                                                                   FILED
                                                               JANUARY 10, 2017
                                                             In the Office of the Clerk of Court
                                                          \VA State Court of Appc}!ls, DiYision Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )         No. 33833-9-111
                                             )         ( consolidated with
                    Appellant,               )         No. 33834-7-111)
                                             )
             V.                              )
                                             )
MICHAEL K. HURLBURT,                         )
                                             )
                    Respondent,              )
                                             )         UNPUBLISHED OPINION
STATE OF WASHINGTON,                         )
                                             )
                    Appellant,               )
                                             )
             V.                              )
                                             )
NANCYL. ST. PIERRE-WALSH,                    )
                                             )
                    Respondent.              )

      LAWRENCE-BERREY, J. -The State of Washington appeals the trial court's orders

suppressing evidence. The trial court determined that probable cause did not support the

issuance of the search warrant to the extent the warrant permitted the search of Michael

K. Hurlburt' s residence and unattached garage. The State contends the trial court erred

because (1) independent police investigation corroborated information provided by an
No. 33833-9-111; 33834-7-111
State v. Hurlburt; State v. St. Pierre-Walsh


anonymous informant (AI), and (2) even excising the information provided by the AI,

there was probable cause to search because a second officer observed the outdoor

marijuana grow operation, and a sufficient nexus existed between that operation and Mr.

Hurlburt's residence and unattached garage. We agree with the State's second argument

and, therefore, reverse the trial court's orders suppressing evidence and remand for

further proceedings.

                                          FACTS

       The following facts are taken from the declaration in support of the search warrant.

An AI reported to Detective Roland Singer that Mr. Hurlburt had a possible marijuana

grow operation on his property at 41836 Paradise Lane North. The AI also told Detective

Singer that Mr. Hurlburt probably did not have a medical marijuana card. The AI further

said that Mr. Hurlburt was a convicted felon in possession of a handgun and referenced a

photograph of Mr. Hurlburt holding a gun, kneeling in front of a cougar he had killed.

Detective Singer knew that Mr. Hurlburt was a convicted felon from a 2008 case in which

he had arrested Mr. Hurlburt. Detective Singer investigated and learned that Mr. Hurlburt

had never applied for a cougar tag or hunting license.

      Four months later, the AI again contacted Detective Singer and provided him with

a copy of the earlier described photograph. The AI told Detective Singer that numerous



                                               2
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


people in cars were entering Mr. Hurlburt's property late at night, and they were driving

with their headlights turned off. The AI said Mr. Hurlburt was selling live marijuana

plants to these people. Detective Singer checked Mr. Hurlburt's criminal history and

discovered that Mr. Hurlburt had 22 felony convictions, including possession of

marijuana with intent to manufacture or deliver.

       Soon after, Detective Singer received a report from Deputy Steadman, who was on

Mr. Hurlburt's property two weeks earlier in furtherance of an unrelated investigation. In

the report, Deputy Steadman noted he was at the residence and saw four-foot tall

marijuana plants growing in a fenced garden. The report described the garden as located

east of the residence, and north of the unattached garage. An aerial photograph showing

Mr. Hurlburt's property and two other nearby residences was shown to the judge who

issued the search warrant. 1

       In his declaration in support of the search warrant, Detective Singer stated what he

knew from his training and experience pertaining to marijuana grow operations. He

stated he knew that harvested plants are usually taken into a building near a grow site to

hang and dry before the marijuana is processed. He further stated it is common for


       1
        Although a copy of the aerial photograph is in the appellate record, the copy is of
such a poor quality we are unable to discern whether the outdoor marijuana grow
operation is within the parameters of the photograph.

                                               3
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


individuals who have mature marijuana plants to have a starter room on the property

where young marijuana plants under lights are grown to replenish the mature plants after

they are harvested. Based on this information, the judge (who also later presided over the

evidentiary hearing) issued a search warrant. The search warrant authorized law

enforcement to search the outdoor grow operation as well as Mr. Hurlburt's garage and

residence and seize: ( 1) growing marijuana plants, (2) documents relating to any

authorized medical marijuana patients, (3) indication of occupancy, residency, and

ownership of the premises, (4) processed marijuana found in excess of the amount

allotted under state law, (5) firearms located on the premises, and (6) a cougar pelt.

       Law enforcement did not seize any items related to marijuana, firearms, or the

cougar pelt. We infer that Mr. Hurlburt had sufficient papers that supported the legality

of his marijuana grow operation. Law enforcement did, however, find evidence of illegal

activities in Mr. Hurlburt's residence and unattached garage, and after obtaining a

supplemental search warrant, seized that evidence.

