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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent, v. DARREN JAMES HARRELL, Appellant. ) ) ) Appelwick, J. -- Darren Harrell was found guilty of manufacturing marijuana in violation of the Uniform Controlled Substances Act, chapter 69.5 RCW, following a bench trial on stipulated evidence. Harrell contends that the police lacked probable cause to obtain the warrant authorizing the use of a thermal heat imaging device and a narcotics detection dog to search his property. Harrell also claims that misstatements in the affidavit supporting the warrant render the warrant invalid. We affirm. FACTS On May 1, 2008, a confidential informant contacted Detective Matthew Volpe of the King County Sheriff's Office to provide information about a marijuana grow operation in exchange for leniency on his pending nonviolent ) ) ) ) ) ) ) No. 64329-1-I DIVISION ONE UNPUBLISHED OPINION FILED: November 15, 2010

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misdemeanor marijuana charge. The informant provided a description of Harrell and the car he drove. He claimed that he had been to a house in Bothell where Harrell showed him a marijuana grow operation. The informant believed that Harrell did not live in the house full-time. He reported that Harrell has been known to use video surveillance equipment, has a long drug history, and has access to weapons. The informant feared retaliation from Harrell if his identity were revealed. Detective Volpe's investigation confirmed Harrell's name, physical description, address, and license plate. Detective Volpe visited the Bothell

house and found it very unkempt compared to other houses in the neighborhood. He observed several newspapers on the driveway and porch and noted that all the windows were covered with curtains or blinds. He knocked on the door several times and heard noises from inside, but nobody answered. Detective Volpe also spoke with two neighbors, both of whom wished to have their identities kept confidential. One neighbor described Harrell and his car and indicated that Harrell did not socialize with the other neighbors, that Harrell seemed suspicious, and that Harrell once joked that he had a marijuana grow operation in his house. The other neighbor kept in contact with Detective Volpe over a two month period, identified Harrell's car, reported being unsure of whether Harrell actually lived in the house, and stated that the lights were on constantly inside the house. Detective Volpe also learned from a records search that Harrell had reported a burglary a year earlier at his previous apartment, involving a theft of 2

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guns. The report indicated that Harrell had a video camera recording of the break-in and that the suspects were identified and charged. On July 3, 2008, Detective Volpe described his investigation in an affidavit requesting a search warrant authorizing the use of a thermal heat imaging device and a narcotics detection dog on the outside of the Bothell house. A district court judge issued the warrant. The thermal heat image

indicated an unusually large amount of thermal energy emitting from the chimney. Deputy Miller of the K-9 Unit recognized the odor of growing marijuana and Narcotics Detection Dog Copper displayed multiple alerts outside the house. On July 7, 2008, based on the original affidavit plus an additional description of the results of the limited searches authorized in the first warrant, Detective Volpe obtained a warrant to search the house, Harrell, and Harrell's car. Police found a marijuana grow operation in the house and arrested Harrell, who admitted that he had been growing marijuana. The State charged Harrell with manufacturing marijuana. Harrell moved to suppress all evidence obtained in the search on the same grounds he asserts here. The trial court denied the motion. Harrell appeals. DISCUSSION We review the issuance of a search warrant for abuse of discretion, giving great deference to the issuing judge's determination of probable cause. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004); State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). We will generally resolve doubts about the existence of probable cause in favor of the validity of the search warrant. 3

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Chenoweth, 160 Wn.2d at 477. Review of the issuance is "limited to the four corners of the affidavit supporting probable cause." State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). Although we defer to the issuing judge's

determination, the trial court's assessment of probable cause on a motion to suppress is a legal conclusion that we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007). A judge may issue a search warrant only upon a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). Probable cause exists when the application sets forth "facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." State v. Atchley, 142 Wn. App. 147, 161, 173 P.3d 323 (2007). The affidavit should be evaluated in a commonsensical manner rather than hypertechnically. Jackson, 150 Wn.2d at 265. The issuing judge "is

entitled to make reasonable inferences from the facts and circumstances set out in the affidavit." Maddox, 152 Wn.2d at 505. But the supporting affidavit must be based on more than mere suspicion or personal belief that evidence of a crime will be found on the premises to be searched. Jackson, 150 Wn.2d at 265. Harrell first attacks the validity of the warrant on the ground that the informant was not credible. He maintains that the warrant fails to set forth facts that establish the informant's veracity and basis of knowledge about criminal activity at Harrell's house as required by Spinelli v. United States, 393 U.S. 410, 4

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89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984) (rejecting Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) abrogation of Aguilar/Spinelli). The Aguilar/Spinelli test requires the issuing judge to make a threshold determination about whether an informant has truthfully related facts (veracity) and whether an informant has personal knowledge of the facts (basis of knowledge). As to the basis for the informant's knowledge, Harrell claims that an observation "within the last three years" is too stale and indefinite and that the affidavit lacks any indication that the informant was familiar with living marijuana plants or grow operations. But, the affidavit indicates that the informant claimed to have been in the house "on several occasions within the last three years," that Harrell "showed him/her his marijuana growing operation in the house," and that "he/she was very familiar with the appearance and odor of marijuana." An

informant's personal observation of marijuana in the house at issue satisfies the basis of knowledge prong of the Aguilar/Spinelli test. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090 (1996) (informant who reported personally seeing marijuana, which defendant identified as marijuana, had sufficient basis of knowledge). Acknowledging that the informant had been arrested and hoped to trade information for leniency, Harrell complains that the affidavit does not include sufficient circumstances of the arrest to indicate truthfulness. Without citation to relevant authority, Harrell claims that the timing of the arrest, the identity of the 5

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arresting officer, or the circumstances under which the informant came into contact with Detective Volpe "could influence the assumption that an arrested informant bears some indicia of reliability." But, where an informant who has been arrested agrees to give information in exchange for favorable treatment, "`it is the "clearly apprehended threat of dire police retaliation should he not produce accurately" more so than the admission of criminal conduct which produces the requisite indicia of reliability.'" State v. O'Connor, 39 Wn. App. 113, 121-22, 692 P.2d 208 (1984) (quoting 1 W. LaFave, Search and Seizure

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