How to avoid Pot Busts!

I. INTRODUCTION

Marijuana is a drug of such enormous power that it has driven the government mad. Where the prosecution of marijuana offenders is concerned, no expense is too great for the government. No allocation of valuable resources such as manpower, equipment, or jail space is beyond the reach of a police agency dedicated to crushing and fleecing anyone who comes close to pot. In my state, Washington, local law enforcement agencies think nothing of sending a dozen officers, and a large number of vehicles, including planes and helicopters, on a week long foray across the state and even into Oregon, just to bust a couple of pounds of pot. Meanwhile in many counties in Washington, methamphetamine accounts for 75% of all referrals to Children’s Protective Services. But no matter the relative harm, marijuana arrests are climbing towards one million a year – more than all other drugs and violent crimes put together. And, despite the clear fact that the war on marijuana is a footless fraud, no end appears in sight. So you better get ready.

You and your lawyer need to understand that marijuana prosecutions are different from any other criminal action for at least three reasons: First, no other type of law violation has spurred police to develop such intrusive investigative techniques or to habitually bully and terrorize an entire class of harmless citizens; second, when you defend a marijuana prosecution it is you, not the government who occupies the moral high ground; and third, when you try a pot bust case, the only victim in the courtroom is the defendant!

America’s fastest growing indoor hobby/cottage industry has provoked law enforcement to respond aggressively with intrusive investigation techniques – some employing space-age technology and many bringing the eyes, ears and noses of law enforcement into areas American citizens have long considered to be at the hard core of the right to privacy. Enforcement against indoor cultivation has become an issue of primary importance now that the Drug Enforcement Agency and local law enforcement have prioritized the “war” on domestic marijuana. In the State of Washington, for example, where the large majority of the marijuana, Washington's number one cash crop, is grown indoors, a well-publicized $5000 reward awaits informants who will turn in marijuana farms. Remarkably, no advertised reward encourages those who turn in murderers, rapists, robbers, child molesters or criminals who prey on the vulnerable. Even dealers of the harder drugs have no advertised bounty on their heads. How can this be? Marijuana is not a dangerous drug. Its use is not a danger to society. Extreme measures to enforce the marijuana laws are not justified.

The resultant pressures on the privacy of the home are difficult to reconcile with traditional American values such as tolerance, liberty, or pursuit of happiness. But, privacy is a fragile right. No one ever got elected for defending it. It comes as no surprise that it retreats in the face of three decades in which everyone has indulged the drug warriors. More alarmingly, however, as the following discussion will explain, even the usually robust rights of private property are no longer secure. The entire U.S. Constitution has retreated in the face of the assault. Any defense attorney – for that matter, any reasonably industrious federal agent – knows that for those who depend for protection upon the U.S. Constitution, few places remain that are truly private. In many state courts, however, there is room for creative and aggressive response to the war on privacy. Indoor marijuana gardens are a relatively new phenomenon. Many of the intrusions they provoke have not yet been tested under state constitutional theories. Where there has been a test, states have often found enhanced protection in their own constitutions. No defense attorney practicing in state court can afford to overlook those few remaining opportunities to have someone in a robe say the word “suppressed.”

Below is an examination of law enforcement techniques I have frequently encountered in marijuana cases – and often encountered in other types of cases – and the major legal as well as factual issues that arise from them. This article suggests some of the most common state constitutional issues, as well as some of the non-constitutional issues a client and his or her lawyer will face in defending a marijuana prosecution. The discussions are not intended to be comprehensive; hopefully they will be inspirational. Although we haven't thought of everything, Washington leads the country in arrests for indoor growing, and we have been forced to pioneer some of these defenses.

In defending these cases and making these arguments emphasize the simple fact that the Bill of Rights should not be viewed as an impediment to effective law enforcement. This fundamental democratic principle has received so little support from our leaders and jurists that the American Bar Association recently felt it necessary to conduct a study to reaffirm its continued validity. Their findings are particularly relevant to the lawyer who would defend the privacy of the home: the constitution, and in particular the exclusionary rule,[1] do not impede effective law enforcement. Rather, the committee of prosecutors, police, lawyers and judges concluded, they protect fundamental rights at a very low cost, while encouraging the

professionalism that is essential to good law enforcement in a Democracy.[2]

1. HOW TO GET BUSTED
2. SEARCH WARRANTS – THE KEY TO YOUR DOOR
3. Home Hygiene

As you will see from what is written below, it’s not that hard to get a search warrant for a private residence. If that happens, you had better hope that there is no money, no guns, no needles or hard drugs, no financial records or records of safe deposit boxes, no links to your associates in the marijuana industry, no evidence of prior grows or unexplained wealth and no fancy toys. It’s also nice if there are no “indicia of dealing” such as scales, baggies, lists of who owes what, diaries of past grows or past deals, letters between associates, or instructions to helpers or distributors. See Appendix A for a government-generated list of what cops consider “indicia of dealing.”

If you are growing in the same house with your legal gun collection, or where your spouse, your mother, or your children reside, you are already two strikes down. Guns and vulnerable victims give the police way too much leverage – sometimes so much that you will even be forced to give up valid defenses rather than risk the enhanced penalties that guns bring, or the suffering and torture that will surely befall you loved ones if you have allowed them to get in harm’s way.

If you are breaking any of these rules, be sure to put away quite a bit of extra money for your lawyer, your family’s lawyer, and your family’s support while you are away for a long time. Meanwhile, here is some information about search warrants, how police get them, and what you can do about them.

2. The Sacred Function of the Search Warrant

The home is the last place where the law still provides some degree of privacy. If the crime is being committed in your home, police will probably need a search warrant to get in and find it. Even the smell of marijuana detected by an officer when s/he knocks on your door and you foolishly open it does not allow police to enter your home without a warrant. Exceptions to this rule will be discussed later, under “warrantless searches.”

The law of search and seizure is all about privacy. Remarkably, although polls suggest that this is one of the most highly valued rights among American citizens, most voters seem to accept radical changes in the rules of privacy which can only be viewed as placing that fundamental right on the endangered species list.

According to the United States Constitution, police may not enter and search a private residence or its “curtilage” (except for the unblocked path to the front door) without prior judicial approval in the form of a search warrant. How do they get these warrants?

Although every now and then police actually stumble on a grow without help, (even a blind chipmunk occasionally stumbles on an acorn), nearly all search warrants come from tips. Sources of tips – informants – come in infinite forms. Informants are much more prevalent in the marijuana trade than in other situations, since most marijuana growers are non-violent and wisely refuse to treat informers in ways that are customary if not mandatory when it comes to other crimes. This benign attitude allows many to make highly paid careers out of rooting out and turning in (sometimes after ripping off) grow rooms.

Anyone who spends much time around the criminal justice system knows that the United States has reversed its moral compass on this issue. Informants have been universally detested throughout history. We all remember Judas. Dante reserved the innermost circle of Hell for informants. Benedict Arnold was the eponym for the lowest form of biped life in all of North America. Linda Tripp will be reviled for all of history. Yet today, informing is a major part of the growth industry. Tax-free and inflation proof. Rewards in five to six figures are common. The government buys the testimony it wants/needs with freedom, cash and who knows what else. Without informants our justice system would grind to a halt like pulp mills without trees. But, I digress . . . . This is how the government gets the key to your door:

The Fourth Amendment to the United States Constitution, and the constitutions of the states all require, in some form or another, that searches of private places be conducted only where a neutral and detached magistrate or judge has concluded that probable cause exists to search, and has issued a search warrant. Search warrants are issued based upon sworn statements from law enforcement officers. The statement is usually in the form of an affidavit, but maybe a recorded telephone call to the judge. A search warrant based upon an affidavit that does not establish probable cause is not valid. This means that the evidence it produced should be suppressed – should not be admitted in court.

