State v. Milosevich

883 P.2d 898, 131 Or. App. 51, 1994 Ore. App. LEXIS 1542

• Court: Court of Appeals of Oregon
• Decided: October 26, 1994
• Docket: 10-92-09745A; CA A80779 (Control); 10-92-09745B; CA A80780
• Status: Published

Opinions

EDMONDS, J.

In these two cases, consolidated for appeal, the state appeals from an order suppressing evidence found at the defendants’ residence. ORS 138.060. The court held that the affidavit supporting the search warrant was legally insufficient. We reverse.

A search warrant was issued for the Eugene residence of both defendants based on the affidavit of a Lane County Deputy Sheriff. The affidavit described the discovery by Forest Service officers of a marijuana “plantation,” containing 19 plants.¹ An alarm and camera system were installed to monitor traffic to and from the site. On August 15,1992, at approximately 8:30 a.m., the alarm was activated. At approximately 9:00 a.m., a United States Forest Service (USFS) officer and an Oregon State Police officer arrived at the site, where they observed and photographed two suspects for approximately one and one-half hours cultivating marijuana.

After the suspects left, a USFS special agent followed their car and arranged to have it stopped to identify the suspects. The car was stopped in Veneta approximately 40 minutes later by a Lane County Sheriffs officer. The officer identified the suspects as Eric Mason and defendant Steven Milosevich. The officer also told the affiant that “he could detect an odor of growing marijuana in and around this vehicle, but could not pinpoint an exact point of origin.” The special agent also determined that Mason was the registered owner of the car and traced his address to defendants’ residence. Mason’s car was later observed parked outside that residence. The special agent also determined that defendant Steven Milosevich “had seven prior arrests for controlled substance violations and one arrest for a weapons violation,” and that Mason had two previous arrests for possession of less than one ounce of marijuana.

In a marijuana growing case, an affidavit must satisfy two requirements in order to support a search warrant of a residence. First, the affidavit must set forth objective observations sufficient to allow a disinterested magistrate to conclude that there is probable cause to believe that there is a relationship between the people residing on the premises and the marijuana plants. Second, the affidavit must contain additional facts to support probable cause to believe that marijuana, a certain kind of implement of cultivation or paraphernalia for processing or sale of marijuana is probably in the building to be searched. State v. Anspach, 298 Or 375, 381, 692 P2d 602 (1984). This case involves the application of the second requirement.

In State v. Evans, 119 Or App 44, 849 P2d 539 (1993), we addressed the second requirement. In that case, a search warrant was issued for the defendants’ residence. The affidavit stated that a special agent had discovered two marijuana gardens on government land, approximately two miles apart, that one of the defendants was seen tending the plants, and that his address had been traced through the license plate of the truck he was driving. The residence was at least 35 miles from the gardens. There was no information in the affidavit about the defendants’ past involvement in drug-related activity. It also contained a statement that it was within the affiant’s knowledge that it was common practice among marijuana growers to use residences to package harvested marijuana for distribution. We said that the affidavit

“contained no facts about any activity at the home except for defendants’ living there. There were no facts indicating that defendants had been harvesting or transporting the plants, or that any tools used to care for the plants were taken from the home to the site. The officer’s recitations of his professional experiences provided the only fink between the residence and the marijuana plants.” 119 Or App at 46. (Emphasis supplied.)

We held that the officer’s professed knowledge of the common practices of people who grow, distribute and sell marijuana did not suffice to furnish the missing facts that created probable cause that the particular residence contained marijuana.

One difference between this case and State v. Evans, supra, is that here, an officer detected “an odor of growing marijuana in and around” Mason’s car when it was stopped after it left the plantation. (Emphasis supplied.) When that fact is considered with the fact that the car had just come from the marijuana plantation, an inference arises that marijuana was being harvested and transported in Mason’s car to defendants’ residence. Defendants rely on the fact that the affidavit states that there were 19 marijuana plants at the time the officers made their observation and that several days later, an officer accounted for all 19 plants. Moreover, there is nothing in the affidavit to indicate that the two officers observed Mason and defendant harvesting any of the plants. However, the officers arrived at the garden approximately 30 minutes after the alarm was activated and, even after arriving, they remained 35 to 40 yards away. The information relied on by defendants does not negate the inference that some marijuana was put into the car before the officers arrived or while it was out of their sight. The affiant stated that

“persons who grow marijuana frequently do so in cycles, that it is common for these persons to have a mature grow and then another starter grow in their residence. I know that marijuana grown in outdoor locations is generally harvested then taken to an indoor location to be dried, manicured, weighed and packaged for distribution. It has been my experience that this harvested marijuana is almost always taken to the grower’s residence to be processed. The drying of these plants is initiated soon after harvest to avoid damage from mildew.”

We hold that when the totality of the facts is considered, including the fact that the odor of growing marijuana emitted from Mason’s car and that both occupants had a history of drug involvement,² it is sufficient to lead a reasonable person to believe that seizable things would probably be found at defendants’ residence.³

Reversed and remanded.

1 The plants were scattered in three gardens.

2 See State v. Seven, 91 Or App 506, 509, 755 P2d 747 (1988).

3 The dissent says that there are no facts that demonstrate that seizable evidence would be found at the residence of the car’s occupants. It ignores the fact that the officer smelled the odor of “growing” marijuana emitting from a car that had just come from a marijuana “plantation’ ’ and that was later observed outside the residence of the car’s occupants. In the light of those facts and the affiant’s experience, there is probable cause to believe that harvested marijuana would be found at the residence. See State v. Villagran, 294 Or 404, 415, 657 P2d 1223 (1983).