Appeal from Superior Court of King County. Docket No: 93-1-07321-2. Date filed: 10/10/94. Judge signing: Hon. Faith Enyeart Ireland.
PER CURIAM. In this consolidated appeal, Dennis Detamore and Michael Heminger challenge their convictions for possession of marijuana with intent to deliver. They contend that the affidavits submitted in support of search warrants were insufficient to establish probable cause. Because independent police investigation was sufficient to overcome any deficiency in the confidential informant's veracity, we affirm.
On April 28, 1993, police officers executed search warrants at residences in SeaTac and in Kent. In each case, the officers recovered evidence of a marijuana growing operation. Appellants Dennis Detamore and Michael Heminger were subsequently charged with possession of marijuana with intent to deliver.
The search warrant for Detamore's residence was based on the following circumstances, set forth in an affidavit prepared by King County Police Officer Jon Mattsen. On April 9, 1993, Officer Mattsen was contacted by an anonymous informant who stated that Dennis Detamore was living in a house at 3312 166th Street South and was growing approximately 120 marijuana plants in the ground-floor basement area. According to the informant, who had been in the house the previous day, the plants were being grown under 3 or 4 lights and all of the basement windows were covered. Tammy Jo Birdsall also lived in the residence with her 2 children.
During the course of subsequent contacts, the informant provided specific information to Officer Mattsen about the location of the growing operation in Detamore's residence and about Detamore's growing techniques, including the fact that he forced his plants to "bud" faster by keeping the lights on continuously. The informant stated that Detamore was unable to work as an ironworker because he could not pass a drug test.
The informant told Officer Mattsen that Detamore was an "underling" of Michael Heminger, who lived near the Playmore Tavern in Maple Valley. The informant, who had last observed a marijuana growing operation in Heminger's residence during the second week of March 1993, indicated that some 500 marijuana plants were growing in the house. The informant had also seen Heminger bring marijuana to Detamore's residence for purposes of distribution. According to the informant, Detamore and Heminger spent most nights tending to the plants in their residences and spent days tending to plants in an outside location.
The informant, who eventually revealed his or her identity to Officer Mattsen, had known both Detamore and Heminger for more than 5 years and had purchased marijuana from both in the past. The informant wished to remain anonymous out of fear of retaliation and agreed to provide the information because of concern for the children living in the Detamore residence. Officer Mattsen averred that the informant was not being paid for the information and was not "working off" any outstanding charges. The informant also demonstrated knowledge of marijuana pricing, packaging, and use, as well as knowledge of cultivation techniques, and agreed to appear in an in-camera hearing if necessary.
On April 13, 1993, Officer Mattsen was contacted by Detective Scott Pierson of the DEA Taskforce. Det. Pierson had been contacted by an unknown individual and advised of essentially the same information. Officer Mattsen said that he was working on the case, and the two agreed to work together. Det. Pierson had already requested the power records for Detamore and Heminger through a "Federal Administrative Subpoena."
On April 14, 1993, Officer Mattsen reviewed the power records supplied by Det. Pierson. The records indicated that Detamore's power consumption from January through March 1993 was 4 times that of the prior customer during the previous year. Heminger's records indicated that he had used 3 times as much power in February 1993 as in the previous year, even though the house had gas heat.
On April 16, 1993, DEA agents trained a thermal imager on both the Heminger and Detamore residences. The results of the Heminger inspection were inconclusive. The imager indicated a "large heat source" emanating from the lower level of the Detamore residence.
Through subsequent investigation, Officer Mattsen confirmed that Detamore and Heminger were living in the houses identified by the informant. Officer Mattsen and DEA agents frequently observed Detamore's vehicle parked at Heminger's residence and Heminger's vehicle parked at Detamore's residence for extended periods of time, from 4 to 12 hours. Neither Detamore nor Heminger was seen traveling to an employment location. Officers also observed condensation on the windows of both residences, which, according to Officer Mattsen, could be consistent with an indoor growing operation. A union employee told Officer Mattsen that Detamore had worked only short periods of time as an ironworker in recent months because he had consistently failed required drug tests.
Immediately after executing the search warrant at the Detamore residence, Officer Mattsen sought a search warrant for the Heminger residence. In addition to incorporating the Detamore affidavit, the Heminger affidavit recited that officers had recovered 140 marijuana plants in various stages of growth from the Detamore residence. The plants were growing under 3 main lights and in the location described by the confidential informant.
Following a suppression hearing, the trial court rejected defense motions to reveal the identity of the confidential informant, a ruling that is not challenged on appeal. The court then concluded that both prongs of the Aguilar-Spinelli test had been established as to the information provided by the confidential informant, even without consideration of the thermal imager evidence. See State v. Young, 123 Wash. 2d 173, 867 P.2d 593 (1994) (warrantless infrared surveillance of home violates constitutional right to privacy). The trial court also relied on the fact that the officers' investigation had corroborated not only personal details about the defendants and their interaction, but had also revealed Detamore's failure of drug tests, condensation on the windows of the residences, and increased electrical usage.
After denying the motions to suppress, the trial court found the defendants guilty as charged on stipulated facts.
On appeal, Detamore and Heminger contend that the search warrants were invalid because the supporting affidavits failed to support a determination of probable cause. An affidavit based on information from a confidential informant must set forth facts from which a magistrate can independently determine both the reliability of the manner in which the informant acquired information (basis of knowledge) and the credibility of the informant (veracity). State v. Jackson, 102 Wash. 2d 432, 688 P.2d 136 (1984) (citing Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584) (1969) and Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964)). The affidavit supporting a search warrant should be read in a common-sense, practical manner, not hypertechnically. State v. Garcia, 63 Wash. App. 868, 871, 824 P.2d 1220 (1992). ...