A “facial” challenge to a search warrant – usually a challenge to the adequacy of the facts contained within the “four corners” of the affidavit – is usually essential in defending most marijuana grow cases. In many cases it is not only the front line of defense, it is the only defense. If the evidence comes in you’re convicted.

If you are desperate enough, you should be able to find an issue in virtually every search warrant. However, recent developments in Federal constitutional law leave application of the Fourth Amendment to these cases a largely academic endeavor. By this I mean errors, defects, or governmental misconduct that will result in actual suppression of the fruits of a search warrant under federal law are rare. If you are busted by the feds, you will need a specialist in federal search and seizure law to guide you through this contorted area of the law. By comparison, Alice in Wonderland seems simple and straight – forward.

Things are not quite so bleak in state court, where some jurists still remember the prophetic admonition of Mr. Justice Douglas:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals, nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted.

McDonald v. United States, 335 U.S. 451, 455-56, (1948).[3] In other words, for the process to work, the magistrate must be something more than a "rubber stamp" for the police who want to conduct a search.

3. Informants who will bust you: Sources of probable cause for search warrants
4. General information about informants:

Few indoor marijuana cultivation cases commence without an initial tip from an informant. Informants come in many categories. Any two-bit criminal who finds him/herself in trouble with the law can trade his cage for the freedom of a harmless pot outlaw. There are usually no consequences. They should be branded as traitors and banished from civilized society.

Some power company employees, who may be allowed to trespass in order to read meters or repair equipment, have made informing a second, (and more profitable) career.

The various shipping companies must all be viewed with suspicion. This writer has had many clients whose packages appeared “suspicious” to UPS (“Ur Privacy Sucks”) employees. Although they maintain regular relationships with law enforcement, and law enforcement frequently lectures them on what to look for, they are not considered agents of the government. That means they can open any package any time for any reason. If they find contraband, they contact the police, who then get a warrant – after the real search has taken place. But it’s O.K. They’re “private actors.” The constitution applies only to the government and its agents. The misconduct of private actors does not result in suppression of evidence.

What to do if busted by a “private” company? Bring them in. Using your discovery rights, expose the relationship between them and the police. Explore whether their conduct violates local laws or constitutions regarding the right of privacy. If it does, sue them. If their conduct violates local privacy laws, demand that they be prosecuted. Let the local public know that the company does not honor privacy.

Landlords are always a problem. If you conspire with them, they have too much to lose (their property) so they will often turn against you. If you don’t conspire with them, they’ll usually turn you in if they catch you. You have to use your ingenuity to deal with this situation. Just remember. They’re in it for the money.

Jealous, sanctimonious, or otherwise nosy neighbors bring down many a farm. Money doesn’t motivate them. Because they are often only anonymous sources that inspire the police to try to get a whiff, you never find out who they are. There’s not much you can do about them. But it never hurts to be a good neighbor.

And, of course, there is no informant so common as the rejected lover or business associate. If you made the mistake of sharing your private business with someone who later turns on you – well, so it goes. If you weren’t so greedy or lazy you’d have done it all by yourself and there would be no one to snitch you off.

Another problem is ego. Proud but vulnerable growers still haven't learned not to show off their work. This is a basic survival lesson: If, like most law-abiding pot growers, you are not ready to send quick, graphic messages to the informant community, your only choice (and the safer and wiser one) is to send them no messages at all. Zip your lips. Can you do it? If not, I seriously recommend keeping a short strip of duct tape in your purse or wallet. When you feel the urge to talk about your grow, pull the tape out and place it over your lips.

If that doesn’t work, and you become the victim of an informant, you’ll need some defenses. Here is a summary of the relevant law of informants:

Under the United States Constitution, the test for whether probable cause is established in a search warrant is an easy one for the police to meet. An informant’s tip is evaluated under the “totality of circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983). Under this test, with minimal confirmation of a few innocuous facts in the tip, the police can secure a virtually airtight search warrant for a private residence based upon little more than the pointing of an anonymous finger.

Many state courts have rejected this rule, instead requiring that an informant’s tip must still satisfy the more structured two-prong “Aguilar-Spinelli”[4] test, which requires the affidavit which supports the search warrant to demonstrate both the informant’s basis of knowledge, and credibility. See, e.g., State v. Jones, 706 P.2d 317 (Alaska 1985) (relying on article 1, § 14 of the state constitution); State v. Jackson, 688 P.2d 136 (Wash. 1984) (article 1, § 9); State v. Horwedel, 674 P.2d 623 (Or.App. 1984) (Or. Rev. Stat. ' 133.545(3); Or. Const. article 1, § 9); State v. Kanda, 620 P.2d 623 (Haw. 1980) (article 1, § 7).

Then there’s the “good faith” exception to the exclusionary rule. If the warrant is later found to lack probable cause, if the officers relied on it in “good faith,” the evidence still comes in. If your state has not yet accepted this rule, your lawyer may get some use out of the brief on the subject I have attached as an appendix to this article.

Informants come in several different varieties. The credibility or reliability of informants must be established by facts in the affidavit, which would support the magistrate’s conclusion that the informant is telling the truth. The officer’s opinion that the informant is reliable is not enough. That the informant is named in the affidavit, disclosed to the judge, or, at least, known (and identified) by the affiant,[5] is significant. See, e.g., State v. Northness, 20 Wn. App. 551 (1978), (defining categories of informants).

1. The anonymous informant.

You will probably never find out who this is. His/her word is not sufficient to establish probable cause without more. State v. Bantum, 1 P.2d 861 (Wash. 1931). Thus the police will

have to do some work and provide some “corroboration” of the informant’s tip. If the target is a grow, police will go to the house. If the front porch is not protected against trespass they will come to the door to try to get a whiff. They will look for covered windows, suspicious vents, potting soil, and other indications of indoor gardening discussed below, and listed in the sample search warrant affidavit in Appendix A.

In these cases, the challenge by the defense will focus on the "corroboration" provided by the police to bolster the otherwise inadequate tip. Is it just innocuous? Is it really evidence of crime, or are the police just attaching suspicion to everyday common items and occurrences? This is dangerous in a free society. As the sage Captain Jean Luc Picard of the Starship Enterprise once observed, “the road from legitimate suspicion to rampant paranoia is very much shorter than we think.”

Don't always accept the word of the police when an anonymous informant is claimed. One clever defense investigator recently reviewed all search warrants done by a particular officer, (they should be a matter of public record), and established a pattern which proved that the officer's informant was nothing more than an "imaginary friend."

1. The citizen informant.

Citizen informants are ordinary citizens who stumble on or are the victims of a crime. Where probable cause relies on the word of non-professional "citizen" informants, the requirement of a showing of reliability is somewhat relaxed. Some allegations must nevertheless be made to show that it is a true "citizen" informant, who may then be presumed reliable. State v. Chatmon, 515 P.2d 530 (Wash. 1973), (police must still interview the informant and ascertain such background facts as would support the inference that he is reliable). The affidavit should reveal the reasons for the citizen informant being present at the scene of the crime, since most persons present where drugs are seen are criminals, not innocent citizens. State v. Rodriguez, 769 P.2d 309 (Wash. App. 1989). As Professor LaFave observed:

[C]ourts should be cautious in accepting the assertion that one who apparently was present when narcotics were used or displayed is a presumptively reliable citizen-informer . . . . [T]his is because as a general proposition it is an informant from the criminal milieu rather than a law-abiding citizen who is most likely to be present under such circumstances. This is not to suggest that a person giving information about the location of narcotics may never qualify as a citizen-informer, for it is sometimes possible to show with particularity how a law-abiding individual happened to come upon such knowledge.

