*1 9, 1987, September Argued and affirmed December reconsideration submitted 1, 1988 (305 274) February petition Or denied for review denied March OREGON, STATE OF Respondent, HOWE,
JAY SCOTT Appellant. A42026)
(CR86-4-73; CA Nylander, Bend, Nick North argued cause and filed the brief for appellant. Chute, General, Attorney Salem,
Christine Assistant the cause for her argued respondent. With on the brief were Frohnmayer, Attorney General, Dave Linder, L. Virginia General, Solicitor Salem. Buttler, Presiding
Before Judge, Warren Rossman, Judges.
ROSSMAN, J.
Warren, J., dissenting.
ROSSMAN, J. was convicted unlawful manufacture of controlled substance violation ORS 475.992. He moved suppress pursuant evidence seized to a search warrant and in support also to controvert the affidavit made of the war- motions, rant. The trial court denied both and defendant appeals. primary The issue is whether contained magistrate properly sufficient facts from which a deter- mine that there cause to believe that evidence of would be found at defendant’s residence. We find the affidavit sufficient and affirm.1 portions Relevant of the oral affidavit state: March, er, 10th, 1985, thing May Deputy “The whole started on Sheriff Randy personally Brookings Probasco advised me That the complaint suspect Police received a theft driving Toyota pickup bearing Oregon from Brookside Florist A as follows. just shop license KUH 159 left the florist soil, each,
with 20 sacks of one and one-half cubic feet and 300 paying stopped Brookings without for the material. Probasco the vehicle with the Brookings. only person registered Police in the vehicle was the owner of vehicle, Howe, Scott of 33050 Hillside Acres Road. Howe advised officers simply forgot pay purchase he shop for the and was allowed to return to the florist complaint pursued. and no criminal Howe did tell Probasco that he was going into the tomato business. And Probasco further advised that Howe was *3 extremely during noted to be nervous his contact. being becoming “Since notified of Howe’s intention in 1985 of a tomato personally periodically patrolled by farmer I have Howe’s residence at Hillside following. Acres Road and noted the May present plant “From 1985 to the I never date have seen a tomato property. any pots commonly Howe’s There have never been or containers used plants potting property. apparent landscaping observed on Howe’s There is no any attempt yard garden vegetable garden or to maintain a or a flower or a on this property. any And there has never been evidence of a tomato business operated property. on the recently neighbors “I contacted some of the around the hillside and acres road Jay living learned that Howe and the man he was with at the time excavated under portion 1984, during the east of the residence the winter of and a cinder block subject basement was constructed to create full a basement. The was later identi- by Pederson, myself Gregory 4-15-49, fied as Dennis date of birth that lived with Jay helped just Howe for several months and Howe construct that basement I spoke talking neighbors they any of. After with the in refused to be named official proceedings glad cooperate giving but were to as far as information. So I did a computer Gregory probation check of Pederson and it revealed that he was on and apparently driving still is State Corrections Division in Tillamook for under February year the influence. On 19th of this I contacted Pederson’s Probation Officer, a Miss Jane Workman at the Tillamook branch. Workman sent me a photograph Sgt. of Pederson and told me contact Tom Groat of the Lincoln City Department. February Sgt. by Police On the 24th of did contact Groat phone, following. very Greg and Groat advised me of the He was familiar with personally investigated marijuana grow opera- Pederson and that Groat an indoor (1) contained contends of a cause for issuance support probable facts to insufficient considering so-called (2) erred the trial court and warrant was two arrests years ago involved in. There that Pederson was two tion about charged. investigation; Groat Pederson was not arrested however made connecting to the Pederson was clear evidence advised that there Sgt. light equipment. further said that Pederson plants grow Groat netted 38 and drug community City as a by in Lincoln area enforcement the law is well known history computerized also reflects an also- Greg criminal Pederson’s abuser. computerized Howe, Jay 1-20 of and his date of birth name of Scott known-as September history in Tillamook on the State Police reflects an arrest criminal driving Pederson at that time the influence which under 2nd of 1985 for Jay and date of birth. Howe’s name Scott Curry County and on Courthouse records' at “I checked the assessor’s plan BD, records that the floor tax lot and found 14 31 account number 35 portion basement, type, daylight of the resi- partial under the west a a indicate Acres, constructed was no record of a basement Hillside and there dence at 33050 portion residence. under the east year February by police this 28th of officers from “Random checks First, subject a as follows. present obvious details indicate that that two date Jay Toyota pickup 33050 Hillside Scott Howe at lives a new silver that owns pickup a Acres, as Keith Allen Mans with is