                                                                                                             FILE)
                                                                                                   COURT OF APPEALS
                                                                                                      DIVISION           II
                                                                                                 2015 FEB 1 o
                                                                                                              AM 8: 54




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

STATE OF WASHINGTON,                                                      No. 44454 -2 -II
                                                                Consolidated with No. 44460 -7 -II)
                                 Appellant,


         v.




STEVEN LYNN FAGER,                                                 UNPUBLISHED OPINION


                                 Respondent.


STATE OF WASHINGTON,


                                 Appellant,


         v.



TIMOTHY JAY FAGER,


                                 Respondent.


        JOHANSON, C. J. —      The State appeals a trial court' s order dismissing the manufacturing

and   distributing   marijuana charges   against   Steven Fager   and   Timothy     Fager.        The trial court


dismissed the case after suppressing key evidence when it found that members of the Olympic

Peninsula Narcotics Enforcement Team ( OPNET) members made false claims to obtain search


warrants and mismanaged evidence.         The State   argues   that the trial   court (   1)   erred   by failing   to
Consol. Nos. 44454 -2 -II / 44460 -7 -II



conduct a        Frye'    hearing   for   a   defense     expert' s   testimony regarding   marijuana odor, (   2) abused its


discretion       under    ER 702    when       it   allowed     the defense expert to   testify, ( 3) incorrectly applied the

                 Franks2
rules   in   a             hearing, ( 4) erred by suppressing certain evidence from a thermal image search,

and ( 5) erred by concluding that the warrant affidavits no longer supported probable cause absent

the suppressed evidence.


             We hold that the State failed to preserve its Frye challenge and its ER 702 challenge for


review. We hold further that the trial court ( 1) correctly found that OPNET recklessly disregarded

the truth, (2) did not abuse its discretion by suppressing all of the evidence from the thermal image

search,      and (   3)   properly ordered dismissal because the search warrant affidavits no longer

established probable           cause      absent      the   suppressed      evidence.   Accordingly, we affirm the trial

court' s order of dismissal.

                                                                   FACTS


                                                            I. BACKGROUND


             In 2007, OPNET began to suspect that Steven3 grew and distributed marijuana. Through


its surveillance efforts, OPNET also connected Timothy and Albert Sullivan to the suspected

operation. In 2009, OPNET commenced surveillance on the Fagers' personal residences and on a


shop located         at   115 Freeman Lane in Port Townsend ( 115 Freeman).                     The shop was the property

of a    business     owned    by    Sullivan        and   the   Fagers.    While they watched 115 Freeman, members of



1 Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923).

2 Franks v. Delaware, 438 U. S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 ( 1978).

3 Where necessary, we refer to Steven and Timothy by their first names for clarity, intending no
disrespect. We also refer to Steven and Timothy collectively as " the Fagers."

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Consol. Nos. 44454 -2 -II / 44460 -7 -II


OPNET       reported   that   they had     smelled    strong   odors    of marijuana on several occasions.            The


OPNET detectives claimed that it was apparent that the odor was emanating from the shop and not

from two nearby residences. OPNET sought and obtained a warrant to examine utility records for

115 Freeman as well as a warrant to conduct a thermal imaging search on the shop.

           OPNET executed the thermal imaging warrant using a thermal imaging device that also

recorded and fed video to a remote monitor. OPNET members again reported an odor of marijuana


coming from inside the shop. According to OPNET, the thermal imaging revealed suspicious heat

activity    consistent with       indoor   marijuana    grow       operations.     This fact, along with apparently

abnormal utility consumption, prompted OPNET to apply for a warrant to enter and search 115

Freeman. OPNET obtained and executed this warrant, discovering a sophisticated marijuana grow

operation.



                                                     II. PROCEDURE


           The State charged the Fagers with one count of manufacturing marijuana and one count of

possession with       intent to deliver    marijuana.     The      cases were consolidated    for trial. Before trial,


the Fagers filed a motion to suppress the evidence discovered in the search of 115 Freeman

pursuant    to CrR 3.   6   and   CrR 8. 3( b).    The motion also included a request for a Franks hearing to

challenge OPNET' s allegations that they could smell growing marijuana from long distances. The

trial court incorporated a Franks hearing into the CrR 3. 6 hearing.

           To challenge OPNET' s claims, the Fagers called Dr. James Woodford as an expert on


marijuana     odor.     Before the hearing began, the State filed a motion in limine to exclude Dr.