1 LaFave SEARCH AND SEIZURE (1987), at 728. (Emphasis supplied).

State v. Ibarra, 61 Wn. App 695 (1991), is hopeful. This case reiterates the Northness categories of informants, observing that "the concern that the informant information may be coming from an anonymous troublemaker remains when the citizen informant is unidentified. Therefore, the State's burden of demonstrating the credibility of a citizen informant is not necessary lightened when the informant remains unidentified to the magistrate." 61 Wn. App. 699. This case holds that the reliability/credibility of the alleged "citizen informant" was not established, particularly because the reason why the informant was at the scene of the crime/location of the crime was not given. The case holds that a generic recitation of the officer's conclusions is not sufficient to raise the requisite inference that the informant had a valid reason for wishing to remain anonymous.

1. The “criminal milieu” informant.

Some courts recognize the reality that informants from the "criminal milieu" –criminals in plain English -- are likely to lie and should be presumed unreliable: "It is to be expected that the [criminal] informer will not infrequently reach for shadowy leads, or even seek to incriminate the innocent." Jones v. United States, 266 F.2d 924, 928 (D.C. Cir. 1959).

Law enforcement officials and prosecutors are at least privately aware of the likelihood that criminals will lie to stay out of trouble. For example, the Hon. Stephen Trott, when he was in charge of the criminal division at the United States Department of Justice wrote:

Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. In my personal firsthand experience of over 18 years as a prosecutor, this willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also manufacturing evidence, soliciting others to corroborate their lies with more lies, double-crossing anyone with whom they come into contact, including - and especially - the prosecutor. A drug addict can sell out his mother to get a deal; and burglars, robbers, murderers and thieves are not far behind. They are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept. To some 'conning' people is a way of life. Others are just basically unstable people.

Trott, The Successful Use of Snitches, Informants, Co-Conspirators, and Accomplices as Witnesses for the Prosecution in a Criminal Case 2, (United Sates Justice Department 1984). Mr. Trott is now a judge on the United States Court of Appeals for the Ninth Circuit. His updated article was recently published at 47 Hastings L.J. 1381. The title is Words of Warning for Prosecutors Using Criminals as Witnesses.. He has recently reiterated these same feelings in a written opinion. United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 3/29/93), addresses credibility of informants as trial witnesses: “Our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.” See also, Zeese, How Prosecutors Use Informants, 1 DRUG L. REP 130-31 (Sept.-Oct. 1984).

Bernal-Obeso is the exception. Courts have demonstrated rare ingenuity in developing theories by which to support the veracity of these inherently unreliable sources of information. The police may rely on, among others, the following common methods of showing the veracity of the criminal informant:

(1) A "track record" of virtually any prior cooperation with the police. This should not be interpreted to mean that if an informant predicted the sun would rise, and then it did, his word may now be presumed reliable. State v. Fisher, 639 P.2d 743 (Wash. 1982), but see, dissent. Note that a "controlled buy" should not establish reliability unless the affidavit alleges the informant claimed he could buy at that location, and then did. State v. Casto, 692 P.2d 890 (Wash. App. 1984); State v. Steenerson, 688 P.2d 544 (Wash. App. 1984).

(2) A “statement against penal interest,” State v. O'Connor, 692 P.2d 208 (Wash. App. 1984). The theory is that when people admit to crimes, it must be true. This theory should not be applied where it doesn't fit (although it often is). The statement must be genuinely against penal interest. Note here that the naming of the informant in the affidavit is not a passport to reliability; rather, it is a prerequisite to a finding that a statement against penal interest supports an inference of reliability. 1 W. LaFave, SEARCH AND SEIZURE, at 644. This exception should not be used to make a person who confesses to some crime a more reliable source of information than an honest citizen.

(3) The informant is highly motivated to provide accurate information, and will not lightly lead police down blind alleys. State v. Bean, 572 P.2d 1102 (Wash. 1978); State v. Estorga, 893 P.2d 813 (Wash. 1991); these cases showcase judicial logic at its thinnest. A criminal caught red-handed who then makes a deal is presumed to be reliable? This is dangerously dishonest logic. Often "prospecting" -- law enforcement's own term for leading police down blind alleys in the hope of getting lucky and finding something incriminating -- is an informant's only hope.

(4) Merely giving the name of the informant does not establish reliability. State v. Sieler, 621 P.2d 1272 (Wash. 1980).

Many search warrants for indoor grows rely almost entirely on the word of a criminal milieu informant. Where the "full-court press" is necessary to the defense of the case investigative opportunities here are many. When dealing with a criminal milieu informant, the lawyer should check possible suspects for recent arrests or convictions. Where there are no clues, check search warrants[6] in the same jurisdiction for similar warrants or warrants by the same officer. Then interview other targets of similar searches to see if one name of a suspected informant comes up twice. Then interview that one. Often the informant will have been materially misquoted. Perhaps he first misled the police before deciding to "tell the truth" about your client. There’s always something there of value. Of course, never interview informants alone!

4. Police investigative techniques that generate warrants
5. Discrediting police opinions and investigations

Most drug search warrant affidavits contain a routine laundry list of things that drug dealers routinely keep in their residences – according to the officer’s experience. An example of this is attached as Appendix A. Under federal law, if there is probable cause to believe that you are involved in drug dealing anywhere on the planet that by itself is probable cause to search your residence. That means when the feds bust you selling on the street, growing in a rented building, smuggling in a boat or at the border, they will come and search your house, usually immediately. They may also search you parents’ house, your ex spouse’s house, or your children’s house. And the search will be legal.

If the state busts you, it depends where you live. In Washington, thanks to a case of which I am very proud, the mere recitation of an officer’s conclusions about what drug dealers keep in their homes is not enough to get a warrant. There must be some specific information suggesting that the evidence sought will be in the place to be searched – some specific evidence tying the place to be searched to the specified illegal activity. The case is State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999).

The weight of police observations contained in search warrant affidavits may also be minimized by defense investigation. Check whether all of the details are accurately reported. Sometimes a series of superficially harmless errors in reporting by police officers seeking warrants may form a pattern suggesting intentional misleading when viewed as a whole. Argue that every mistake in this particular warrant has the affect of enhancing probable cause. The odds would be that if the mistakes are genuine, and random, at least half of them would detract from probable cause.

As I will discuss later, that is the burden: inaccuracies must be intentionally misleading before they result in suppression.

Indoor marijuana cultivation investigations have incorporated a variety of new investigative indicators, tools and techniques. Some common police techniques are discussed below. A thread that seems to run through all of the information offered by police in support of probable cause to search for indoor farms is the tendency to equate conduct consistent with criminal activity with conduct actually probative of criminal activity. Heat escaping from a building, higher than average power consumption, covered windows or other attempts to protect privacy, even the presence of gardening equipment such as pots and potting soil, or purchasing something from a gardening store -- all of these innocuous events are often pointed to by police as evidence of criminal activity.

