State v. Donahue

762 P.2d 1022, 93 Or. App. 341, 1988 Ore. App. LEXIS 1652
CourtCourt of Appeals of Oregon
DecidedOctober 12, 1988
Docket10-86-02896; CA A42583
StatusPublished
Cited by25 cases

This text of 762 P.2d 1022 (State v. Donahue) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donahue, 762 P.2d 1022, 93 Or. App. 341, 1988 Ore. App. LEXIS 1652 (Or. Ct. App. 1988).

Opinions

[343]*343RICHARDSON, J.

Defendant appeals his conviction for unlawful manufacture and possession of a controlled substance. He contends that the trial court erred in denying his motion to suppress evidence seized from a building on his property during the execution of a search warrant.

The warrant was based on an affidavit by Detective Gourley of the Oregon State Police. The sufficiency of that affidavit was the primary issue presented by defendant’s motion to suppress. He contends that there was no showing of probable cause to believe that he was growing marijuana in the building. We affirm.

The first several paragraphs of the affidavit set out Gourley’s training, experience and knowledge about indoor marijuana growing. The next several paragraphs relate information provided by two named informants. The first informant owned a building supply store and stated that he sold a large amount of plywood to defendant in the winter of 1984. He later noticed several individuals using plywood to line the interior of a large metal building on defendant’s property. He drove by the building later and noticed what he describes as a “false wall” built inside the building. The informant also stated that a young man who lives on the property purchased 19 rolls of heavy duty string on two occasions at his establishment. According to the affiant, his experience is that string is used by marijuana growers to secure the plants while they are growing and to hang them for drying after harvesting.

The affidavit discloses that the second informant was defendant’s neighbor. He described defendant as “unfriendly,” noting that the informant’s children were not allowed to cross the property to get to a school bus stop. He noted also that a wire enclosure had been erected at the back of the building and that two German Shepherd dogs had been placed there. The neighbor corroborated the information provided by the lumber supply store owner that an interior wall had been constructed inside the metal building and that the windows had been covered up. Both informants indicated that they had seen no sign of any commercial activity in the building, even though the occupants of the property had told them that they intended to establish a woodworking shop.

[344]*344A significant part of the affidavit concerned Gourley’s investigation of the amount of electricity consumed in the metal building. He noted a substantial increase in power usage and compared power consumption patterns in the building to likely levels that would be used for indoor marijuana cultivation. The affidavit said:

“I have found that the power to that particular residence, which is addressed as 28600 Lingo Lane, Junction City, Oregon is provided by the Emerald Public Utilities District. Their records show that there is a separate meter for the metal building on the property. Copies of their records are herein incorporated as Attachments A, B & C. Attachment A is the power readings for the previous owners for the time period of May 10,1984 through September 10, [1984]. Attachment B is the power reading for the previous owners for the time period of September 13,1984 through January 10,1985. Attachment C is the power readings for Mr. Donahue for the time period of May 10,1985 through December 6,1985. In reviewing Attachments A & B they show the lowest monthly recorded power consumption being 160 kilowatt hours and the highest being 453 kilowatt hours. Attachment C shows the lowest monthly recorded power consumption being 1566 kilowatt hours and the highest as being 6177 kilowatt hours. The majority of the recordings on Attachment C range in the 5000-6000 kilowatt hour bracket. On April 2, 1986 I contacted authorities of the Emerald PUD and learned that the power usage for the metal building obtained on March 7,1986 was 5203 kilowatt hours.
“I know from my training and experience that it takes from three to six months to cultivate a crop of marijuana indoors to the point that it can be harvested. During that time the amount of light that is provided to the plants is increased to enhance the growth of the marijuana plants. In reviewing Attachment C a three month cycle can be seen where the power usage for the metal building climbs and then drops off to approximately 5000 kilowatt hours. I also know that persons that cultivate marijuana indoors frequently have crops of varying ages growing at the same time so that they can have a continual harvest. It is the plants that are nearing harvest that get the increased light. My training and experience also has shown me that marijuana growers will cut down the amount of light given to the plants in the last week before harvesting to simulate shorter days as would be present in the late fall when the plants would be nearing harvest in the outdoors. This is to facilitate a more enhanced ‘bud’ production to give the plant a chance to reproduce itself.”

[345]*345The day before the warrant was issued, Gourley went on the property with the power company’s meter reader and, while there, saw a large exhaust fan and smelled the odor of growing marijuana coming from the fan’s exhaust.

Defendant’s general contention is that the search warrant affidavit did not establish probable cause to believe that the building contained evidence of a criminal activity. His more specific arguments are that the officer’s observations while he was following the meter reader were the product of an illegal trespass and that the two named informants lack credibility.

We address the last contention first. The informants were named, their statuses, one a store owner and one a neighbor, were designated, and the direct observation basis of their information was disclosed. The information of each informant was corroborated by the independent statement of the other. The magistrate could properly credit the information supplied by the two informants.

The officer’s entry on defendant’s land with the meter reader was a trespass in violation of Article I, section 9, of the Oregon Constitution, unless there was express or implied permission for his presence. State v. Ohling, 70 Or App 249,688 P2d 1384, rev den 298 Or 334 (1984). The state argues that defendant does not have a reasonable expectation of privacy around the electric meter, because it is necessary for the meter reader to inspect it periodically. Additionally, the state argues, the expectation that the utility company will come on the property to service and read the meter is implied permission for persons to enter the area near the meter. State v. Corbett, 15 Or App 470, 516 P2d 487 (1973), rev den (1974). Although we can agree that there must be implied permission for a utility company employe to come on the property, we do not agree that that implied permission constitutes an open-ended waiver of defendant’s privacy. The police officer went on the property for the purpose of obtaining evidence of a criminal law violation and was not acting within the scope of the implied permission for a meter reader to come on the property. The officer’s trespass was unlawful, and the information derived from, that he saw an exhaust fan on the building and detected the odor of “growing marijuana,” must be excluded from the search warrant affidavit.

[346]*346 However, even after the information obtained by the trespass is deleted, the balance of the evidence in the affidavit is sufficient to support the issuing magistrate’s conclusion that there was probable cause to issue a warrant.

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Cite This Page — Counsel Stack

Bluebook (online)
762 P.2d 1022, 93 Or. App. 341, 1988 Ore. App. LEXIS 1652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donahue-orctapp-1988.