Woodford'     s   testimony.      The State       questioned   the   extent   of   Dr. Woodford'   s   credentials.   The


State' s position was that Dr. Woodford had no formal training in the detection of marijuana or the


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effect   that   vegetation and wind currents would       have   on a person' s     ability to detect      an odor.   The


State also argued that Dr. Woodford had no credentials that would justify his testifying as an expert

on ventilation and filtration systems.


          When it argued its motion, the State contended that Dr. Woodford should not be allowed

to testify because his credentials did not establish that he was qualified to testify as an expert and

because his theories lacked scientific support. But the State never requested a Frye hearing. The

trial court reserved ruling on the motion.

          At the   hearing, 4 the Fagers called Dr. Woodford to testify regarding marijuana odor. The

State did   not object     to Dr. Woodford'    s   testimony. Dr. Woodford explained that the molecular

structure of the odor of growing marijuana was such that the odor did not travel far before breaking

down and that, therefore, it was impossible for a human to detect beyond a certain distance.

Because OPNET         members were,     by their own admission, as     far   as   100   yards   away, 5   Dr. Woodford


concluded that it was not humanly possible to smell growing marijuana from where the officers

claimed    they    were   located.   In Dr. Woodford' s opinion, it was unlikely that the odor could be

detected from 40 to 50 feet away         and   virtually impossible   at   60 feet. Dr. Woodford also opined


regarding how the marijuana odor would be affected by the use of filtration devices. Finally, Dr.

Woodford explained that even if OPNET members had detected an odor of marijuana, the nature




4 We refer to the nine -day Franks /CrR 3. 6 hearing combination simply as " the hearing" unless
specificity is necessary. The trial court incorporated these two motions, among other things, into
one   hearing. It then entered a series of written, findings and conclusions based on everything the
court had heard.


5 The record is somewhat unclear, but it appears that OPNET was never closer than 130 feet away
from 115 Freeman.


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Consol. Nos. 44454 -2 -II / 44460 -7 -II



of   the   odor precludes    it from     having " directionality," meaning that there would be no way for a

person to identify the source of the odor with any certainty.

           After a nine -day pretrial hearing wherein the parties addressed numerous issues, the trial

court ruled     in favor    of   the Fagers regarding the         Franks    motion.     The court found that OPNET


officers made false statements concerning their ability to detect the odor of marijuana, and

therefore    ruled   that   they had    made such statements         in   reckless   disregard for the truth. The trial


court struck the " smell evidence" from both the thermal image warrant and the 115 Freeman search


warrant application and concluded that the warrants were no longer supported by probable cause.

All evidence seized as a result of those searches was suppressed, and the trial court signed an order


of dismissal on that basis.

           Moreover, the trial court also found governmental mismanagement under CrR 8. 3( b)


because the video recordings of the thermal image search had apparently been destroyed despite

numerous       attempts     by   the   defense to   obtain   them.    Accordingly, the trial court suppressed all

evidence      relating to the thermal image          search on     this basis   as   well.   Finding that there was no

longer probable cause to support the warrants, the trial court entered an order dismissing the case.

The State appeals.




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                                                         ANALYSIS


                                    I. ADMISSIBILITY OF EXPERT TESTIMONY


                                    A. FAILURE TO CONDUCT FRYE HEARING


         The State contends that the trial court erred by failing to conduct a Frye .hearing before

permitting Dr. Woodford to testify as to his theories regarding the detection of marijuana odor.

We agree with the Fagers that the State failed to preserve this issue for review.


         Review of admissibility under Frye is de novo and involves a mixed question of law and

fact. State    v.   Copeland, 130 Wn.2d 244, 255, 922 P. 2d 1304 ( 1996).                  The rationale underlying the

Frye test is that expert testimony based on novel scientific theory is admissible only if it is

generally accepted in the relevant scientific community. State v. Wilbur -Robb, 134 Wn. App. 627,

632, 141 P. 3d 665 ( 2006). But a Frye challenge is not preserved for review on appeal when there


is   no objection    before the trial   court.    Wilbur -Bobb, 134 Wn. App. at 632.

