit, George Mell’s brief provided this summary of Officer Howard’s testimony:
“Upon cross-examination at the suppression hearing, Officer Howard indicated that he determined the marijuana plants were intentionally planted because he saw straw around the bottom of the plants, and the straw was not anywhere besides that area. He did indicate that there was some straw in the front by the sidewalk . . . [and] agreed there was some straw upon the ground, at the side of the house.”
Even as summarized by the defense, Officer Howard’s testimony did not directly contradict Detective Procaccini’s statement in the affidavit that Procaccini noticed straw in the area where the plants were growing, but not elsewhere on that side of the house. The differences are subtle and certainly do not suggest intentional misrepresentation. Thus, in order to find on this record that Procaccini intentionally misled the magistrate in the affidavit about what his observations of the straw’s placement, we would have to make an adverse credibility determination regarding the testimony of Howard or Procaccini or both.
It is not our job to make credibility determinations after a contested evidentiary hearing. We are an appellate court. We may not step in and find that Detective Procaccini deliberately misled the magistrate by omitting information about straw in other areas of the yard when the district court did not strike that paragraph from the affidavit — and that issue was squarely presented in the hearing. The most that an appellate court can do in this circumstance would be to remand for additional factual findings by the district court. But it seems unnecessary to do so here, given the testimony and the lack of any previous hint from the district judge that he found any of the officers’ testimony lacking in credibility.
Without making some adverse credibility findings about the testimony of one or both officers, there certainly is not sufficient evidence in the record to conclude that Detective Procaccini deliberately misled the magistrate. As noted earlier, Officer Howard testified that he noticed straw in the area of the marijuana plants only right around the plants themselves. That was consistent with Detective Procaccini’s sworn affidavit, which was presented to the magistrate. Thus, for purposes of our review of the magistrate’s *510decision in issuing the warrant, we must accept the statement in the affidavit on this point. The placement of straw specifically around the marijuana plants — but not in any immediately adjacent area — raises the inference of cultivation activity there.
For argument’s sake, though, let’s grant the majority’s claim that the district court intended to state a factual finding that straw was, in fact, throughout every part of the yard. This still is not cause to strike any portion of the affidavit without a finding by the district court that there was a deliberate misrepresentation or omission. But the majority claims that this supposed finding about the existence of straw throughout the yard disproves any possible inference of cultivation of the 11 marijuana plants. It does not. A person can certainly grow both grass and marijuana on the same property at the same time. Until the marijuana plants become taller than the nearby grass, both the straw and the grass would serve to distract attention from the newly sprouted marijuana plants, and the straw would also protect the plants as they grow. The straw’s placement over the area of the marijuana plants suggests active cultivation in that area — regardless of where else in the yard straw is placed. Active cultivation may be considered along with the rest of the evidence in determining probable cause for the issuance of a warrant.
We Cannot Negate the Inference of Illegal Activity from Marijuana Plants Growing, with the Owner’s Knowledge within Feet of the Back Porch of a City Residence bu Taking Judicial Notice that Marijuana Sometimes Grows Wild.
The majority’s final step in negating any inference of criminal activity from the 11 marijuana plants is its citation of two prior cases in which this court noted that marijuana grows wild in parts of Kansas. See State v. Jacob, 8 Kan. App. 2d 729, 731, 667 P.2d 397 (1983); State v. Brown, 2 Kan. App. 2d 379, 380-81, 579 P.2d 729 (1978). From this, the majority concludes that the 11 marijuana plants within feet of the Mells’ back porch provide no inference of cultivation by the Mells and thus no nexus to the Mells’ home. I am unable to find any authority to justify the court’s initial decision in Brown to “take judicial notice of the fact that marijuana *511grows wild throughout most of Kansas.” 2 Kan. App. 2d at 380-81. Perhaps Kansas was a different place in 1978. But K.S.A. 60-409 allows a court to take judicial notice only of “such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” Further, both Jacob and Brown involved farmsteads, not city dwellings. I certainly do not believe we can take judicial notice that marijuana is often found within a few feet of the back porch of most homes in Ottawa. Even if we were to grant that assumption, however, it would not negate the justification for a search warrant. As the court noted in Malin, the affidavit in support of a search warrant need not negate every innocent possibility for the evidence noted in it.
I would uphold the validity of the search warrant here for the Mells’ home.