The Washington Supreme Court's well-reasoned opinion in State v. Jackson, 102 Wn.2d 432, 439, 688 P.2d 136 (1984) may be useful here:

The independent police investigation should point to suspicious activity, "'probative indications of criminal activity along the lines suggested by the informant." Merely verifying "innocuous details", commonly known facts or easily predictable events should not suffice to remedy a deficiency in either the basis of knowledge or veracity prong. Corroboration of public or innocuous facts only shows that the informer has some familiarity with the suspect's affairs. Such corroboration only justifies an inference that the informer has some knowledge of the suspect and his activities, not that criminal activity is occurring. Corroboration of the informer's report is significant only to the extent that it tends to give substance and verity to the report that the suspect is engaged in criminal activity. (Citations omitted.)

United States v. Mendonsa, 989 F.2d 366 (9th Cir. 1993) is helpful here in that it, too, requires something more than corroboration of innocent details, even in federal court.

1. Surveillance of grow equipment shops

Particularly troublesome here is the recent tendency to place stores which sell gardening equipment under surveillance, then to follow customers to their homes and attempt to establish probable cause. “Operation Green Merchant,” as it was called, is an alarming trend in law-enforcement.

Grow shops are like the watering holes in the desert. The predators hang out there, waiting for their prey to come to them. To the credit of police, this technique actually generates leads without snitches. But it has its dangers in a free society. Gardening has become a common form of recreation in America. Its popularity, including the popularity of legitimate indoor gardening is exploding. Thus, not only does this investigative technique raise an issue of the chilling effect upon protected legitimate conduct, it also casts doubt upon police observations, which are as probative of a legal indoor garden as of an illegal one.

If the police spot you at a grow shop, they will investigate you. If your license plate does not connect to any prior record of drugs or association with someone with a record, they might ignore you. But, on a slow day, even the innocent looking shoppers get followed home. The next step is to sneak around your neighbor’s yard in the dead of night trying to get a whiff of your crop. In many neighborhoods, this can lead to some unfortunate confrontations.

Law enforcement will invariably attempt to persuade the courts that only marijuana is valuable enough to be grown under lights. This is a clearly and demonstrably false premise. Across the country modern hi-tech gardens big and small refute this dangerous misrepresentation. In the unlikely event that your community has no local experts on legitimate indoor agriculture, the American Orchid Society, the Indoor Light Gardening Society of America, the world wide web, and most of the major national/international light bulb companies, are but a few of the many good sources of evidence to refute this dangerous lie.

1. Power usage

Examination of power consumption records has become a common investigative tool since indoor cultivation relies heavily on electricity. If your use is high, the cops say that’s probable cause. If your use is low, cops say that’s probable cause, too, because you must be stealing the power. The problem is, if you steal the power, not only are you a thief, but power company employees easily detect it. In the course of lawfully searching for the power tap they will bring police with them and whatever you’re growing will be discovered. The solution to this dilemma is simple: don’t be greedy. One or two lights are really all you need unless you are growing for the Green Cross.

If you find yourself in court with this issue, argue that above average or increased power use has too many legitimate explanations to be considered probable cause. See, e.g., State v. McPherson, 698 P.2d 563 (Wash. App. 1984). Compare, State v. Donahue, 762 P.2d 1022 (Or.App. 1988) (accepting increased power use as having some significance where the odor of marijuana was also present).

An attorney can minimize the probable cause value of power usage information with statistics from the power company showing what is average and what the range of power consumption is, and by employing an expert[7] to advise the court of the many other innocent explanations for the high power consumption.

In addition to questions regarding their probative value, police seizure of power records may raise constitutional and statutory issues. In Washington state, the Privacy Act prohibits seizure without a written statement of "articulable suspicion." Wash.Rev.Code ' 42.17.314 (codifying In re Rosier, 717 P.2d 1353 (Wash. 1986); State v. Maxwell, 791 P.2d 332 (Wash. 1990), (applying the statutory protection to the search warrant process, while refusing to rule on the constitutional issue); State v. Butterworth, 737 P.2d 1297 (Wash. 1987) (specifically declining to rule on the Constitutional issue). There is an argument that such a seizure of power records is unconstitutional because it violates individual privacy rights. In an age where computer technology makes every small bit of recorded information available almost instantaneously, realistic protection of the fragile right of privacy requires that prior judicial approval precede search or seizure of information regarding matters occurring within a citizen's home. The seizure of power records is for the purpose of securing evidence of a crime; the evidence is of a nature which reflects the private activities of a citizen within his or her home, and about which the citizen has a reasonable expectation of privacy. See, Hearst Corp. v. Hoppe, 580 P.2d 246 (Wash. 1978). In Hearst, the Washington Supreme Court observed, (in a non-criminal context):

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his history that he would rather forget." (Emphasis supplied).

580 P.2d at 253, quoting, Restatement (Second) of Torts, '652 D at 383 (1977).

An interesting side issue here comes from the fact that pot growers often divert (steal) power to keep high power bills from alerting the authorities. Where a diversion is suspected, power companies will install "comparator" meters, which show that not all power being used by a residence is flowing through the meter. Where this takes place, argue first that the comparator meter requires a warrant, and second, that probable cause to search for power theft does not constitute probable cause to search the entire house, since power is stolen outside the house, before the wires reach the meter.

1. Infrared thermal imagers

Modern technology allows law enforcement to monitor surface temperatures of residences by flying over in a helicopter, or driving by at a distance. Where police observe what they consider to be "excessively high" levels of heat escaping from a residence, they will point to that factor as a part of probable cause. They will even argue that they can read the results to identify: maps that specifically past to grow room. See Appendix A. Many defenses are possible:

It's a search. In Washington, State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994) holds that a search warrant based upon probable cause must precede the use of a thermal imager on a private residence. In State v. Binner, Walker, and Walker, Harney County (Oregon) Judge Yraguen ruled that the use of a thermal imager was a search under the Oregon Constitution. Unfortunately, the federal law is to the contrary. United States v. Kyllo 190 F.3d.1041 (9th Cir. 1999) joins most of the other federal circuits in holding that the use of the thermal imager is not a search and, therefore, does not require a warrant. But there are still some arguments.

It’s unreliable. In United States v. Kerr, 876 F.2d 1440 (9th Cir. 1989), the court declined to rule on the search issue, observing that the information from the thermal imager had been of limited probative value. An informant, a drug dog, or even an officer, whose information was suspect, would not be tolerated as a source of probable cause. Neither should this device. The results of this device are inherently unreliable, as well as ambiguous. Local experts can assist an attorney in demonstrating that heat radiating from buildings, even in "excessive" amounts, whatever that may mean, may reflect a number of things, only one of which is unlawful. Poor insulation, a sauna, a legitimate indoor garden, the color of the exterior wall, the direction of exposure, shelter, openness to wind or sun, or even the material from which the wall is constructed, are all variables which would affect the external temperature of a building wall. An engineer who is trained in the use of a thermal imager, (if he is not in the employ of law enforcement) can testify that it is not reasonable to draw any inferences regarding criminal conduct based upon amounts of heat radiating from a building.

In one case this writer received a tape of a thermal imager fly over where the officers were recorded as they observed a target building. “That’s it! I see the heat!” But when they conducted the raid, all they found was an abandoned shack with windows and doors gone. The “heat” they saw, and upon which they based their successful request for a search warrant, was a figment of their wishful imaginations. In other words . . .

The device is like a Ouija® board: subject to manipulation and misinterpretation by poorly trained, unethical or suggestible operators. Again, this is a matter of reliability. By using this ambiguous information as probable cause, both the risk and reality of intrusion into the privacy of innocent persons are increased to an intolerable level. In a surprising number of cases investigated by this writer no grow room was found where law enforcement had predicted -- based upon their use of thermal imager technology -- that one should be. Poor training, too much enthusiasm, or even outright fabrication are among the explanations for the many failures of this technology. Must American citizens refrain from any kind of indoor gardening in order to protect themselves from warrants based upon rumor and suspicion?