       The State charged Mr. Hurlburt with one count of possession of a controlled

substance, methamphetamine, and one count of unlawful possession of an explosive

device. The State also charged Nancy St. Pierre-Walsh with one count of possession of a




                                               4
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


controlled substance, methamphetamine. This charge was based on evidence inside her

purse, which was inside Mr. Hurlburt's residence and searched.

       Prior to trial, the defendants filed a motion to suppress the evidence on the basis

that the search was illegal. After an evidentiary hearing, the trial court ruled that the

evidence should be suppressed. The trial court later entered findings of fact and

conclusions of law.

       The trial court noted in its findings that when it authorized the search warrant, it

disregarded all statements from the AI because there was no basis for it to determine that

the AI was reliable. The trial court found and concluded it also should have disregarded

the picture of Mr. Hurlburt holding a firearm posing with the dead cougar because the

picture was taken four months before the search warrant, and there were no facts to

suggest where the picture was taken or if the firearm or the dead cougar belonged to Mr.

Hurlburt. The trial court also found and concluded it should have disregarded Detective

Singer's statements concerning his knowledge of marijuana grow operations because such

statements were merely statements of generalized training and experience. Based on its

determinations that the above-described evidence should be disregarded, the trial court

concluded that a search of the garden area was legal (because of Deputy Steadman's




                                               5
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


observations in the unrelated investigation), but the search of the residence and

unattached garage was too attenuated and, therefore, not legal.

       The trial court determined that the practical effect of suppressing the evidence was

that no evidence supported the charges and dismissed the charges. The State appeals the

trial court's orders suppressing the evidence.

                                        ANALYSIS

       A.     STANDARDS FOR REVIEW


       Conclusions of law in an order pertaining to suppression of evidence are reviewed

de novo. State v. Fry, 142 Wn. App. 456, 460, 174 P.3d 1258 (2008), ajf'd, 168 Wn.2d 1,

228 P Jd 1 (2010). The findings of fact are reviewed for substantial evidence. State v.

Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence is evidence

sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. When

a conclusion of law is erroneously labeled as a finding of fact, this court reviews it de

novo as a conclusion of law. Casterline v. Roberts, 168 Wn. App. 376,383,284 P.3d 743

(2012).

       The State assigns error to various findings of fact. But the State fails to argue how

the challenged findings are unsupported, and in one footnote actually quotes testimony

that supports a challenged finding. We generally do not consider claims unsupported by



                                                 6
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


argument or citation to legal authority. RAP I0.3(a)(6); Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). We, therefore, accept the trial court's

findings and conduct a de novo review to determine whether the trial court's conclusions

of law are correct.

       B.     THERE IS A SUFFICIENT NEXUS BETWEEN THE MARIJUANA GROW OPERATION
              AND THE STRUCTURES SEARCHED


       The State argues that even if the picture of Mr. Hurlburt and the Al's statements

are excised from the search warrant, probable cause still existed to search Mr. Hurlburt's

residence and unattached garage.

       A search warrant may issue only on a determination of probable cause. State v.

Thein, 138 Wn.2d 133,140,977 P.2d 582 (1999). "Probable cause exists if the affidavit

in support of the warrant sets forth facts and circumstances sufficient to establish a

reasonable inference that the defendant is probably involved in criminal activity and that

evidence of the crime can be found at the place to be searched." Id. This requirement

means that a nexus must exist between criminal activity and the item to be seized, and

also between the item to be seized and the place to be searched. Id. "Facts that

individually would not support probable cause can do so when viewed together with other

facts." State v. Constantine, 182 Wn. App. 635,646,330 P.3d 226 (2014). "The

application for a search warrant must be judged in the light of common sense, resolving

                                               7
No. 33833-9-111; 33834-7-111
State v. Hurlburt; State v. St. Pierre-Walsh


all doubts in favor of the warrant." Id. "' Judges looking for probable cause in an

affidavit may draw reasonable inferences about where evidence is likely to be kept,

including nearby land and buildings under the defendant's control.'" Id. (quoting State v.

Gebaroff, 87 Wn. App. 11, 16,939 P.2d 706 (1997)).

       The leading case in this area of law, and the case relied on by the defendants, is

Thein, 138 Wn.2d 133. In Thein, the South King County Narcotics Task Force (Task

Force) found evidence of marijuana trafficking at Laurence McKone's rented residence.

