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State v. Smith (5/2/2008) ap-2166

State v. Smith (5/2/2008) ap-2166

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Court of Appeals No. A-9733
Appellant, ) Trial Court No. 3KN-06-330 Cr
)
v. )
) O P I N I O N
NICK L. SMITH, )
)
Appellee. ) No 2166 May 2, 2008
)
          Appeal   from   the  Superior  Court,   Third
          Judicial  District, Kenai, Harold  M.  Brown,
          Judge.

          Appearances: Blair M. Christensen,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for  the  Appellant. Peter F. Mysing,  Kenai,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          The  superior  court granted Nick L. Smiths  motion  to
suppress  evidence  and  dismiss his indictment.   Smiths  motion
contended that the search warrant that led to his indictment  was
issued  without probable cause.  We conclude that  the  affidavit
supporting the search warrant application, on its face,  provided
probable  cause for issuing the search warrant.  Accordingly,  we
reverse  the  superior courts order suppressing the evidence  and
dismissing the indictment.  However, we conclude that  Smith  has
raised  a potential attack on the validity of the search  warrant
that  was  not  raised during the litigation of Smith  s  motion.
Smith can pursue that line of attack when the case returns to the
superior court for further proceedings on the indictment.

          Background facts and proceedings
          On  December  1, 2005, Investigator Kyle Young  of  the
Alaska  Bureau  of  Alcohol and Drug Enforcement  applied  for  a
search  warrant to search Smiths mobile home at Canova  Court  in
Nikiski  for a possible marijuana grow operation.  In support  of
his application, Young provided a thirteen-page affidavit.
             The  affidavit  supplied the following  information.
Young  drove by Smiths mobile home at Canova Court in Nikiski  on
November 28 and 29, 2005, and he noticed that there was  a  great
deal  of snow on the three vehicles parked at the residence.   On
December  1, 2005, Young and another trooper went to  the  mobile
home.  As the two investigators approached the mobile home,  they
smelled a moderate odor of growing marijuana coming from inside.
          The  investigators knocked, but no one answered.  Young
noticed  that  the front door of the mobile home  was  padlocked.
There was only one set of tire tracks in the driveway and one set
of footprints that led from the driveway to the door.  There were
no  footprints in the snow around the mobile home,  vehicles,  or
outbuildings.   The windows that could be viewed from  the  front
porch and driveway were covered up.
          Later  that  day,  Young  contacted  a  neighbor,  Bill
Erdahl,  who  identified  Smith as the  owner  of  the  property.
Erdahl told Young that he believed that Smith was in Mexico.   He
also  said that, on most nights, someone would stop in at  Smiths
residence and then leave again.
          Young  searched Erdahls residence with his  consent  to
eliminate  it as a possible source of the marijuana odor.   Young
also  noted  that the only other residence nearby was unoccupied;
the  driveway  had  not been cleared of snow and  there  were  no
footprints going to or from the residence.
          Young  summarized his observations of  Smiths  property
and noted that
          [b]ased  upon [his] observations of the  lack
          of activity, no footprints in the snow around
          the  structure, vehicles or outbuildings,  no
          vehicles  recently parked  overnight  at  the
          residence, the padlock on the front door  and
          the  information  provided by  the  neighbor,
          [he] believe[d] that the residence [was]  not
          currently  occupied  and  [was]  perhaps  not
          being  used as a dwelling, but only  for  the
          purpose of cultivating marijuana.
          Young  indicated that a records check showed that Smith
had  no  drug  convictions and did not have a  medical  marijuana
certificate.
          Young described his qualifications and training in drug
investigations,  the  characteristics  of  a  typical  commercial
marijuana grow, and his personal experience with grows.  He  also
included statistical information.  The information included  what
Young  described  as  his units success  rate  and  his  personal
success rate in smelling commercial amounts of growing marijuana.
Young  noted  that,  based on his experience in  smelling  felony
level  marijuana  grow  operations, he believed  that  there  was
sufficient marijuana growing at Smiths mobile home to  support  a
felony charge.
          Magistrate   Jerry   D.   Anderson   approved    Youngs
application  for a search warrant.  When the police executed  the
search  warrant  at  Smiths mobile home, they seized  ninety-four
marijuana plants that, when processed, amounted to 9.22 pounds of
marijuana.  They also seized growing equipment and one-sixth of a
pound of processed marijuana.
          On March 3, 2006, the grand jury indicted Smith on four
counts   of   fourth-degree  misconduct  involving  a  controlled
substance.1   Smith moved to suppress evidence  and  dismiss  the
indictment  on  the  basis  that the search  warrant  was  issued
without  probable  cause.  Relying on State  v.  Crocker,2  Smith
argued  that  there was no probable cause supporting  the  search
warrant  because Young had observed no specific facts that  would
justify  a  conclusion  that the smell  of  marijuana  that  [he]
perceiv[ed]  was  in  excess  of the  constitutionally  protected
amount.   Smith  argued that Youngs assertions in  the  affidavit
were   reduced  to  his  observation  of  a  moderate  smell   of
cultivating marijuana coming from a residence whose owner was  on
vacation in Mexico.
          Smith  contended  that Youngs factual allegations  were
less  supportive of a finding of probable cause than the evidence
provided  to the magistrate in Crocker because in that case,  the
police smelled a strong odor of marijuana and found that Crockers
electricity  usage  was higher than normal.   Smith  pointed  out
that,  in  his  case,  the police made no  effort  to  check  the
electrical  consumption  for his mobile  home  and  relied  on  a
moderate  smell of marijuana to establish probable cause.   Smith
concluded  that, if the information in the officers affidavit  in
Crocker was not sufficient to establish probable cause, then  the
affidavit in his case was insufficient.
          The State pointed out that Youngs affidavit showed that
he  was  well-trained  and  experienced  in  smelling  commercial
amounts of growing marijuana.  Young swore in his affidavit  that
smelling  cultivating marijuana in the air outside a building  is
indicative of a commercial grow.  The affidavit stated  that,  if
an  officer  can smell cultivating marijuana on the outside  air,
the  amount  being cultivated is likely in excess of four  ounces
because  marijuana plants must be present in a sufficient  number
or  mass  for  the odor to be detectable outside of a  residence.
Youngs affidavit further explained that a personal-use grow  does
not  typically  involve  a  venting  system,  which  is  normally
responsible  for  conducting the smell to the outside  air.   The
State  also pointed out that Young stated in his affidavit  that,
in  all  of  his  experience, he has never  smelled  packaged  or
personal-use  marijuana stored in someones house,  and  that  one
marijuana plant grown indoors in Alaska yields approximately  two
to three ounces on average.
          The  State  further pointed out that  Youngs  affidavit
included  an  analysis of statistical information from  his  unit
that  showed that, when an officer smells the odor of cultivating
          marijuana outside a building, ninety-six percent of the time it
is  a felony commercial grow operation.  Judge Brown rejected the
States arguments and granted Smiths motion for the reasons stated
by  Defendant  in  his memorandum and reply  in  support  of  his
motion to suppress.