          The State asserts that it raised the Frye issue in its prehearing motion in limine discussed

below. While it is true that the purpose of a motion in limine is to avoid a requirement that counsel


object to contested evidence when that evidence is presented at trial, a party only maintains a

standing     objection   to the   extent   that   a   trial   court   has   made a   final ruling.   State v. Powell, 126


Wn.2d 244, 256, 893 P. 2d 615 ( 1995).                Where, as here, a " trial court refuses to rule, or makes only

a tentative ruling subject to evidence developed at trial, the parties are under a duty to raise the

issue   at   the   appropriate   time with proper objections at trial."              State v. Koloske, 100 Wn.2d 889,


896, 676 P. 2d 456 ( 1984),         overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761

P. 2d 588, 787 P. 2d 906 ( 1988).




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Consol. Nos. 44454 -2 -II / 44460 -7 -II



         Here, the State moved in limine to exclude Dr. Woodford' s testimony, questioning the

extent   of   his   credentials     and   training.       The State contended that Dr. Woodford should not be


allowed to testify because his credentials did not establish that he was qualified to testify as an

expert and because his theories lacked scientific support. Regarding Dr. Woodford, the following

exchange occurred:



                     THE STATE]: ...    I know you' re going to reserve it, but I want to make
         sure you' re really clear on the State' s position on this.

                     THE STATE]: ...           He'    s   idiosyncratic: And this is     an area where —I    don' t
         know how idiosyncratic he is in                  all   things —but he has    made    this up.   He has no
         scientific       support   for it. I always forget the name of that rule, but it has to be
         something that'       s accept—generally accepted              in the   scientific   community. I can' t
         remember the name of it.
                     THE COURT: The Frye standard?
                     THE STATE]:            Frye   standard.        He has nothing to support the testimony.
         Nothing in his background anywhere that he' s ever done this... .
                  THE COURT: Well, to me, the defense is going to have to lay a foundation
         for his testimony when he' s here. And so, when that time comes, I' ll have to hear
         it and determine whether his testimony is relevant or not.

1 Report of Proceedings ( RP) at 41 -44. Thus, the State only raised an objection to foundation, and

while the State mentioned Frye by name, it never specifically objected on the basis of Frye when

the time came for Dr. Woodford to testify nor did it request a Frye hearing.

         Wilbur -Bobb is instructive here.                There, the defense lodged an objection as to foundation


when the State' s expert toxicologist testified regarding the theory of "retrograde extrapolation."

134 Wn.       App.   at   633. Wilbur -Bobb argued,


          He' s read articles. I can read articles as to what to testify to as a toxicologist. He
         said he has two days total of training in this area. I don' t have any information or
         any indication that this is scientifically accepted. We don' t have any model or any
         information as to that. We don' t know what specific articles he' s read."




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Consol. Nos. 44454 -2 -II / 44460 -7 -II



Wilbur -Bobb, 134 Wn.                 App.      at   633.   On appeal, Wilbur -Bobb claimed that these objections


preserved a     Frye          challenge   for   appeal.     Wilbur -Bobb, 134 Wn.           App.   at   633. Division One of this


court concluded that, in context, Wilbur -Bobb did not contest the proposition that retrograde


extrapolation is generally accepted because Wilbur -Bobb did not request a hearing on that issue

nor did she ask the court to clarify whether its ruling was intended to encompass that issue. Wilbur -

Bobb, 134 Wn. App. at 634. The court held that the objection did not preserve a Frye issue because

Wilbur -Bobb'        s challenge was           essentially to the     credentials of the expert, and "[ w] e will not allow



an objection        to   credentials      to   be transformed into        a   Frye   argument on appeal."       Wilbur -Bobb, 134


Wn. App. at 634.

         Here, even if the State' s preliminary objection to Dr. Woodford' s testimony did constitute

a timely objection like those in Wilbur -Bobb, the State never specifically requested a hearing on

the   issue   of    the   acceptance of          Dr. Woodford'    s   theory in       the   scientific   community.   Beyond its


objection regarding a lack of foundation, the State never contested the proposition that the theory

was generally accepted in the scientific community. Rather, the State conducted voir dire of Dr.

Woodford during his testimony and said,

         I have found nothing in anything that you' ve written or that anybody else has
         written that indicates that you have any qualifications on telling how far marijuana
         will go in the air under open conditions..


3 RP    at    49.    Accordingly, the State' s objection, if any, was to whether Dr. Woodford had the

requisite expertise to support his testimony.

