Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                        MARCH 13, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29567-2-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
DALE RAY HIGHTOWER,                             )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, C.J.  --  A Kennewick police officer detected marijuana odor emanating 

from Dale Ray Hightower.  The officer arrested Mr. Hightower, obtained a warrant, and 

searched Mr. Hightower's apartment.  Mr. Hightower challenges the denial of his motion 

to suppress by asserting that the officer had insufficient training and experience to detect 

marijuana odor.  But the evidence supports the court's finding that the officer had the 

requisite training and experience by virtue of his five years as an officer, training in 

narcotics, and numerous drug investigations.  The court's findings support its conclusion 

that probable cause existed to arrest Mr. Hightower and to support a search warrant.  We,

therefore, affirm the trial court's denial of the motion to suppress and affirm the 

convictions for possession of marijuana and possession of cocaine. 

No. 29567-2-III
State v. Hightower

                                            FACTS

       On January 13, 2010, Detective Christopher Slocombe and Detective Marco 

Monteblanco of the Kennewick Police Department responded to an anonymous tip that 

marijuana odor was coming from an apartment at 3320 West 9th in Kennewick, 

Washington.  Detective Slocombe determined that the odor was emanating from 

apartment D 9.  As the detectives knocked on the door, Mr. Hightower and a male 

companion approached the apartment. 

       Detective Slocombe immediately smelled marijuana coming from the men.  Mr. 

Hightower told Detective Slocombe that he lived in the apartment.  Detective Slocombe 
detained Mr. Hightower and read him his Miranda1 rights.  Detective Slocombe released 

the companion after determining that the marijuana smell was particularized to Mr. 

Hightower.  

       Mr. Hightower admitted to Detective Slocombe that he had marijuana on his 

person and that he had a bong and paraphernalia in his apartment.  One of the detectives 

removed a small bag of marijuana from Mr. Hightower's pocket.  Mr. Hightower refused 

to consent to a search of his apartment.  

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 29567-2-III
State v. Hightower

       Detective Slocombe obtained a telephonic warrant to search Mr. Hightower's 

apartment for narcotics and paraphernalia.  As a basis for the warrant, Detective

Slocombe told the judge that the smell of marijuana emanated from Mr. Hightower's 

apartment, and Mr. Hightower admitted possession of marijuana.  Detective Slocombe 

also presented his credentials to the judge.  He stated that he had served as a police 

officer with the Kennewick Police Department since March 2005, that he received 

training on narcotics investigation while completing his schooling at the Washington 

State Basic Law Enforcement Academy, and that he participated in numerous narcotics 

investigations and seizures.  Detective Slocombe did not receive training on detecting the 

odor of marijuana.

       Upon execution of the warrant, the detectives found marijuana and cocaine in Mr. 

Hightower's apartment.  Mr. Hightower was taken into custody. 

       Prior to trial, Mr. Hightower filed a motion to suppress the evidence obtained 

through the search of his person, contending the evidence was the fruit of an illegal 

detention.  He also filed a motion to suppress the evidence obtained through the search of 

his apartment.  Specifically, he claimed that probable cause for the warrant could not be 

based on Detective Slocombe's detection of a marijuana odor because Detective

Slocombe did not receive adequate training in identifying the odor of marijuana.  The 

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No. 29567-2-III
State v. Hightower

court denied the motions and found Mr. Hightower guilty of possession of a controlled 

substance, cocaine, and possession of marijuana.  Mr. Hightower appeals.  

                                         ANALYSIS

       "In determining whether probable cause to arrest in a narcotics case exists, the 

court must consider 'the totality of the facts and circumstances within the officer's 

knowledge at the time of the arrest.  The standard of reasonableness to be applied takes 

into consideration the special experience and expertise of the arresting officer.'"  State v. 

Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996) (quoting State v. Fore, 56 Wn. App. 

339, 343, 783 P.2d 626 (1989)).

       "A lawful arrest is a prerequisite to a lawful search."  State v. Grande, 164 Wn.2d 

135, 139-40, 187 P.3d 248 (2008).  An officer is allowed to make a warrantless arrest if 

the officer has "'probable cause to believe a person has committed or is committing a 

misdemeanor or gross misdemeanor, involving . . . the use or possession of cannabis.'"  

Id. at 140 (quoting RCW 10.31.100(1)). 

       An officer's statement that he or she detected the smell of marijuana is sufficient 

to constitute probable cause to search if the officer has training and experience with the 

smell of marijuana.  State v. Cole, 128 Wn.2d 262, 289, 906 P.2d 925 (1995) (citing State 

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No. 29567-2-III
State v. Hightower

v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110 (1994)).  The sense observation must 

consist of more than personal belief.  State v. Johnson, 79 Wn. App. 776, 780, 904 P.2d 

1188 (1995). 

       In State v. Compton, 13 Wn. App. 863, 864-65, 538 P.2d 861 (1975), the court 

decided that the smell of marijuana on Mr. Compton provided the officer with probable 

cause to arrest Mr. Compton.  The court determined that the officer's training and 

experience qualified him to identify the odor as marijuana and, consequently, to form a 

reasonable belief that a crime was being committed.  Id.  The officer received training in 

the detection of controlled substances, had been on numerous marijuana arrests, and was 

familiar with the odor associated with marijuana.  Id. at 864.

       In Cole, the court determined that the officer's training and experience in detecting 

the smell of marijuana was sufficient when the officer "had been a . . . [p]olice [o]fficer

for over two years, had been involved with marijuana grow operations in that time, and 

was familiar with the smell of growing marijuana."  Cole, 128 Wn.2d at 289.

       In Johnson, the court determined that a federal agent had sufficient training and 

experience when the agent had been in law enforcement for approximately eight years, 

attended several law enforcement academies, participated in police operations targeting 

marijuana cultivation, and represented that he knew the smell of marijuana through his 

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No. 29567-2-III
State v. Hightower

training and experience.  Johnson, 79 Wn. App. at 781.

       Here, Detective Slocombe had been a police officer for almost five years and 

advanced to the rank of detective.  He received training in narcotics investigation while at 

the Washington State Basic Law Enforcement Academy.  He also had experience with 

numerous investigations that involved search warrants and the seizure of drugs. 

       The court's finding that Detective Slocombe "by virtue of his training and 
experience in law enforcement can detect the odor of both burnt and fresh marijuana"2 is 

supported by the evidence and in turn supports the conclusion that probable cause existed 

for the arrest and search warrant.    

       We affirm Mr. Hightower's convictions for possession of marijuana and 

possession of cocaine.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, C.J.

WE CONCUR:

2 Clerk's Papers at 62.

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No. 29567-2-III
State v. Hightower

______________________________              _________________________________
Sweeney, J.                                 Korsmo, J.

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