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Frank Cikutovich:
Cases
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[U] State v. Weitz, No. 20273-9-III (Wash.App.Div.3 05/30/2002)
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division
Three Panel One |
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No. 20273-9-III |
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2002.WA.0000812 |
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May 30, 2002 |
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STATE OF WASHINGTON, RESPONDENT,
v.
JOHN J. WEITZ, APPELLANT. |
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Appeal from Superior Court of Spokane County Docket No: 011000633
Judgment or order under review Date filed: 05/17/2001 Judge signing:
Hon. Richard J. Schroeder |
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Counsel for Appellant(s) Frank L.
Cikutovich Stiley & Cikutovich
1408 W Broadway Spokane, WA 99201 |
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Counsel for Respondent(s) Kevin M. Korsmo Spokane County Prosecutor's
Office W. 1100 Mallon Spokane, WA 99260 |
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Andrew J. Metts Iii Deputy Prosecuting Attorney 1100 W Mallon
Ave Spokane, WA 99260-0270 |
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The opinion of the court was delivered by: Sweeney, J. |
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Concurring: Stephen M. Brown, Kenneth H Kato |
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UNPUBLISHED OPINION |
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Spokane police smelled marijuana outside John Weitz's house
and determined his power usage was abnormally high. They obtained
a warrant to search his home. They discovered a marijuana grow operation
during the search. The State charged Mr. Weitz with manufacturing
a controlled substance. He moved to suppress, based largely on the
Medical Use of Marijuana Act, chapter 69.51A RCW; it decriminalizes
some production of marijuana. The trial court denied the motion
to suppress, and Mr. Weitz was convicted after a bench trial on
stipulated facts. He appeals the denial of his motion to suppress.
Mr. Weitz does not assign error to any of the factual findings.
They are then verities on appeal. State v. Schmeck, 98 Wn. App.
647, 650-51, 990 P.2d 472 (1999). |
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The question here is whether the sight or smell of growing marijuana
can be the basis for probable cause since some production may be
legal under the Medical Use of Marijuana Act. |
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We begin with the well-settled rule that a judge's determination
of probable cause is entitled to 'great deference.' State v. Cole,
128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Klinger, 96 Wn.
App. 619, 623-24, 980 P.2d 282 (1999). Our review then is for abuse
of discretion. Cole, 128 Wn.2d at 286; Klinger, 96 Wn. App. at 624. |
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'Probable cause exists when an affidavit supporting a search
warrant sets forth facts sufficient for a reasonable person to conclude
the defendant probably is involved in criminal activity.' Cole,
128 Wn.2d at 286 (emphasis added). Probable cause does not require
'proof of criminal activity,' but merely a belief that criminal
activity may have occurred. State v. Patterson, 83 Wn.2d 49, 52,
515 P.2d 496 (1973); State v. Hansen, 42 Wn. App. 755, 760, 714
P.2d 309 (1986) ('The likelihood of criminal activity, not a prima
facie showing of it, determines whether a search warrant should
be issued.'), aff'd, 107 Wn.2d 331, 728 P.2d 593 (1986). |
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Probable cause can be, and often is, based at least in part
on otherwise legal activity. See Cole, 128 Wn.2d at 286 (facts that
when viewed in isolation do not constitute probable cause, may be
viewed together and with other facts to establish probable cause);
State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992) ('{w}hile
the details may be innocuous when viewed singly, together they give
rise to probable cause'). There is no requirement that an officer
have actual proof of criminal activity, only proof that criminal
activity is probably occurring. Patterson, 83 Wn.2d at 52; Hansen,
42 Wn. App. at 760. |
| [18] |
Here, police smelled marijuana and determined that Mr. Weitz's
power usage was abnormally high. Clerk's Papers at 9. An application
for a search warrant is viewed in light of common sense and all
doubts are resolved in favor of the warrant's validity. Cole, 128
Wn.2d at 286; State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994);
Klinger, 96 Wn. App. at 624. The issuing judge is allowed to draw
reasonable inferences from the facts and circumstances found in
the affidavit. State v. Sterling, 43 Wn. App. 846, 852, 719 P.2d
1357 (1986). |
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The facts before the issuing judge were then sufficient to establish
probable cause. Patterson, 83 Wn.2d at 52; Hansen, 42 Wn. App. at
760. Some marijuana may now be grown legally. But the practice has
not become so wide spread that traditional indicia of marijuana
cultivation can be said to be 'not criminal activity.' The magistrate's
exercise of discretion here is well grounded. |
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The next question is whether the affidavit in support of the
search warrant is adequate given the failure to connect Mr. Weitz
to the smell of marijuana and the failure to show that the officer
was qualified to detect the odor. |
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Unfortunately, the affidavit in support of the search warrant
is not in the record. And so there is nothing for us to review.
State v. Ames, 89 Wn. App. 702, 708 & n.7, 950 P.2d 514 (1998).
Mr. Weitz could be basing his challenge on the Clerk's Papers at
pages 2-3--'Statement of Investigating Officer Affidavit of Facts.'
If so, this report is not the affidavit in support of the search
warrant. It was in fact created after the warrant was executed. |
| [22] |
In sum, neither of Mr. Weitz's challenges to the affidavit in
support of the search warrant can be reviewed because the affidavit
is not part of the record. Ames, 89 Wn. App. at 708 & n.7. |
| [23] |
The decision of the trial court is affirmed. |
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A majority of the panel has determined that this opinion will
not be printed in the Washington Appellate Reports but it will be
filed for public record pursuant to RCW 2.06.040. |
| [25] |
Sweeney, J. |
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WE CONCUR: |
| [27] |
Brown, C.J. |
| [28] |
Kato, J. |
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