Appeal from Superior Court of Ferry County. Docket No: 94-1-00027-6. Date filed: 06/13/95. Judge signing: Hon. Larry M. Kristianson.
Petition for Review Denied September 3, 1997,
Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, Frank L. Kurtz.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. To support a search warrant, an affidavit must show "sufficient facts from which a reasonable person could conclude there is a probability that the persons to be subjected to search are involved in the criminal activity." State v. Carter, 79 Wash. App. 154, 158, 901 P.2d 335 (1995). There must "be a sufficient nexus between the targets of the search and the suspected criminal activity." Id. at 158. A forest worker checking for fire danger stumbled onto a marijuana grow about 150 yards from Lee Guertin's and his son Harvey Guertin's house. Police supported their application for a search warrant with an affidavit which included the following assertions: (1) the Guertins' residence was closest to the grow area, the next closest residence was a half mile away; (2) the best access to the patch was from the Guertins' property; (3) Lee Guertin had a previous conviction for possession of marijuana; (4) two men matching the description of the Guertins "approached" the grow area; and (5) individuals maintaining growing operations often use a residence to process the marijuana.
The Guertins moved to suppress evidence obtained from their house. They argued the affidavit did not establish probable cause to support the issuance of the warrant. The court denied the motion. The Guertins were convicted of possession of marijuana, manufacture of marijuana, and possession of drug paraphernalia. They appeal. The question presented is whether there is a sufficient nexus between the marijuana cultivation and the Guertins' house to support the issuance of a search warrant. We conclude there is not and reverse.
The Fourth Amendment requires that "no warrants shall issue, but upon probable cause . . . ." Probable cause to support the issuance of a search warrant requires facts and circumstances sufficient for a reasonable person to conclude the defendant is probably involved in criminal activity. See State v. Cole, 128 Wash. 2d 262, 286, 906 P.2d 925 (1995); State v. Gentry, 125 Wash. 2d 570, 607, 888 P.2d 1105 (1995) (affidavit in support of the warrant must set forth sufficient facts to lead a reasonable person to conclude that there is a probability that the defendant is involved in criminal activity). We give great deference to the magistrate's determination of probable cause. See State v. Seagull, 95 Wash. 2d 898, 907, 632 P.2d 44 (1981).
The affidavit must also show that evidence of the crime can be found at the place to be searched. See State v. Patterson, 83 Wash. 2d 49, 58, 515 P.2d 496 (1973). Direct observation is not necessary to establish a nexus between the place to be searched and the evidence sought. See State v. Gross, 57 Wash. App. 549, 554, 789 P.2d 317 (quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978)), review denied, 115 Wash. 2d 1014 (1990). The relationship may be inferred from the type of crime, the nature of the items, and normal inferences as to where the articles sought would be located. See State v. O'Neil, 74 Wash. App. 820, 824-25, 879 P.2d 950 (1994), review denied, 125 Wash. 2d 1016 (1995). There must, however, be a "substantial factual basis for the ultimate Conclusion that the items sought are probably located at the place to be searched." State v. Larson, 29 Wash. App. 669, 671, 630 P.2d 485 (1981) (quoting State v. Peterson, 3 Wash. App. 946, 947, 478 P.2d 745 (1970)). A nexus between a suspect and a residence exists if the affidavit in support of the search warrant "provides probable cause to believe the suspect is involved in drug dealing and the suspect is either living there or independent evidence exists that the suspect may be storing records, contraband, or other evidence of criminal activity at the residence." O'Neil, 74 Wash. App. at 825.
The affidavit here fails. It sets forth no evidence that the Guertins' residence was being used for criminal activity. Nor does the affidavit show a nexus between the grow area and the Guertins' residence, located about 150 yards away. There is, for example, no evidence of a well worn path between the two locations. See United States v. Emmons, 24 F.3d 1210 (10th Cir. 1994) (probable cause existed to search defendant's home when "very distinct trails" led from house to 150 marijuana plants in woods); State v. Edwards, 575 A.2d 321 (Me. 1990) ("well defined, trodden path" led from marijuana plot to residence 150 yards away); State v. Pinder, 128 N.H. 66, 514 A.2d 1241 (1986) (extensive network of hoses and pipes led from growing marijuana to defendant's residence); see also State v. Harp, 299 Ore. 1, 697 P.2d 548, 553 (1985) (given distance of three-eighths of a mile, usual Conclusions between residence and plants in close proximity no longer exist).
In fact, the only link between the grow area and the Guertins' house is police observation of two suspects matching the description of the Guertins "approaching" the area. The affidavit noted: "Soon after the Guertins went through the [fire danger] road block enroute to their residence on Lambert Creek Tom Craig observed two subjects . . . walk through the gate on Guertins' property, and approached the location of the marijuana plants . . . approximately 30 - 40 feet from the Guertin fence line . . . ." This statement does not support a finding that the Guertins were probably involved in criminal activity. There is no showing that the suspects, even if we assume they are the Guertins, tended to, watered or exercised any dominion or control over the easily transportable plants. The affidavit says only that they approached. It does not clarify whether the Guertins paused in the grow area, or simply approached the plants in the process of making their way toward their house. The affidavit here does not establish a sufficient nexus between the Guertins and the suspected criminal activity.
The court therefore erred in denying the Guertins' motion to suppress. The case is remanded for trial without the evidence seized in the search of the Guertin residence.
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.