          Discussion
          This  court  reviews  a  magistrates  determination  of
sufficiency  of  the  allegations of facts in  a  search  warrant
application  for  an abuse of discretion.3  Only the  information
brought  to the magistrate's attention may be considered by  this
court,4  and  it must be considered in a reasonable  and  common-
sense manner.5
          Probable  cause to issue a search warrant  exists  when
reliable information is set forth in sufficient detail to warrant
a  reasonably prudent [person] in believing that a crime has been
or  was being committed.6  In Noy v. State,7 this court relied on
Ravin  v. State8 and held that adults may possess, in their  home
and  for  personal use, less than four ounces of  marijuana.   In
State v. Crocker,9 this court held that a judicial officer should
not  issue  a  warrant to search a persons home for  evidence  of
marijuana   possession  unless  the  States  warrant  application
establishes probable cause to believe that the persons possession
of  marijuana  exceeds  the  scope  of  the  possession  that  is
constitutionally protected under Ravin.10
          The  State  argues  that  Youngs affidavit  established
probable cause to believe that Smiths mobile home contained  more
than  four  ounces  of  marijuana, and  that  Smith  was  growing
marijuana  for  commercial  use.  The State  points  to  specific
sections  in Youngs affidavit which asserted that: eighty-one  of
the  marijuana grows seized by Youngs unit from 2000 to 2004 were
discovered by officers smelling growing marijuana, and in ninety-
six  percent of those seizures, a felony level grow operation was
discovered; a budding marijuana plant produces the strongest odor
and,  usually, the larger the buds, the stronger the  smell;  the
ability  to  smell  the odor of cultivating marijuana  outside  a
building is, by itself, indicative of a commercial grow operation
because  it  typically  indicates the use  of  an  installed  air
venting  system; and Youngs unit rarely found personal  use  grow
operations.
          Smith  argues  that Crocker stands for the  proposition
that  the assertion of an odor of marijuana without more evidence
indicating  criminality cannot provide sufficient probable  cause
to   uphold  issuance  of  the  search  warrant,  and  that   the
allegations   of  illegality  in  this  case  fall  below   those
allegations  held  to be insufficient in Crocker.   In  addition,
Smith  now  argues  that the statistics in Youngs  affidavit  are
unreliable  because the data consists only of those instances  in
which  the  police ultimately seized the marijuana they  smelled.
Smith points out that the affidavit does not specify whether  and
how  many times Youngs unit smelled cultivating marijuana but did
not seize it because the grows were not commercial grows.
            In  Crocker, this court ruled that the search warrant
application  in  that  case  demonstrated  probable  cause   that
marijuana  was  being  grown  in the  defendants  home,  but  the
          application did not provide any information that the defendant
was   cultivating   more  than  four  ounces.11    Although   the
application  asserted  that the smell of  growing  marijuana  was
strong,  this  court  noted  that the  application  contained  no
assertion  that the strength of the smell gave the  officers  any
indication  of  the  amount of marijuana that  might  be  growing
inside, or that a correlation could be drawn between the strength
of  the  odor  of growing marijuana and the amount  of  marijuana
being  grown.12   Without more information than a  strong  smell,
this  court  held  that there was nothing to  indicate  that  the
defendants possession of marijuana violated Ravin and Noy.13
          The  central question here is whether the affidavit  in
support   of  the  search  warrant  application  shows   a   fair
probability that Smiths mobile home contained evidence that Smith
was conducting a commercial marijuana growing operation.14
          Youngs  affidavit provided information that linked  his
ability  to smell marijuana from the driveway of Smiths  property
to  a  probability that the mobile home  contained evidence of  a
commercial grow of marijuana.  As the affidavit stated, Young was
able  to smell the odor associated with growing marijuana outside
Smiths  mobile  home.   Youngs experience,  corroborated  by  the
statistical analysis of previous cases with his unit,  was  that,
in  all  likelihood, there was a commercial quantity of marijuana
inside  Smiths  mobile home because of the obvious odor  outside.
This information remedied the deficiency found in Crocker.  Thus,
we  conclude that Youngs affidavit established probable cause  to
believe  that evidence of commercial marijuana cultivation  would
be found in Smiths trailer.  Accordingly, we reverse the superior
courts  order granting the motion to suppress and dismissing  the
indictment.
          We  now address Smiths argument regarding the potential
flaw  in  the statistical analysis included in Youngs  affidavit.
Smith  argues  that  additional information could  undermine  the
persuasive force of the assertions in Youngs affidavit.  But this
issue was not litigated in the superior court.  Perhaps there  is
additional information about Youngs units discovery of  marijuana
grows  that  would  undercut probable  cause.   This  possibility
presents  a  situation similar to that addressed by  our  supreme
court in State v. Malkin.15  If Youngs summary of the statistical
information  about  his  units experience  with  marijuana  grows
contained material misstatements of fact or material omissions of
fact, Malkin provides the framework for evaluating that claim.16
          [O]nce   a   misstatement  or   omission   is
          established,  the burden of proving  that  it
          was  neither reckless nor intentional  shifts
          to  the state.  A failure to meet this burden
          will  vitiate the warrant if the misstatement
          or omission is material, that is, if deletion
          of   the   misstated  information   from   or
          inclusion of the omitted information  in  the
          original  affidavit would  have  precluded  a
          finding  of  probable cause.  A  non-material
          omission   or  misstatement   one  on   which
          probable   cause  does  not  hinge   requires
          suppression  only  when  the  court  finds  a
          deliberate    attempt   to    mislead    [the
          magistrate].[17]
          However, Smith has not litigated this issue because the
superior  court  granted  his motion  without  considering  these
potential  issues.   Accordingly,  Smith  will  be  entitled   to
litigate these claims when the case returns to the superior court
for further proceedings on the indictment.

