Shields, J.
The trial court suppressed evidence obtained pursuant to the execution of a search warrant and dismissed the State's prosecution of Edward A. Maxwell, presumably for manufacturing marijuana. The State appeals, contending the credibility of the informant was established as well as the reliability of his information and that the information in the affidavit established probable cause, not mere suspicion. We reverse and remand for trial.
The affidavit1 stated that the affiant, a member of the Tri-Cities Metro Drug Unit, had received information from [449] a citizen/neighbor informant regarding activities at a rental house at 4103 S. Kent. During a period of several months, the neighbor had personally observed two male subjects show up for short periods of time, unload their trailer in a closed garage, then leave. He reported the windows were covered with foil and the presence of three vehicles: a dark Chevrolet pickup, an old El Camino and a Chevrolet Nova. The citizen also overheard two subjects state "If we ever get caught doing this, we will be in prison forever."
The affiant attempted to corroborate the information provided by the citizen. He maintained surveillance of the property and reported the grass was dry and uncut, no garbage service was used and that the electrical usage was high for a residence that was unoccupied. He also identified the cars, and learned they were registered to Mr. Maxwell, David Bruises, and the third, described as a Nova but actually a Dodge, was registered to Ann F. Thorselt of Puyallup, Washington. Mr. Bruises was additionally described as having been charged in Oregon with manufacturing marijuana and pleaded guilty to possession of less than 1 ounce in 1978. Certain other stipulated facts were also before the trial court.2
[450] The trial court, in suppressing the evidence, questioned the lack of underlying facts to establish the credibility of the informant, stating his identity alone was insufficient under State v. Lair, 95 Wn.2d 706, 630 P.2d 427 (1981). It also found certain inconsistencies in the facts reported by the neighbor, so reasoned they did not meet the reliability prong of Aguilar-Spinelli.3 It disputed the basis for the conclusion the electrical usage was abnormally high, noting the law requires an identification of the person rendering that opinion. Finally, the court concluded the activities were nothing more than suspicious activity and held the affidavit was legally insufficient to establish probable cause to believe criminal activity was occurring.
We first address whether the affidavit sufficiently met the requirements of Aguilar-Spinelli.
It is well settled:
When an informant's tip forms the basis for a search warrant, the affidavit in support of the warrant must establish the basis of information and credibility of the informant in order to [451] evaluate the existence of probable cause. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984); see Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964).
State v. Franklin, 49 Wn. App. 106, 107-08, 741 P.2d 83, review denied, 109 Wn.2d 1018 (1987). The two prongs of the Aguilar-Spinelli test have independent status and both are required to establish probable cause. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984). However, if the informant's tip fails under either or both of the prongs, probable cause may be established by independent police investigation that "corroborates the tip to such an extent that it supports the missing elements of the Aguilar-Spinelli test." Jackson, at 438.
The trial court first concluded the credibility prong of Aguilar-Spinelli was not satisfied. However, the court overlooked the fact this was a known citizen informant, uninvolved in the activity next door. Given these circumstances, different rules apply. In State v. Rodriguez, 53 Wn. App. 571, 574-75, 769 P.2d 309 (1989), the court observed:
When police receive information from an uninvolved witness or victim of a crime, the necessary showing of credibility is relaxed. State v. Northness, 20 Wn. App. 551, 556, 582 P.2d 546 (1978). . . .
[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case. . . .
. . . The . . . modern view ... is that as a general proposition any person purporting to be a crime victim or witness may be presumed reliable, . . . Thus, courts frequently emphasize, in the course of holding that veracity was properly presumed, that the police were unaware of any "apparent motive to falsify" or that it did not appear to the police "that the accusations by the citizen were reported to the police merely to spite defendant." . . .
(Footnotes omitted.) 1 W. LaFave, Search and Seizure § 3.4(a), at 718-20 (2d ed. 1987).
Mr. Maxwell relies on State v. Lair, supra, which considered the reliability of a named informant who had delivered quantities of marijuana to the defendant. Lair, at 712 [452] (citing State v. Sieler, 95 Wn.2d 43, 48, 621 P.2d 1272 (1980)), held "[t]o the extent that the informant's name is the only information claimed to support his or her veracity, we have recently held that a mere name is insufficient." Lair can be distinguished, however, because it involved a person other than a citizen informant who was involved in the delivery of marijuana. Those facts are not present here. The informant's name was provided to the police and the magistrate, he was an uninvolved neighbor, and had obtained his information by firsthand observation conducted in an unsuspicious manner. Thus we conclude credibility was established.
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Shields, J.
The trial court suppressed evidence obtained pursuant to the execution of a search warrant and dismissed the State's prosecution of Edward A. Maxwell, presumably for manufacturing marijuana. The State appeals, contending the credibility of the informant was established as well as the reliability of his information and that the information in the affidavit established probable cause, not mere suspicion. We reverse and remand for trial.