         Moreover, the State cross -examined Dr. Woodford but asked no questions about whether


his theory had           or   had   not gained general acceptance               in the   scientific   community.   Consequently,

because the State did not specifically request a Frye hearing and because an objection to the


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Consol. Nos. 44454 -2 -II / 44460 -7 -II



expert' s credentials does not transform into a Frye argument on appeal, we hold that the State

failed to preserve a Frye challenge for review.


                                               B. APPLICATION OF ER 702


             The State argues further that, notwithstanding the Frye issue, the trial court nevertheless

erred   when it    allowed    Dr. Woodford to       testify   as   an   expert under   ER 702. Again, we agree with


the Fagers and hold that the State failed to preserve this issue for review for the same reasons set


forth in the preceding section.

             A decision to admit expert testimony under ER 702 is reviewed for abuse of discretion.

State   v.   Bally,   140 Wn.2d 1, 9 -10, 991 P. 2d 1151 ( 2000). Abuse of discretion exists when a trial


court' s. exercise of its discretion is manifestly unreasonable or based upon untenable grounds or

reasons. Powell, 126 Wn.2d at 258.


             As a threshold matter, we note that the State did not object throughout the duration of Dr.


Woodford' s testimony regarding his theory that the chemical makeup of the odor of marijuana is

not capable of        being   detected   at   the distances claimed       by   members of   OPNET. The State raised


its sole objection when Dr. Woodford explained the impact that a sophisticated charcoal filtration

system would have on the ability to detect the marijuana odor. After the State objected, the court

asked the Fagers to lay a foundation. Dr. Woodford then discussed his extensive experience with

charcoal filtration systems. The State did not object further.


             The State appears to rely on its motion in limine to exclude Dr. Woodford' s testimony in

support of the proposition that it had a standing objection to Dr. Woodford' s status as an expert.

But as explained above, the trial court reserved it' s ruling until Dr. Woodford testified, giving the

defense the opportunity to lay a proper foundation. After the defense laid its foundation, the State


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Consol. Nos. 44454 -2 -II / 44460 -7 -II



had a duty to raise the issue at the appropriate time with proper objections. Koloske, 100 Wn.2d

at   896.     Consequently, the State' s failure to object to Dr. Woodford' s testimony regarding

marijuana odor detection constitutes a failure to preserve that issue on appeal. Powell, 126 Wn.2d

at257.



                                              II. FRANKS HEARING


            Next, the State argues that the trial court committed reversible error when it found that


OPNET members recklessly disregarded the truth by virtue of a " totally incorrect" application of

the Franks test.     The State argues that the trial court applied the Franks test incorrectly because

the court found that OPNET members recklessly disregarded the truth but did not find that they

intentionally made a knowingly false statement to the magistrate regarding their detection of the

marijuana odor.       We hold that the trial court properly applied the Franks standard, the record

supports the trial court' s findings, and the trial court did not err by determining that OPNET

members recklessly disregarded the truth about the marijuana odor they were able to detect.

Accordingly, the trial court properly struck that evidence from the warrant affidavit.

             A search warrant may be invalidated if material falsehoods were included in the affidavit

intentionally ( deliberately) or with reckless disregard for the truth or if there were deliberate or

reckless omissions of material        information from the    warrant."   State v. 011ivier, 178 Wn.2d 813,


847, 312 P. 3d 1 ( 2013),    cert.   denied, 135 S. Ct. 72 ( 2014). If the defendant makes a substantial


preliminary showing of such a material misrepresentation or omission, the defendant is entitled to

a    Franks evidentiary   hearing.    011ivier, 178 Wn.2d at 847.     If the defendant then establishes the


allegations, the material misrepresentation must be stricken and the sufficiency of the affidavit

then    assessed as so modified.      State   v.   Cord, 103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985).    Great



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Consol. Nos. 44454 -2 -II / 44460 -7 -II


deference is to be given to the trial court' s factual findings because it alone has had the opportunity

to view the witness' s demeanor and to judge his veracity. Cord, 103 Wn.2d at 367.

            Here, due largely to Dr. Woodford' s testimony, the Fagers made the requisite preliminary

showing that OPNET members made material misrepresentations regarding their ability to detect

the marijuana odor. The trial court then found that OPNET members did not smell marijuana from

the locations claimed in the affidavit for the search warrant in reckless disregard of the truth.