          Conclusion
          The order of the superior court granting the motion  to
suppress and dismiss the indictment is REVERSED.



                                                       
_______________________________
  1     AS    11.71.040(a)(2);    AS    11.71.040(a)(3)(F);    AS
11.71.040(a)(3)(G); and AS 11.71.040(a)(5).

  2 97 P.3d 93 (Alaska App. 2004).

3 State v. Bianchi, 761 P.2d 127, 130 (Alaska App. 1988).

  4 State v. Jones, 706 P.2d 317, 326 (Alaska 1985).

  5 State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989).

  6  Van  Buren v. State, 823 P.2d 1258, 1261 (Alaska App.  1992)
(quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).

  7  83  P.3d 538 (Alaska App. 2003), on rehearing, 83  P.3d  545
(Alaska App. 2003).

  8 537 P.2d 494 (Alaska 1975).

  9 97 P.3d 93 (Alaska App. 2004).

  10Id. at 94 (citing Ravin v. State, 537 P.2d at 494).

11Id. at 97-98.

  12Id. at 97.

  13Id.

  14Id. at 98.

  15722 P.2d 943 (Alaska 1986).

  16Id. at 946.

  17Lewis  v.  State,  862  P.2d  181,  186  (Alaska  App.  1993)
(quoting Malkin, 722 P.2d at 946 n.6) (footnotes omitted).

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