identified of that silver and the owner Further, computer check of Keith Mans’ 1-18-56. date of birth of history which reflect Oregon number of OR5951343 state identification shows an County Josephine Office for Sheriffs of 1981 an arrest in November Secondly, substance, marijuana. manufacturing over one ounce a controlled rarely Acres. at 33050 Hillside ever have visitor’s [sic] Mans that Howe and Welsh, Deputy Curry County year, Sheriff April of this John “On 8th following on the 6th of Hillside Acres at 33050 he observed advised me that pickup area. April was backed into the basement Mans’ silver of 86. Keith line, several, white Deputy one row above the bed pickup Welsh described it as pounds appeared lettering. to be about 40 to plastic The sacks with red sacks Deputy steer manure. they appeared soil or Welsh to either size and pickup he had ever seen the first time that that this was the Welsh further said parked facing the generally parking that it is was area and that backed into residence, morning and that it checked the that Welsh gone. bags place were parked the white in the same year person- past Acres over the “During periodic Hillside checks of 33050 time. burning utilized from time to ally heater had been wood noticed that a have , chimney coming the residence in the roof of from a smoke I’ve often noticed periods. during the colder Company Coos-Curry and learned this afternoon Electric “I contacted provided Hillside Acres start- Jay service as 33050 the electric Howe is address, assigned Howe, 23rd, account ing at that of 1982. on December wrapped with an insulat- 7-188-050, water tank was further that a hot number program Coos-Curry energy and the through conservation ing in 1983 blanket *4 a sheet that is reflected on consumption March of 1982 power that address since piece Attorney I of evidence believe. has as a District <<‡ * % * * power usage owner, the 1982roll showed previous reflected on which is “The hours, one and there’s 480 kilowatt from...ranges 1900 down to from...of April high usage
unexplained of 3490.
599 “corrected” evidence at hearing on the motion to contro- vert. We first address the issue raised
. you...have you Now...are “[DISTRICT checked to ATTORNEY]: familiarize yourself say family your size...what, you your with what like a of and wife and two children. [*] [*] * * usage my home, my family, “METCALF: The normal three bedroom per day period.
between 600 and 1000 kilowatt hours Okay, range running “[DISTRICT and what is Mr. Howe ATTORNEY]: there for couple years? the last Generally high to, up “METCALF: per from the clear to 4000 kilowatt hours month. «* * * * * “Okay, marijuana growers guide, did a check on the...of the authored Mel Rosenthal, page Frank growers marijuana and Ed and that revealed that indoor marijuana plants should set automatic timers to allow between 16 and 18 light per day. my experience hours of training artificial Based on and marijuana growers guide information is known. First that the is the most common guide by marijuana growers. reference growing operations Most commercial indoor grow lights. Curry utilize 1000watt metal hallide Coos Electric lights officials advised me per that the 1000 watt will consume 1 kilowatt hour grow operation utilizing hour while in use. An lights indoor 4 1000 watt 17 hours per day day period. would consume 2040 kilowatt hours in a 30 Based on the previous including energy information submitted conservation meas- ures...wrapped hot water tank and installation and utilization of wood heat in the previous power usage, residence and tenants records which reflect an increase of usage by Jay per Howe of between 1500 and 2500 kilowatt hours month for the residence, neighbors, police officers, same records, and information from tax shop, florist marijuana. Jay believe that Howe’s residence is utilized to cultivate profile Howe fits an obvious for an indoor cultivator rarely any based on the He has no or visitors at the residence. He suspected marijuana associates with known and cultivators. He has an enclosed production marijuana. room with no possessed windows suitable for He mate- commonly marijuana operations, rials including used for soil, pots, the 300 potting recently sacks of and most several sacks of some unknown material at And, unexplained power consumption that residence. an excessive at the resi- usage dence. It should be noted that in 1983 remained excessive throughout year. However, power consumption dropped in 1985the from 1500 per during drop to 3000 kilowatt hours month the summer months. That would be moving grow operation consistent with the from inside to outside for the practice moving summer months. The indoors to outdoors is common for some unexplained report addition, cultivators. The addition, failure to a taxable the basement county practice persons assessor. That’s a common involved in activity government inspection criminal ity. where would disclose that criminal activ- unexplained possession quantities And the growing supplies, of commercial again the 300 soiL.he told the inwas the tomato residence, business and there is no indication of a tomato business at that finally ongoing supported by supplies the evidence of at the residence by deputy 6th, ‘86, April power seen Welsh on the and the continued excessive usage.”
