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No. 35444-2-I, Consolidated w/ No. 35504-0-I
January 21, 1997, Filed
For Appellant: Anthony Savage, Counsel At Law, 615 Second Avenue, Suite 340, Seattle, WA 98104.
For Respondent: Sarah M. Roberts, King Co Courthouse, 516 3rd Ave #w554, Seattle, WA 98104. Prosecuting Atty King County, Appellate Division, 4800 Columbia Center, 701 Fifth Avenue, Seattle, WA 98104.

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 Sea Tac 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. 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 Ed. 2d 723, 84 S. Ct. 1509 (1964)). The affidavit supporting a search warrant should be read in a common-sense, practical manner, not hyper technically. State v. Garcia, 63 Wash. App. 868, 871, 824 P.2d 1220 (1992). The issuing magistrate's determination of probable cause is entitled to great deference, and any doubts are resolved in favor of validity of the warrant. State v. Kalakosky, 121 Wash. 2d 525, 531, 852 P.2d 1064 (1993).

Detamore and Heminger concede that the "basis of knowledge" prong was established. See, e.g., State v. Smith, 110 Wash. 2d 658, 663, 756 P.2d 722 (1988), cert. denied, 488 U.S. 1042 (1989) (information showing that informant personally has seen the facts asserted and is passing on firsthand knowledge is sufficient to satisfy the basis of knowledge prong). They argue, however, that the veracity prong was not established and that independent police investigation was insufficient to rectify the deficiency.

Where, as here, an apparent citizen informant wishes to remain anonymous, "the affidavit must contain background facts to support a reasonable inference that the information is credible and without motive to falsify." State v. Cole, 128 Wash. 2d 262, 287-88, 906 P.2d 925 (1995). Information describing the informant and explaining his or her purpose for being at the crime scene and the desire for remaining anonymous substantially decreases the possibility that the informant is somehow involved in the criminal activity or is motivated by self-interest. State v. Ibarra, 61 Wash. App. 695, 700, 812 P.2d 114 (1991). Assertions that an informant was a citizen without a criminal record, did not provide the information in exchange for money or leniency on a pending criminal charge, and was motivated by an interest in justice have been found sufficient to satisfy the veracity prong, even though the affidavit did not specify why the informant wished to remain anonymous. State v. Dobyns, 55 Wash. App. 609, 619, 779 P.2d 746, review denied, 113 Wash. 2d 1029 (1989).

In this case, the assertion that the informant was concerned about the children living in the Detamore residence and provided the information without seeking money or leniency on a pending criminal charge supplied some support for the veracity prong. See State v. Cole, 128 Wash. 2d at 288. But the absence of any description of the informant or explanation of his or her purpose for being in the residences, coupled with the fact that the informant had purchased marijuana from both Detamore and Heminger at some unspecified time in the past, makes it difficult to assess the validity of the informant's reason for wishing to remain anonymous or even whether the informant was truly a citizen informant. See State v. Ibarra, 61 Wash. App. at 701.

Even if the recitation in the affidavit was insufficient to establish the informant's veracity, however, the deficiency may be rectified by independent police investigation that corroborates the tip in a manner that supports the missing elements. State v. Maxfield, 114 Wash. 2d 761, 769, 791 P.2d 223 (1990). The independent investigation must point to probative indications of criminal activity; innocuous details cannot remedy a deficiency under either the basis of knowledge or veracity prongs. State v. Franklin, 49 Wash. App. 106, 108, 741 P.2d 83, review denied, 109 Wash. 2d 1018 (1987).

In this case, the independent police investigation confirmed a number of personal, non-incriminatory details about Detamore and Heminger, including their presence at the suspected residences, apparent lack of gainful employment, and extensive personal interaction. Unlike State v. Ibarra, relied upon by appellants, the police also discovered several suspicious circumstances that corroborated the informant's tip, including Detamore's failure of job-related drug testing, covered windows with heavy condensation, and abnormal electrical consumption in both residences. Although an increase in electrical consumption is insufficient, standing alone, to establish probable cause, it may properly be considered when combined with other suspicious facts. Cole, 128 Wash. 2d at 291.

Under the circumstances, the police investigation revealed sufficient indications of suspicious activity along the lines suggested by the informant to permit the magistrate to undertake an independent assessment of the confidential informant's reliability. The veracity prong was more strongly supported in the Heminger affidavit, which was prepared after the search of the Detamore residence and which recited that the informant had supplied detailed, accurate information about the growing operation in the Detamore residence. See State v. Smith, 110 Wash. 2d at 664 (veracity requirement established if informant has provided information leading to arrest or conviction).

Detamore and Heminger argue that the trial court erred in considering the evidence of increased power consumption because there was no showing that the records were obtained in accordance with RCW 42.17.314, which requires that a law enforcement authority make a written request before seeking utility records. As the moving parties, however, the burden was on Detamore and Heminger to support any claims of a statutory violation. State v. Rakosky, 79 Wash. App. 229, 234, 901 P.2d 364 (1995). As the trial court correctly noted, Officer Mattsen did not receive the power records from the utility company; rather, he received them from a federal agent, who had obtained them by means of a "Federal Administrative Subpoena." Because there was no showing that the power records were obtained in violation of RCW 42.17.314, the trial court did not err in considering the power consumption evidence. State v. Fisher, 96 Wash. 2d 962, 968, 639 P.2d 743, cert. denied, 457 U.S. 1137 (1982) (defendants failed to meet burden of demonstrating that adequate precautions were not taken to prevent mistaken search).

In summary, the informant's tip, coupled with the subsequent police investigation, was sufficient to support a determination of probable cause.