The affidavit1 stated that the affiant, a member of the Tri-Cities Metro Drug Unit, had received information from [449] a citizen/neighbor informant regarding activities at a rental house at 4103 S. Kent. During a period of several months, the neighbor had personally observed two male subjects show up for short periods of time, unload their trailer in a closed garage, then leave. He reported the windows were covered with foil and the presence of three vehicles: a dark Chevrolet pickup, an old El Camino and a Chevrolet Nova. The citizen also overheard two subjects state "If we ever get caught doing this, we will be in prison forever."
The affiant attempted to corroborate the information provided by the citizen. He maintained surveillance of the property and reported the grass was dry and uncut, no garbage service was used and that the electrical usage was high for a residence that was unoccupied. He also identified the cars, and learned they were registered to Mr. Maxwell, David Bruises, and the third, described as a Nova but actually a Dodge, was registered to Ann F. Thorselt of Puyallup, Washington. Mr. Bruises was additionally described as having been charged in Oregon with manufacturing marijuana and pleaded guilty to possession of less than 1 ounce in 1978. Certain other stipulated facts were also before the trial court.2
[450] The trial court, in suppressing the evidence, questioned the lack of underlying facts to establish the credibility of the informant, stating his identity alone was insufficient under State v. Lair, 95 Wn.2d 706, 630 P.2d 427 (1981). It also found certain inconsistencies in the facts reported by the neighbor, so reasoned they did not meet the reliability prong of Aguilar-Spinelli.3 It disputed the basis for the conclusion the electrical usage was abnormally high, noting the law requires an identification of the person rendering that opinion. Finally, the court concluded the activities were nothing more than suspicious activity and held the affidavit was legally insufficient to establish probable cause to believe criminal activity was occurring.
We first address whether the affidavit sufficiently met the requirements of Aguilar-Spinelli.
It is well settled:
When an informant's tip forms the basis for a search warrant, the affidavit in support of the warrant must establish the basis of information and credibility of the informant in order to [451] evaluate the existence of probable cause. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984); see Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964).
State v. Franklin, 49 Wn. App. 106, 107-08, 741 P.2d 83, review denied, 109 Wn.2d 1018 (1987). The two prongs of the Aguilar-Spinelli test have independent status and both are required to establish probable cause. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984). However, if the informant's tip fails under either or both of the prongs, probable cause may be established by independent police investigation that "corroborates the tip to such an extent that it supports the missing elements of the Aguilar-Spinelli test." Jackson, at 438.
The trial court first concluded the credibility prong of Aguilar-Spinelli was not satisfied. However, the court overlooked the fact this was a known citizen informant, uninvolved in the activity next door. Given these circumstances, different rules apply. In State v. Rodriguez, 53 Wn. App. 571, 574-75, 769 P.2d 309 (1989), the court observed:
When police receive information from an uninvolved witness or victim of a crime, the necessary showing of credibility is relaxed. State v. Northness, 20 Wn. App. 551, 556, 582 P.2d 546 (1978). . . .
[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case. . . .
. . . The . . . modern view ... is that as a general proposition any person purporting to be a crime victim or witness may be presumed reliable, . . . Thus, courts frequently emphasize, in the course of holding that veracity was properly presumed, that the police were unaware of any "apparent motive to falsify" or that it did not appear to the police "that the accusations by the citizen were reported to the police merely to spite defendant." . . .
(Footnotes omitted.) 1 W. LaFave, Search and Seizure § 3.4(a), at 718-20 (2d ed. 1987).
Mr. Maxwell relies on State v. Lair, supra, which considered the reliability of a named informant who had delivered quantities of marijuana to the defendant. Lair, at 712 [452] (citing State v. Sieler, 95 Wn.2d 43, 48, 621 P.2d 1272 (1980)), held "[t]o the extent that the informant's name is the only information claimed to support his or her veracity, we have recently held that a mere name is insufficient." Lair can be distinguished, however, because it involved a person other than a citizen informant who was involved in the delivery of marijuana. Those facts are not present here. The informant's name was provided to the police and the magistrate, he was an uninvolved neighbor, and had obtained his information by firsthand observation conducted in an unsuspicious manner. Thus we conclude credibility was established.
The court also questioned the basis of knowledge prong, noting discrepancies in the number of windows which were actually covered with foil and the incorrect identification of one of the cars observed at the scene. As noted in State v. Smith, 110 Wn.2d 658, 663, 756 P.2d 722 (1988), cert. denied,_U.S._, 102 L. Ed. 2d 991, 109 S. Ct. 867 (1989); Rodriguez, at 574 (citing State v. Jackson, supra at 437), to satisfy the basis of knowledge test, the informant may state he has observed the facts personally and is passing on firsthand knowledge. Here, the discrepancies noted by the court in the number of windows covered with foil and the identification of the car as a Chevrolet Nova instead of a Dodge, are minor, were corrected by the affiant, and do not destroy the reliability of the other facts which were corroborated by the affiant. Thus, we conclude the reliability of the information was sufficiently established to satisfy the requirements of Aguilar-Spinelli.
The trial court also objected to the method by which the information on the electrical consumption was obtained because the information was procured from an unidentified power company employee by an informal inquiry of the investigating officer. The affiant admitted he merely called an unidentified acquaintance at the PUD and requested the information over the phone on the basis he was investigating a marijuana grow operation.