Further, even when the device is properly operated, and its results accurately reported, these results are inherently equivocal, and therefore lend themselves to law enforcement officers who seek to undermine the magistrate's function by passing off conclusions as facts, and elevating their suspicions to probable cause. Compare U.S. v. Penny-Feeny, where heat radiating from building was "consistent with" marijuana grow, with U.S. v. Kerr, 876 F.2d 1440 (9th Cir. 1989) where lack of heat radiating from building was consistent with marijuana farm because "marijuana growers often insulate their growing areas."

Investigating cases with these devices is a complex subject. You must try to get a copy of the tape, if any, made by the device. Ask the court to order that the device be made available to you for inspection and testing. Demonstrate to the court the inherent unreliability of the device.

Use of the military. The thermal imager is often used by the military, at the request of local authorities. Where the military have been involved, another universe of defense is opened up. With very little notice to the public, the military has crept into civilian law-enforcement for the first time in recent history. Courts seem ready to stretch the "posse comitatus" act -- the law that prohibits use of the military--to permit this exception where marijuana is involved. This, too, is a subject ripe for litigation, but too complex to address here.

1. Smell of marijuana

Another common piece of evidence in search warrants is the allegation that someone detected the odor of marijuana. If the smell of a contraband item is distinctive and the person who smells it is qualified to distinguish it, that smell provides probable cause. State v. Compton, 538 P.2d 861 (Wash. App. 1975). Even where the officer was wrong, but believed in good faith that he was smelling marijuana, this may yet establish probable cause. State v. Remboldt, 64 Wn. App. 505, ___ P.2d ___ (1992), review denied ___ Wn.2d ___. But note here: in states where marijuana is a legal medicine, the smell of marijuana coming from a private residence is not evidence of a crime. In the future, we must argue, it takes more than just the smell to get a warrant.

If you do have to deal with a smell case, here are a few ideas. Hopeful here is United States v. DeLeon, 979 F.2d 761 (9th Cir. 1989), where one of the officers who claimed to have smelled marijuana was not shown to be qualified to recognize the odor of growing marijuana which differs from the odor of burning marijuana. The court observed that odors can be the basis of probable cause only if the affiant is qualified to know the odor and the odor is sufficiently distinctive.

Factual issues become more important where the odor of marijuana is relied on. Some judges have become suspicious of smell evidence. For example:

Smell experts can testify that marijuana is difficult to distinguish from other pungent plants, that smell is not directional, and that the officer had inadequate training to identify that which he smelled or locate its source.

Physical evidence which casts doubt on the officer's observations, i.e., distance from plants, filters, negative ion generators, wind direction, topography, etc.

The analogy to the Ouija board comes to mind. If the officer claimed his Ouija board had never been wrong, could it provide probable cause?

One frequently encountered situation involves a farm so well protected from the escape of a smell that it is incredible that the officer smelled it, yet the claim is made, and marijuana is found. It may well be that the officer had to trespass into the curtilage before getting the telltale whiff. Neighbors, footprints, and hidden surveillance cameras, are among the all too rare sources of information that might establish this trespass. If a trespass can be established, a following section discusses the applicable law.

Finally, in states where marijuana is a legal medicine, there may be a new defense: the smell is no longer probable cause. The police must first request to see the paperwork to determine whether the use is medical

1. Garbage searches

Searches of garbage have become a favorite way to develop probable cause to search a residence. Federal law permits warrantless searches of garbage. California v. Greenwood, 486 US 35, 100 L.Ed.2d 30, 108 S.Ct. 1625 (1988). Whether this permission extends to actual chemical analysis of items found in the garbage, such as Kleenex, discarded medicine containers, or other personal matters is still unclear. In another context, it seems to be forbidden. In United States v. Jacobsen, 466 U.S. 109, 80 L.Ed.2d 85, 104 S.Ct. 1652 (1984), federal agents acting without a warrant performed chemical tests on a package which had been previously opened by employees of a private company. The Jacobsen Court held that the search and seizure of the package were reasonable because they were limited in scope to the extent of the private search. The court then addressed the warrantless testing of the substance found within the lawfully seized package:

The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express employees and therefore exceeded the scope of the private search, was an unlawful "search" or "seizure" within the meaning of the Fourth Amendment.

. . .

A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. . . . Thus, governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest.

80 L.Ed.2d at 100-01. Thus, chemical analysis that could reveal an arguably private fact would constitute a search requiring prior judicial approval.

Such a case is United States v. Mulder, 808 F.2d 1346 (9th Cir. 1987). In Mulder, the court suppressed evidence discovered during sophisticated laboratory testing that might have revealed a "private fact":

We consider [Jacobsen] determinative of the instant case. The facts here are sufficiently different from those in Jacobsen that we do not believe its "field test" exception to the warrant requirement can be extended to the case at bar. First of all, this case does not involve a field test, but a series of tests conducted in a toxicology laboratory several days after the tablets were seized. Secondly, the chemical testing in this case was not a field test which could merely disclose whether or not the substance was a particular substance, but was a series of tests designed to reveal the molecular structure of the substance and indicate precisely what it is. Because of the greater sophistication of these tests, they could have revealed an arguably private fact. . . .

While the circumstances of the visual search and seizure did not infringe the fourth amendment, and undoubtedly provided probable cause to seek a warrant, these circumstances do not justify a further extension of the Jacobsen field test exception to the warrant requirement. Accordingly, the judgment of the district court is reversed, and the cause is remanded for further proceedings.

808 F.2d 1348-49. See also, United States v. Upton, 763 F.Supp 232 (1991).

1. Phone trap investigations.

Some police agencies have taken to placing phone traps and pen registers on the phones of suspects. This leads to other suspects whose phones are also monitored. These devices don’t record conversations; they just record who calls and who is called.

After about a year they take the collective results and make charts about who calls whom. It doesn’t take too many calls to become a suspect. Then the investigation comes down.

If the police managed to get a warrant for your house based on this, let’s hope that you have followed the rules of hygiene. If not you will need a lawyer. One technique that worked in one of my previous phone trap cases might work for you. In this case the police had identified two dozen different locations they suspected. They got warrants for some of them, the rest they managed to search by using a “knock and talk.” (This technique is discussed later in this writing.) My investigator contacted every residence that was searched and interviewed the occupants. The picture that developed was terrifying. Out of 24 residences searched, only two grow rooms were discovered. But in the course of the investigation nearly half of the individuals contacted were subjected to bullying that shocked even the prosecutor. Picture a bad movie about the Nazis from about 1941. Drug dogs leaving turds on the couch while the officers laugh. Citizens treated to gratuitous violence and terrorism beyond belief. My case turned into a misdemeanor over night.

1. Surveillance of suspected grow ops.

Where police suspect a grow operation but don’t know who all is involved, they may show remarkable patience in their investigation. Periodic drive-by surveillance over the course of several months is not unusual. Where that doesn’t yield results a camera will be placed in a neighbor’s yard or in a disguised surveillance vehicle parked in the neighborhood. License numbers and faces of all persons coming and going from the suspected residence will be recorded. Some of these cameras are remarkably small and virtually impossible to detect.

If you spot the camera, don’t let on. Resist the temptation to walk up and look at it, or to parade in front of it wearing Richard Nixon masks. If the police see that you are on to them, they will simply wait until they see you leaving carrying bags or other things that could contain plants, and then stop you. Once you are out of the house, your protection from warrantless search is considerably less. How you deal with the problem if you come across this kind of surveillance is not something that a lawyer can advise you about. Suffice it to say that any suspicious activity that looks like dismantling the grow or taking out some of the product will result in aggressive action by the police.