            The State    relies   primarily   on    State   v.   Seagull, 95 Wn.2d 898, 632 P. 2d 44 ( 1981), in support


of the proposition that the trial court' s finding of reckless disregard was necessarily erroneous

because such a finding cannot be supported if OPNET members were merely mistaken as to their

belief that they smelled marijuana emanating from 115 Freeman. In Seagull, our Supreme Court

declined to quash a search warrant where a police officer observed a tomato plant in plain view

that   he   mistook      for   a marijuana plant.           95 Wn.2d      at   900.    The Seagull court so held because


allegations of negligence or innocent mistake are insufficient to rise to the level of reckless


disregard for the truth that would require the voiding of a warrant. 95 Wn.2d at 908.

            But here, the State ignores the fact that our courts have concluded that reckless disregard

can    be   shown where          the   affiant "'   in fact entertained serious doubts as to the truth of facts or


statements      in the   affidavit. '      State v. Chenoweth, 127 Wn. App. 444, 456, 111 P. 3d 1217 ( 2005)

 internal     quotation marks omitted) (            quoting State v. Clark, 143 Wn.2d 731, 751, 24 P. 3d 1006,

cert.   denied, 534 U. S. 1000 ( 2001)), aff'd, 160 Wn.2d 454, 158 P. 3d 595 ( 2007).                              And " serious


doubts" can be shown either by ( 1) actual deliberation on the part of the affiant or (2) the existence

of obvious reasons             to doubt the veracity        of    the informant   or   the accuracy   of   his   reports.   Clark,


143 Wn. 2d      at   751.      This position is consistent with the fact that the Fourth Amendment does not



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Consol. Nos. 44454 -2 -11 / 44460 -7 -I1.



proscribe "'    inaccurate      searches, '    only "` unreasonable   ones. '   Seagull, 95 Wn.2d at 908 ( quoting

Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84

HARV. L. REV. 825, 832 ( 1971)).


          It is evident from the language of the trial court' s written finding that the court considered

the possibility of a reasonable mistake. Finding 11 provides,

          The court is aware that a simple mistake will not invalidate a warrant under Franks
          v.   Delaware, 438 U.S. 154[, 98 S. Ct. 2674, 57 L. Ed. 2d 667] ( 1985).              If this was
          simply one " nose hit" of marijuana at an impossible distance, the Court might be
          more inclined to treat this a reasonable mistake, or that perhaps the officers were
          smelling    marijuana      growing from      some other     location. But given the number of
            nose hits" claimed at multiple locations, all of which are impossible distances from
          the shed, this Court has no option but to treat these statements as demonstrating a
          reckless disregard for the truth."


1 CP   at    190.   Based on this conclusion, the court then found that all references to the smell of


marijuana must be stricken from the affidavit of both the thermal image warrant and the search


warrant for 115 Freeman. It is clear from the trial court' s finding that, in its view, obvious reasons

existed     to doubt the veracity       of    the OPNET   members.      Given the deference afforded to the trial


court' s determination, we hold that the trial court did not commit reversible error by finding that

OPNET members recklessly disregarded the truth in the search warrant affidavits for the foregoing

reasons. 6




6 We also note that the State conceded during the presentation of the trial court' s findings of fact
and conclusions of law that " if the smell of marijuana is removed from this, then there' s nothing
left to   go   forward   on."    10 RP at 49.



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Consol. Nos. 44454 -2 -I1 / 44460 -7 -I1



                              III. REMAINING EVIDENCE SUPPORTING WARRANTS


         The State next contends that the trial court should not have suppressed all evidence


associated with the thermal image search solely because it suppressed the video recording evidence

because     of government mismanagement pursuant                       to CrR 8. 3( b).      We agree with the Fagers that


the trial   court   did   not abuse   its discretion      by   suppressing the "      smell evidence,"        and that probable


cause was nonexistent absent that evidence.


         When reviewing the trial court' s grant of a CrR 3. 6 suppression motion, we determine

whether substantial evidence supports the challenged findings of fact and whether the findings of

fact support the conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).

 Evidence is substantial when it is enough ` to persuade a fair -minded person of the truth of the


stated premise. "'        Garvin, 166 Wn.2d at 249 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988

P. 2d 1038 ( 1999)). Unchallenged findings of fact are considered verities on appeal. State v. Lohr,


164 Wn.      App.   414, 418, 263 P. 3d 1287 ( 2011).                 We review de novo the trial court' s conclusions


of   law pertaining to the      suppression of evidence.                Garvin, 166 Wn.2d         at   249.    Findings of fact


mislabeled as conclusions             of   law   are   treated   as   findings   of   fact   on review.   State v. Ross, 141


Wn.2d 304, 309, 4 P. 3d 130 ( 2000).