600
contends,
found,
He
and the trial court
to controvert.
motion
to
is inaccurate as
one fact: Defendant was
that the affidavit
pots
from
hauling potting
of the truck
soil
not the driver
stopped by police
suspicion
on
of theft.
the florist that was
roommate,
Rather,
who used
the driver was defendant’s
registered
stopped.
name
The truck was
to
defendant’s
when
judge
trial
that the misinforma-
agree with the
defendant. We
inaccuracy;
related
the reason for
a material
it
to
tion was not
inac-
the
further. Even when that
investigating
situation
deleted,
sufficient to
curacy is
the affidavit would be
establish
for the issuance of
search warrant.
probable cause
however, that,
or
argues,
with without the
function,
inaccuracy,
is
Our
insufficient.
insufficiency argument,
is
determine whether
faced with an
conclude, on the facts and circum-
magistrate
a neutral
affidavit,
was probable
set forth in the
there
stances
likely
items2
found on
cause to believe that seizable
were
404,
Villigran,
premises
to be searched. See State
(2).
(1983);
133.555(1),
In State v.
408, 657 P2d
ORS
375,
the court stated:
Or
Anspach, 298
upon
requirement
that the facts
“The
cause
means
person
premised must lead a reasonable
which the warrant is
probably
things
be found
to believe that seizable
will
be searched.”
Random checks officers during the months just before issuance of the affidavit indicate that defendant and his roommate rarely addition, had visitors. In defendant extraordinarily consumed an high electricity.3 amount of In experience affiant’s training, unexplained excessive power consumption indicates the use of 1000 watt metal hal- grow lide lights, used in most commercial marijuana growing operations. The affiant consulted a grower’s guide, which plants recommends that marijuana receive day. between and 18 hours of light per artificial electric company’s records show that defendant consumed an average month, per compared 2774 kwh as average to an per by 1390 kwh month previous used tenants of the same usage residence. Power high reached as as 4060 kwh one month. individually,
Viewed observations in the recorded affidavit are consistent with lawful but we conclude Christen/Hankins, 774, 780, In State v. App 720 P2d we recognized that: comparison electricity consumption usage “the with normal residential is misleading helpful probable not and is ato determination of cause. It indicates electricity normally purposes far excess of residential premises, objective on the which consumed was not accounted for legal enterprise.” evidence of a collectively
facts, in a man-
that the considered common sense
person ner, lead a reasonable to believe that evidence would
a found at defendant’s residence. crime would be
argues hand akin that the case at
supra inves- 3,n where an officer’s Christen/Hankins, State v.
extraordinarily high payment tigation bills, electric revealed
crisp dollar one of the defen- in six new one-hundred bills
only occasionally, that he worked dants who indicated
system, sprinklers, drainage presence hoses, a and an soil
intermittently, the defendants’ exhaust fan which turned comment that
they drainage, covered windows excellent
products business, which the and no evidence wood
operate. held claimed We those activities defendants sufficient to indicate
presence
to a officer of an trained
marijuana operation illegal growing but insufficient alone to
probable However, those activities were establish cause.
tips marijuana grow- large that a considered with informants’ ing
operation premises searched, to be be found on the
probable though cause, even the basis that there was we held
knowledge had not been established. of the informants’
possession Nothing linked the in Christen/Hankins
premises manufacturing marijuana to to be searched or except
tips. Here, the affidavit states the informants’ prior premises involve- to be searched had had residents of operations. marijuana growing This infor- ment with indoor together mation, with the other facts recited
presence illegal of an indicated to a trained officer which *7 growing operation, probable constitute cause to
operation marijuana growing would evidence believe that
at residence. There is no error. be found defendant’s
Affirmed. dissenting.
WARREN, J., disagree majority’s with the conclusion Because
probable information in the affidavit constituted that the
cause, dissent.
suspicious, activity
Although defendant’s
with the affidavit were consistent recorded in observations probable activity cause to issue a constitute and did not lawful persons who That associates search warrant.
603 could, in past have manufactured drugs some circum- stances, 2 LaFave, constitute cause. See Search and Seizure, 3.6(c), (1987). cases, however, The illustrative § immediately present prior activity involve criminal of a associates, suspicion which raised the level of LaFave, regard cause with supra, defendant. § 3.6(c), Similarly, 49-58. in State Christen/Hankins, tip provided informants’ infor- Here, mation of present activity. criminal one of defendant’s been associates had arrested for manufacturing more than an ounce of 1981. Another as a drug “known abuser” and had been involved an indoor marijuana grow- years ing making two before the of the affidavit. He was not or charged. arrested No inference that defendant was engaged present criminal can be from drawn his possible associates’ past conduct, even taken together with other facts in this case. There was not a sufficient basis for issuing warrant search defendant’s residence.
I would reverse.