When it comes time to defend the case be sure to interview the neighbor who has allowed the police to spy on his neighbor using the privacy of his residence to conceal it. It may even be necessary to inspect his home to get a better understanding of the perspective of the camera. In other words, treachery should never go unpunished – just stay within the law while carrying it out.

1. Emergencies and other random events.

Murphy’s law states: “If something can go wrong it will.” Anyone who lives in the real world knows this is not wry humor; it is a basic law of probability. For the grower this means “if someone can stumble on it, they will.” Fire and other emergencies, as well as meter readers, tax assessors, landlords doing repairs, and nosy neighbors must be anticipated. If the fire department enters your home without a warrant, as they will if they are called, whatever they see is fair game. Medical emergencies also provide an opportunity for strangers to spy on you. If the landlord comes in illegally it still doesn’t result in suppression of the evidence. Nosy neighbors, contractors, and displeased landlords are not limited by the rules that supposedly restrict the police. They can trespass, break and enter, and do pretty much what they want in search of information about what you are doing in your home. When they tell it to the police, you become fair game, even if the information is gained by means that would be unavailable to the police.

5. The search warrant was based on false information – so what?
6. Does the Constitution require that challenges be permitted?

The rule that a search warrant must be judged by the information contained within the "four corners" of the face of the affidavit is not absolute. Certain challenges to warrants which appear on their face to be valid are grudgingly permitted. They are called “sub-facial” challenges.

The most frequent avenue, and the most difficult, involves a challenge based upon misrepresentations in the affidavit which have the result of misleading the magistrate who issues the warrant. The Washington rule on this subject began with State v. Goodlow, 11 Wn. App. 533, 535, 523 P.2d 1204 (1974):

[A] defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material. . . .

However, once such a hearing is granted, more must be shown to suppress the evidence. Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. A completely innocent misrepresentation is not sufficient . . . . [E]vidence should not be suppressed unless the officer was at least reckless in his misrepresentation. Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. . . . However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. . . . [8]

The rule we announce today is intended only to test the credibility of government agents whose affidavits or testimony are before the magistrate. The two%u2011pronged test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 . . . sufficiently tests the credibility of confidential informers. Consequently, defendant may not challenge the truth of hearsay evidence reported by an affiant. He may, after a proper showing, challenge any statements based on the affiant's personal knowledge, including his representations concerning the informer's reliability, his representation that the hearsay statements were actually made, and his implied representation that he believes the hearsay to be true.

This was a practical rule, encouraging truthfulness and professionalism in the process by which the police gain access to a citizen's castle. Search warrants are an area where truthfulness and professionalism need some encouragement. For example, after a study of pol­ice con­duct made while he was a pros­ecut­ing at­tor­ney, one author con­clu­ded that the temptation for police to distort facts in search warrant affidavits rather than lose convictions was so strong that rules governing searches "should serve to deter, rather than to encourage submission to the strong urge to commit perjury." Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury, 1971 U. Ill. L.F.

Another commentator observed:

Though commentators are not in agreement as to the extent of police perjury, . . . it does seem fair to say that 'the threat of police perjury is much greater than most courts are willing to acknowledge.'

1 LaFave SEARCH AND SEIZURE at 704.

A recent study by a special committee of the American Bar Association reached conclusions which would also argue for the prophylactic rule of State v. Goodlow. After a study which considered the opinions of law enforcement as well as the defense bar, the Dash Committee concluded that the constitution, and in particular the exclusionary rule, does not impede effective law enforcement, but rather that it protects fundamental rights at a very low cost, while encouraging the professionalism which is essential to good law enforcement in a Democracy.[9]

Nevertheless, the rule we live with is much less prophylactic. The United States Supreme Court rejected the rule of absolute suppression where perjury was demonstrated, and adopted the more forgiving rule we must work with today. In Franks v. Delaware, 438 U.S. 154, 155-56, (1978) the Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Id., 98 S.Ct. at 2676-77.

1. What inaccuracies jeopardize a warrant?

i.) Lies

Franks addresses this question specifically. The defendant must show "that a false statement knowingly and intentionally, or with reckless disregard for the truth was included by the affiant in the warrant affidavit." There is a clear difference between this and the Goodlow rule where suppression could result upon the showing of (1) any misrepresentation by the government agent of a material fact, or (2) any intentional misrepresentation by the government agent, whether or not material. Under the current rule, the government is only responsible for inaccuracies where the defendant can show either a specific intent to mislead, or reckless disregard for whether or not the magistrate is misled. Negligent misleading, even if it is clearly material or even critical, does not require suppression. The difficulty of meeting a burden which requires a showing of the state of mind of an officer who may be a professional liar is obvious.

Without commenting about the difference between the Goodlow test and the Franks test, Washington approved the latter in State v. Sweet, 23 Wn. App. 97, 596 P.2d 1080 (1979).

ii.) Omissions

Franks did not discuss the question of omissions which may have the same misleading result as affirmative misrepresentations. Nevertheless, most courts have assumed that misleading omissions could also result in suppression. In State v. Cord, 103 Wn.2d 361, 693 P.2d 81 (1985), our supreme court observed that:

[t]he Franks test for material misrepresentations has also been extended to material omissions of fact. United States v. Martin, 615 F.2d 318 (5th Cir. 1980); United States v. Park, 531 F.2d 754, 758%u201159 (5th Cir. 1976).

The court declined to adopt the more demanding test of People v. Kurland, 28 Cal.3d 376, 618 P.2d 213, 168 Cal.Rptr. 667 (1980), cert. denied, 451 U.S. 987 (1981). Kurland held that:

negligent omission of a material fact requires insertion of the fact omitted into the affidavit. If the affidavit then does not support a finding of probable cause, the warrant is void and the evidence obtained is excluded.

Cord, at 103 Wn.2d 368.

Nevertheless, it appears that, where material omissions are found, and it is further found that their omission -- and their misleading impact -- was intentional or at least reckless, the "add and retest" formula appears to be the law. See, e.g., United States v. DeLeon, 979 F.2d 761, 763 (9th Cir. 1992); State v. Garrison, 118 Wn.2d 870, 873 (1992):

If. . . the false representation or omitted material is relevant to establishment of probable cause, the affidavit must be examined. If relevant false representations are the basis of attack, they are set aside. If it is a matter of deliberate or reckless omission, those omitted matters are considered as part of the affidavit. If the affidavit with the matter deleted or inserted, as appropriate, remains sufficient to support a finding of probable cause, the suppression motion fails and no hearing is required. However, if the altered content is insufficient, defendant is entitled to an evidentiary hearing.

iii.) Whose lies or omissions?

Franks allows recourse only when the misrepresentation is that of a government agent. Informants are not government agents. In rare cases it may be possible to show that the informant's relationship with the government was so close that the informant may be considered a government agent for fourth amendment purposes. State v. Thetford, 109 Wn.2d 392, 745 P.2d 496, (1987).

Nor can the police insulate one officer's misstatement merely by relaying it through an officer/affiant personally ignorant of its falsity. United States v. DeLeon, 979 F.2d 761, (9th Cir. 1992).

Probable cause may not be enhanced in the process of communication between one officer and another. This is the holding of Whiteley v. Warden, 401 U.S. 560, 568 L.Ed.2d 306, 91 S.Ct. 1031 (1971):

Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

iv). Consequences of inaccuracies

If it is shown that an affiant was intentionally or recklessly misleading exclusion of the evidence will result only if the false statements were necessary to the finding of probable cause. Where the offending act is that of omission, the same rule applies, although in this context it is the intent to mislead, rather than the intent to omit which triggers the exclusion. United States v. Colkley, 899 F.2d 297, (4th Cir. 1990).