Id. at 136. The Task Force also learned that McKone's landlord, Stephen Thein, was the

source of McKone's marijuana. Id. at 137-38. The Task Force applied for a search

warrant to search Thein's residence. In the affidavit in support of the search warrant, the

affiant noted it was common for drug dealers to store drug inventory, paraphernalia, and

records at their residence. Id. at 138-39. The Thein court reversed the trial court and

concluded there was an insufficient nexus between the criminal activity at the rental and

Thein's residence to support probable cause for the issuance of the search warrant. Id. at

151. Central to its conclusion, the Thein court held that generalized statements about the

common habits of drug dealers-that they store drug inventory, paraphernalia, and

records at their residence-standing alone, are not sufficient to support probable cause for

a search warrant. Id. at 148.


                                               8
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


       The State relies on Constantine, a recent case in which we distinguished Thein. In

Constantine, officers observed marijuana plants growing inside two greenhouses on

property owned by Morgan Davis, Constantine's husband. Constantine, 182 Wn. App. at

638-40. Near the greenhouses and on the same property were a residence and a shed. Id.

at 639. Law enforcement obtained a search warrant that allowed the greenhouses, the

residence, and the shed to be searched. Id. at 640. The trial court denied Constantine's

motion to suppress the evidence found in the residence and the shed. Id. at 641. In

affirming, we distinguished Thein:

              Despite Ms. Constantine's contention, Thein does not control the
       outcome of [this] appeal. Thein establishes that general statements
       regarding the common habits of drug dealers are not sufficient to establish
       probable cause when considered alone. But here, probable cause was
       supported by more than an implied assumption of where evidence may be
       kept. It was not unreasonable for the issuing judge to believe that evidence
       of the crime would be found in the house based on Mr. Davis's ownership
       and control of the property where both the observed criminal activity and
       the house were located ....

Id. at 64 7-48 (citation omitted).

       This appeal is legally indistinguishable from Constantine. The key fact is that the

structures searched were on the same property where the marijuana grow activity was

observed. 2 This fact, together with the type of evidence sought-young replacement



       2
           The marijuana grow activity here proved not to be illegal, likely because Mr.

                                               9
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


marijuana plants, evidence of marijuana being processed, and indicia of ownership-

provided probable cause to justify the search warrant of the nearby structures. We

conclude there is a sufficient nexus between the outdoor marijuana grow operation

observed by law enforcement and the nearby residence and unattached garage to support

probable cause. The trial court erred when it concluded otherwise. We, therefore,

reinstate the charges and remand for further proceedings.

       C.     ORDERS SUPPRESSING THE DEFENDANTS' POSTARREST STA TEMENTS


       The State assigns error to the trial court's orders suppressing the defendants'

postarrest statements. The State does not argue how the trial court erred. To the extent

our reversal of the trial court's suppression orders related to the search and seizure

removes the basis for these orders, we authorize the trial court to vacate those orders.

       D.     MISCELLANEOUS ISSUES


       The trial court did not enter findings of facts or conclusions of law on various

issues raised below. One of these issues is whether the search of Ms. St. Pierre-Walsh's

purse was legal. We agree with the State that there is an insuffici~nt record for us to rule




Hurlburt had documentation that allowed him to grow the marijuana observed on his
property. Nevertheless, the presence of marijuana plants on his property provided
probable cause for the search. The documentation merely provided Mr. Hurlburt an
affirmative defense. State v. Fry, 168 Wn.2d 1, 13, 228 P.3d 1 (2010).

                                               10
No. 33833-9-III; 33834-7-III
State v. Hurlburt; State v. St. Pierre-Walsh


on these issues. We, therefore, decline to do so. On remand, the parties may argue these

and other issues not considered in this opinion.

       E.     APPELLATE COSTS


       An appellate court has discretion to deny an award of appellate costs to the

prevailing party. RAP 14.2; State v. Nolan, 141 Wn.2d 620, 628, 8 P.3d 300 (2000). We

exercise our discretion and deny an award of appellate costs to the State. First, this

appeal was not instigated by either defendant. Second, the primary reason for this appeal

was the State's failure to cite Constantine to the trial court. Mr. Hurlburt moves this court

to enlarge time to file his report of continued indigency. Because we are not awarding

appellate costs to the State, the motion is moot.

       Reversed and remanded.

       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.




WE CONCUR:
                                                                               j




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