[453] In re Rosier, 105 Wn.2d 606, 615, 717 P.2d 1353 (1986) held that when a police officer has an articulable suspicion of illegal conduct, disclosure of otherwise private information is justified:
In the present case, the privacy interest in the power usage records is minimal; the information is fairly innocuous and reasonable persons would not be highly offended by its release. We admit that its release to police officers would "highly offend" anyone who engages in illegal activity, e.g., growing marijuana; but this person is not the appropriate measure of a "reasonable person". If the police have an articulable suspicion of illegal acts, the release of the records leads to effective law enforcement, thereby furthering the public interest. Accordingly, the electrical usage information should be released in this case.
Rosier was a consolidation of two cases, one in response to a request for a complete list of names and addresses for a political mailing and the other, to a request for electrical usage of particular customers by police officers which would have provided them with information to support probable cause in an affidavit for a search warrant.
In response to the "fishing expedition" or false claim of suspicion problem addressed in Rosier, the Legislature passed RCW 42.17.314:
A law enforcement authority may not request inspection or copying of records of any person, which belong to a public utility district or a municipally owned electrical utility, unless the authority provides the public utility district or municipally owned electrical utility with a written statement in which the authority states that it suspects that the particular person to whom the records pertain has committed a crime and the authority has a reasonable belief that the records could determine or help determine whether the suspicion might be true. Information obtained in violation of this rule is inadmissible in any criminal proceeding.
(Italics ours.) An application for a search warrant is not a "criminal proceeding", which commences by the filing of a complaint or information. Certainly the subscriber has no privacy interest in his name, which may be obtained by investigating authorities without a written request. Additionally, the statute specifically refers to an inspection or copying of utility records which is not necessary to obtain [454] the current usage for a particular address. Thus, we conclude for the limited purpose of supporting probable cause to obtain a search warrant, the statute is inapplicable.
Finally, the court concluded the information contained in the affidavit was no more than suspicious activity and did not constitute probable cause to support the issuance of a warrant. Probable cause is established when an affidavit sets forth facts sufficient for a reasonable person to conclude criminal activity is occurring. The issuing magistrate's determination of probable cause will be accorded considerable deference by appellate courts, with doubts as to the existence of probable cause resolved in favor of upholding the warrant. State v. J-R Distribs., Inc., 111 Wn.2d 764, 774, 765 P.2d 281 (1988). Here, the circumstances noted in the affidavit might have been viewed only as suspicious activities, absent the overheard statement ”[i]f we ever get caught . . ., we will be in prison forever." However, given that statement, we conclude what might have been construed as mere suspicion is raised to the level of probable cause. This conclusion is supported by the reality that grow operations have significantly increased in numbers and sophistication. Certain characteristics found in the recent cases which have come before this court are unique, even indigenous, to grow operations: houses are rented, but remain unoccupied; intermittent visits are made by persons who remain unfamiliar to other members of the neighborhood; activities of the persons visiting the premises are concealed; no effort is spent on exterior upkeep; foil and other materials are used to cover the windows; normal power usage continues or increases despite the fact the house is unoccupied. Other such characteristic circumstances are also recognized in the distribution, trafficking, sale and use of a multitude of controlled substances. Thus, the facts here are distinguished from those of State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986) which held the affiant's reliance on only two circumstances described by the court as "innocuous facts" (electrical consumption [455] records and the use of a high intensity light in the basement) was fatal to a finding of probable cause. "Reasonableness and common sense are key ingredients in discovering the absence or presence of probable cause." State v. Mejia, 111 Wn.2d 892, 898, 766 P.2d 454 (1989). Given this background, the circumstances cited in the affidavit and the statement made with respect to a possible prison term, it is reasonable to conclude a magistrate would find probable cause and issue the warrant.
Mr. Maxwell also contends the affiant omitted material facts from his affidavit: that he had approached the door to the residence at least seven times, but had never detected an odor of marijuana or the sound of ballasts or fans or the use of bright lights.4 Those assuredly would have been additional circumstances to support probable cause. However, we decline to make those circumstances prerequisites which must be met before the investigating officer can pursue the matter. While smell can be a critical factor and may be the only basis for issuance of a warrant, State v. Vonhof, 51 Wn. App. 33, 41, 751 P.2d 1221, review denied, 111 Wn.2d 1010 (1988), cert. denied,_U.S._, 102 L. Ed. 2d 782, 109 S. Ct. 790 (1989), the magistrate is allowed to draw reasonable inferences from the facts presented. Given the characteristic circumstances of a grow operation present here, it was not unreasonable to conclude criminal activity was occurring. See State v. Christiansen, 40 Wn. App. 249, 252, 698 P.2d 1059 (1985) (search of home and adjacent 60 acres allowed based upon presence of growing marijuana observed by aerial surveillance).
[456] The trial court's ruling suppressing the evidence and dismissing the prosecution is reversed and the cause is remanded for trial.
Green, J., concurs.