Worthy of note here is that a misrepresentation adequate to require suppression under Franks cannot be avoided by the "good faith" doctrine of United States v. Leon, 468 U.S. 897 (1984), since Leon expressly stated that its holding left Franks untouched.

1. Procedures: getting a Franks hearing

The first step here is to get a judge to order a Franks hearing. To accomplish this, the defendant must make a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant," and that "the allegedly false statement is necessary to the finding of probable cause. . . ." Franks, at 438 U.S. 155-56. The showing is difficult:

To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be

[1] allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by

[2] an offer of proof.

[3] They should point out specifically the portions of the warrant affidavit that is claimed to be false; and they should be

[4] accompanied by a statement of supporting reasons.

[5] Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

[6] Allegations of negligence or innocent mistake are insufficient.

[7] The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

[8] Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

438 U.S. at 171.

Important here is State v. Casal, 103 Wn.2d 812, 699 P.2d 1234, 1238 (1985) where the court en banc[10] held that fairness requires that the defendant's burden under Franks to make a threshold showing be reduced where "the defendant lacks access to the very information that Franks requires for a threshold showing of falsity." See, also, State v. Thetford, at 109 Wn.2d 403:

Although Franks requires a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit before a defendant is entitled to an evidentiary hearing, Franks also holds that the showing need only be preliminary. Thus, defendants are not required to prove their charges by a preponderance of the evidence before being entitled to a Franks hearing. It is only at the hearing itself that defendants, aided by testimony and cross examination, must prove their charges by a preponderance of the evidence. See Franks v. Delaware, 438 U.S. 154, 156, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978);. . .

Professor LaFave comments:

One thing is clear: in a case involving an anonymous informant, the defendant should not be deemed to have failed in his "threshold showing" merely because he has no information as to whether the informant lied to the officer-affiant (no Franks violation) or the officer-affiant lied to the magistrate. "A number of . . . courts have acknowledged this dilemma in anonymous-informant cases and have refused to apply Franks so inflexibly as to make hearings unattainable" in such circumstances. Another possible way of dealing with this predicament is to afford the defendant discovery on grounds short of those required under Franks for an evidentiary hearing.

2 LaFave, SEARCH AND SEIZURE (1987), at p. 45-46 of 1993 pocket part.

Most courts will not accept live testimony as a part of the proffer. Affidavits are the usual format. ER 104(a) allows the court to dispense with the Rules of Evidence, except for privilege.

Your proffer is a matter of your own ingenuity. The blatant cases are easy. More difficult are the cases where the misrepresentations are more significant in their totality than individually. Here is an example of a presentation form I have used:

THE AFFIDAVIT: "Clark brought up to 'Skeeter' the subject of a grow operation he helped maintain in the Maltby area (marijuana grow)."

THE TRUTH: Clark told Skeeter he wanted to purchase marijuana, and Skeeter said he didn't have any, but maybe could get some later. Asked where he was getting it, "[h]e said that, through the conversation, that he was getting it from the same place that he was getting it from and whatnot like that." Clark admitted that Skeeter made no mention of any particular location more specific than "the same place."

THE AFFIDAVIT: "Clark knew about this as he had previously helped 'Skeeter' in the maintenance of the marijuana plants and had been to the growing location numerous times."

THE TRUTH: Clark stated that he had only been there once, did not help with maintenance, and had not told Detective Bales that he had been to the grow operation numerous times. He also stated that he had never seen anyone pick up any marijuana at the Defendant's residence.

THE AFFIDAVIT: "[T]hese outbuildings were indicated by Clark as being where the plants were normally grown."

THE TRUTH: Clark stated specifically that he had only seen marijuana in one building.

1. The Franks hearing

Franks provides:

[At the hearing] the allegation of perjury or reckless disregard [must be] established by the defendant by a preponderance of the evidence.

This means that the defendant's initial burden is to prove not only that the challenged statements were in fact false, but also that their inclusion amounted to perjury or reckless disregard for the truth.[11] Where the challenge is to omitted facts, it must be shown that they were omitted with intent to mislead, or with reckless disregard for whether or not the affidavit was misleading in their absence. United States v. Colkley. For some time, the applicable rule acknowledged the fact that the state of mind of the officer would always be difficult to prove, and that therefore, on some occasions, recklessness may be inferred from the critical nature of the statement or omission. In his dissent in State v. Cord, Chief Justice Williams observed:

The materiality of the omission to the finding of probable cause is the threshold issue. Nonmaterial, peripheral omitted facts have no effect on the determination of probable cause and are not entitled to review. However, once a fact is determined to be material, it is very difficult to justify its absence. If inclusion would affect the probable cause determination, then it should be included.

As noted in United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980): [I]t will often be difficult for an accused to prove that an omission was made intentionally or with reckless disregard rather than negligently unless he has somehow gained independent evidence that the affiant had acted from bad motive or recklessly in conducting his investigation and making the affidavit. Nevertheless, it follows from Franks that the accused bears the burden of showing by a preponderance of the evidence that the omission was more than a negligent act. It is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself. (Italics mine.)

State v. Cord, at 103 Wn.2d 372. See, also, United States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982). (Materiality and recklessness are closely related. When the misrepresentation is critical to the finding of probable cause, "the fact of recklessness may be inferred from the [misrepresentation] itself.")

This rule, which on its face makes good sense, was adopted by the Court of Appeals in State v. Jones, 55 Wn. App. 343, 777 P.2d 1053 (1989). Unfortunately, the rule was short-lived. In State v. Garrison, 118 Wn.2d. 870 (1992), the Washington Supreme Court, En Banc, with Justices Utter and Anderson not participating, adopted a rule based upon dictum[12] in United States v. Colkley, 899 F.2d 297, (4th Cir. 1990):

To prove reckless disregard of the truth, as is defendant's burden, defendant relies solely on State v. Jones, 55 Wn. App. 343, 777 P.2d 1053 (1989) which seems to hold that an inference of reckless disregard must be made from the omission of facts "clearly critical to a finding of probable cause". The Court of Appeals relied on State v. Jones, supra, and dicta in United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). . . .

Relying on such an inference to establish reckless disregard is not proper. The court in United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) cogently recognized the error in such reliance: "[S]uch an inference collapses into a single inquiry the two elements %u2011 'intentionality' and materiality' %u2011 which Franks states are independently necessary.

The test, according to Colkely, is whether the affiant had an intention to mislead. Since the facts omitted in Colkley were not material, and therefore not "clearly critical" to the probable cause determination, it didn't matter, and the rejection of the rule which would allow an inference of recklessness in certain circumstances is but dictum. Nevertheless, dictum in Colkley became law in Garrison. The defendant must prove that omissions were either made with the intention to mislead, or made with reckless disregard for the misleading consequences of the omission. Remarkably, suppression will not result, even if the omission was clearly critical to a finding of probable cause, unless something can be shown about the affiant's state of mind. This may be an impossible burden, although it may be approached tangentially by arguing that the affiant had reasons to doubt, or in fact "entertained serious doubts as to the truth of his [allegations]. United States v. Williams, 737 F.2d 594 (7th Cir. 1984). Recklessness is shown

where the affiant "in fact entertained serious doubts as to the truth" of facts or statements in the affidavit. Davis[13], at 694 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968)). Under Davis, such serious doubts can be shown by (1) actual deliberation on the part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

State v. O'Connor, 39 Wn. App. 113, 118, 692 P.2d 208 (1984). O'Connor and its progeny remain good law, and may still be of value in arguing that the clear materiality of the fact gave the affiant "obvious reasons to doubt. . . ."