            As part of its ruling, the trial court found that evidence obtained from the video recording

of the thermal image search and all other information obtained in the execution of that warrant

must be suppressed because OPNET' s negligent or intentional destruction of this evidence




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Consol. Nos. 44454 -2 -II / 44460 -7 -II


                                                                           7
constituted government mismanagement under                CrR 8. 3( b).        Pursuant to CrR 8. 3( b), a trial court


may either dismiss a criminal prosecution due to arbitrary action or government mismanagement,

or, if dismissal is not warranted, it may suppress evidence to eliminate the prejudice caused by the

governmental misconduct. City ofSeattle v. Holifield, 170 Wn.2d 230, 237, 240 P. 3d 1162 ( 2010).

        Here, the trial court concluded that the proper remedy was suppression of the evidence

rather than dismissal. The State' s argument is that evidence other than the video recording secured

by OPNET during the execution of the thermal image search should not have been suppressed.

But the State ignores the fact that the trial court made this finding and subsequently reached the

associated conclusion independently of its determination that all " smell evidence" must be stricken

from the affidavit because of OPNET' s reckless disregard for the truth. The trial court' s findings

provide,



                 5.    The Court finds that the primary justification for obtaining the thermal
        imagery warrant was the officer' s claim that they could smell the marijuana from
        various locations around the property. Because the Court finds that these assertions
        were made with a reckless disregard for the truth, they must be stricken from the
        affidavit in support of the warrant. When this is done, there is no probable cause
        to   support   the thermal     warrant.    Any evidence flowing from the issuance of that
        warrant must be suppressed.
                 6. Independent of the lack of probable cause, this Court finds that the results
        ofthe thermal imagery warrant must be suppressed on the basis of mismanagement.




7 CrR 8. 3( b) provides,
        On Motion        of   Court.    The court, in the furtherance of justice, after notice and
        hearing, may dismiss any criminal prosecution due to arbitrary action or
        governmental misconduct when there has been prejudice to the rights of the accused
        which   materially     affect   the   accused' s right   to a   fair trial. The court shall set forth
        its reasons in a written order.



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Consol. Nos. 44454 -2 -II / 44460 -7 -II



1 CP at 191. Because the State does not challenge these findings, they are verities. Lohr, 164 Wn.

App.   at   418. We hold that the State' s claim fails.


                                    IV. PROBABLE CAUSE NOT ESTABLISHED


            Finally, the State contends that probable cause exists to support each warrant authorizing

searches      of   115 Freeman notwithstanding the                suppression     of all   of   the "   nose   hits"   or " smell




evidence."      The State grounds this argument on the existence of the relationship between the Fagers

and    Sullivan.     The argument appears to be that because OPNET had a significant amount of


information tying Sullivan to the sale of marijuana and because Sullivan was the Fagers' business

partner and co -owner of 115 Freeman, there was sufficient information for the magistrate to issue

warrants     to " find the    source of   the   marijuana      that Al Sullivan was selling."       Br. of Appellant at 48.


This argument lacks merit.


            Probable cause exists where there are 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. Thein, 138 Wn.2d 133, 140,


977 P.2d 582 ( 1999).          Accordingly, probable cause requires a nexus between criminal activity and

the item to be seized and also a nexus between the item to be seized and the place to be searched.

Thein, 138 Wn.2d at 140.


            Here, absent OPNET' s claim that it could smell marijuana emanating from 115 Freeman,

there is no evidence in the record that provides the requisite nexus between a suspected marijuana

grow operation and            115 Freeman.        The fact that OPNET designated Sullivan and the Fagers as


persons of interest in its investigation, combined with the fact that all three men had been seen,




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Consol. Nos. 44454 -2 -II / 44460 -7 -II



going to and from 115 Freeman, does not by itself establish that criminal activity can be found

there. We so hold and affirm the trial court' s order dismissing the case. 8

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




                                                       OHANSON, C. J.
 We concur:




 MAXA,




SUTTON, J.




8 The State also argues that the magistrate had sufficient information to issue the utility
consumption search warrant, but the trial court made no findings of fact or conclusions of law
regarding abnormal utility consumption.

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