Having established intentional or reckless manipulation of the truth, you have still not achieved your goal of suppression. Clearly, the affidavit must be reconstructed, with the perjury stricken, and the material omission added. Here is where a secondary burden of proof becomes significant. The initial magistrate's decision to approve a warrant is ordinarily reviewed deferentially at every level. The law favors search warrants and close cases are decided in favor of the warrant. State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984). In other words, search warrants, on their face, are presumed to be valid. But what of an affidavit which is shown to be materially misleading? Does the presumption still favor the warrant? Although the issue was not before the Garrison court, it was nevertheless addressed:

The challenged information must be necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 156, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). The Court of Appeals' statement confuses materiality or relevance as it relates to establishment of bad motive with the separate inquiry whether the information is necessary to the probable cause determination. See United States v. Reivich, 793 F.2d 957 (8th Cir. 1986). A court finding "materiality" in the sense that an omission may be said to rise to the requisite level of misrepresentation under Franks may think it has made the second Franks finding and may invalidate a warrant after concluding only that the additional information might have affected the probable cause determination and not that the supplemented warrant could not have supported the existence of probable cause. Reivich, at 962. See, Colkley, at 301 ("[o]mitted information that is potentially relevant but not dispositive is not enough to warrant a Franks hearing."

118 Wn.2d at 875.[14]

It is unfortunate that our state supreme court chose to venture into this area without the benefit of adequate briefing. Strong arguments support the position that where intentional or reckless misleading has taken place, the presumption which favors search warrants is vitiated, -- in fact, capsized -- and the matter should be dealt with as though there were no warrant: the presumption should favor suppression. State v. Buccini, 810 P.2d 178 (Arizona Supreme Court, En Banc, 1991) so holds. In Buccini, a consent search was followed by a search based upon an affidavit which the trial court found to be materially misleading. The court held:

Although in most instances a magistrate's finding that sufficient probable cause exists to issue a search warrant will not be overturned unless it is clearly erroneous, this rule does not apply when a trial court reviews an affidavit that was submitted to the magistrate and later found to have been supported by false statements. . . . Under these circumstances, the trial court must undertake an independent review of the effect of the false statements on probable cause because "the question turns on the consequences of a fraud on the issuing magistrate which that magistrate was not in a position to evaluate."

810 P.2d at 183. (Emphasis in original, citations omitted.)

The Buccini court continues:

The rule in non-Franks cases considers the general presumption of validity of a search warrant and the deference given to a magistrate's determination of probable cause in concluding that in a "doubtful or marginal case a search under a warrant may be sustainable where without one it would fail." See, 2 LA FAVE, SEARCH AND SEIZURE ' 4.4 at 199 (2d ed. 1987) (quoting United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). The same rule, however, does not apply to a Franks case. To the contrary:

[W]hen it has been established that the earlier finding of probable cause was based upon a broader set of "facts," some of which are now shown to be false, there is no longer any reason to give deference to that earlier finding. Thus, when a court reassesses a search warrant affidavit with the false allegations excised, a "doubtful or marginal case" should be resolved in the defendant's favor. That is, in such circumstances the probable cause determination should be made as it would upon a motion to suppress evidence obtained without a warrant.

Id.

The policy underlying Franks seeks to mitigate the dangers of the ex parte procedure used to obtain a search warrant, and to deter over-zealous officers from supplying false information in their efforts to obtain access to the constitutionally protected privacy of one's home or car. See Franks, 438 U.S. at 168-169, . . . . We firmly adhere to these policies and believe that where the officer has deliberately or recklessly made material misstatement and omissions in the original affidavit, it is appropriate to resolve marginal probable cause determinations in such a manner as will best uphold the integrity of the fourth amendment.

810 P.2d at 186.

Two wiretap cases also support this rule, although wiretaps, unlike search warrants, begin with the presumption that they are not constitutional. In United States v. Carneiro, 861 F.2d 1171, 1176, 1182 (9th Cir. 1988), the court held that fruits of a wiretap would be suppressed for material misrepresentations where, if given the true facts, "a reasonable district court judge could [not should] have denied the application . . . ." United States v. Ippolito, 774 F.2d 1482, 1486-87 (9th Cir. 1985) upon which Carneiro is based, holds the same.

The integrity of the procedures before the judge or magistrate who issues a search warrant requires meticulous scrutiny. Since a search warrant is issued ex parte, "the magistrate's only check on the affiant's veracity is a search for internal consistency . . . ." 2 LA FAVE, SEARCH & SEIZURE (2d ed. 1987) at 187. Evidence that the affiant has misled the magistrate, and thus undermined the usual presumption supporting the magistrate's decision, properly will result in exclusion:

. . . The Fourth Amendment exclusionary rule by its nature bars reliable evidence. And as the court has repeatedly emphasized, the primary justification for the exclusion is to serve the deterrence function. When the cause of exclusion is the actions of the officer-affiant misleading the magistrate, certainly that function is being served particularly well."

2 LA FAVE at 188.

1. Future development of the rule

State v. Garrison has taken much of the punch out of Franks. The determined practitioner should remember that the Franks rule has been adopted by the Washington courts with only superficial analysis and with very little thought to its inadequacies. Fortunately, Garrison, a case which seizes upon shallow dictum from the most miserly cases among Franks' progeny, did not consider any independent State Constitutional arguments. Garrison's most offensive language is also dictum. Whether recklessness has some relationship to materiality, and whether the presumption shifts when misrepresentations are shown are two issues on which Garrison may be vulnerable.

Professor LaFave criticizes the Franks rule lavishly. His treatise contains many seed from which good arguments may be sprouted. The early favorable treatment of this subject in this state, as reflected in Jones and Goodlow, and the relatively superficial analysis with which this excellent rules were abandoned should be viewed as a challenge to us all -- an invitation to State constitutional litigation.[15]

6. Other sub-facial challenges to search warrant
7. Information tainted by prior unlawful police conduct

Often the unlawful police conduct takes place before the warrant is secured, and forms a part of the probable cause for the warrant. For example, where the fruit of a prior unlawful trespass, unlawful search, unlawful arrest, or a coerced (invalid) consent is included in a search warrant affidavit, the offending information must be removed, and the remaining information examined to determine whether it still establishes probable cause. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L.Ed. 319, 40 S.Ct. 182 (1920); State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). This argument is particularly useful where evidence offered in support of the warrant request is the result of a trespass, see State v. Petty, 48 Wn. App. 615 (1987), or other unlawful conduct.

1. Trespass onto private property

Very often in order to make the observation on which they base probable cause, police must trespass on private property. This may be an interesting and fruitful area.

Federal law allows police to do whatever they want until they reach "curtilage." Police, without a warrant, may ignore fences and even "no trespassing" signs which do not define the curtilage. As a practical matter, if you live in a remote area or on large piece of land, the feds can trespass without a warrant. They can come to the “curtilage.” This is where it gets fuzzy. From a practical matter, the curtilage is the area immediately surrounding your home where you would expect to have complete privacy. An outbuilding 50 yards away from the residence might not get that same protection. It helps if it’s in the same fenced, landscaped area as the residence, and it’s not visible from the public road.

A posted locked gate is useful too, although absent some conspicuous excuse other than crime, most local law enforcement considers locked gates to be probable cause.

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