      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                No. 69357-3-1

                                                                                 3*»
                    Respondent,                     DIVISION ONE                 •po
                                                                                            o

                                                                                       -n



             v.



ARON CLARK HOVANDER,                                UNPUBLISHED
                                                                                  02

                    Appellant.                      FILED: April 21. 2014




      Cox, J. — Aron Hovander appeals his judgment and sentence based on

his conviction of one count of unlawful manufacture of a controlled substance,

marijuana. We hold that probable cause existed to support the issuance of the
second warrant to search the milking parlor and office equipment building where

the marijuana was seized. A Franks hearing was not required under the
circumstances of this case. We also hold that the independent source doctrine

supports our conclusion that the evidence was legally seized. None of the other
arguments that Hovander advances warrant reversal of the denials of his motions
to suppress and reconsider. We affirm.

       On October 12, 2011, at 3:30 p.m., Deputy Sheriff Anthony Paz and a

Whatcom County prosecutor sought a search warrant for 5268 Olson Road in
Ferndale, Washington. Hovander is the owner of the property.
       Deputy Paz testified that the property has six buildings—four barns and an
attached milking parlor and office equipment building. He stated that he was
No. 69357-3-1/2


investigating the crime of manufacturing marijuana and wanted to search the

milking parlor and office and equipment building.

       Deputy Paz described previous visits to the property. He stated that the

week prior he was on Olson Road with another deputy and "could actually smell

marijuana from Olson Road."

       He also testified that he went back to the property with a different deputy

on October 11 to investigate further. He testified that they walked up to two

particular buildings—the milking parlor and office building—and could smell an

obvious odor of growing marijuana and could hear fans in the buildings. Based

on Deputy Paz's testimony, the judge issued the first search warrant.

       The State did not execute this first warrant. The prosecutor was

concerned that the deputies had trespassed during the October 11 investigation

when they went up to the buildings on Hovander's property. The prosecutor told

Deputy Paz to return to the farm and verify that he could smell the marijuana

from public areas.

       The State later conceded that some of the information acquired during the

October 11 trespass was wrongfully obtained. Accordingly, the parties agreed

that portions of the transcript for the first warrant would be excised. This record

reflects the transcript, as excised. We consider only those portions of this record

to which the parties agreed below.

       On October 13, 2011, at 11:45 a.m., Deputy Paz testified again before the

same judge who previously authorized the first warrant. The prosecutor stated

that Deputy Paz had "some observations regarding [the barns at the Hovander
No. 69357-3-1/3


property] other than what [they] talked about yesterday." Specifically, this

testimony reflected information that Deputy Paz obtained following his

conversation with the prosecutor and additional investigation on his third visit to

the property on October 12.

       Deputy Paz testified that he was on Olson Road the night of October 12

and could again smell an obvious odor of growing marijuana emanating from the

property (third smell from Olson Road). He again described the two prior

occasions where he had smelled marijuana from the same location on Olson

Road—October 7 (first smell from Olson Road) and October 11 (second smell

from Olson Road).

      Additionally, Deputy Paz described his extensive training and experience

in the identification of controlled substances, including marijuana. He also

testified that he reviewed power bills from the Hovander farm, and that the power

consumption was 10 times above the average for the state of Washington. The

testimony from this second hearing was incorporated as an addendum to the

record. The court issued a second warrant.

       Following execution of the second search warrant on the milk parlor and

office building, the deputies discovered a large scale marijuana growing

operation, with over 500 marijuana plants under cultivation.

       The State charged Hovander by second amended information with one

count of unlawful manufacturing of a controlled substance, marijuana. He moved

to suppress all evidence seized as a result of the milk barn property search

authorized by the second warrant.
No. 69357-3-1/4


       Hovander also argued for a hearing pursuant to Franks v. Delaware1 to

determine ifany material information as to probable cause for the issuance of the

second warrant was either misrepresented or omitted. Further, he moved to

suppress all evidence acquired after the "illegal seizure of electrical power

consumption records."

       After the suppression hearing, the superior court denied Hovander's

motions. The court later entered its written findings of fact and conclusions of

law.


       Hovander twice moved for reconsideration. The superior court denied

both motions.

       Hovander agreed to a stipulated bench trial. The superior court found

Hovander guilty, as charged, and entered its judgment and sentence.

       Hovander appeals.

                             MOTION TO SUPPRESS

       Hovander challenges the validity of the second search warrant, the

authority for seizing the marijuana and other evidence. He argues that the

evidence supporting the application for this warrant was insufficient to support

probable cause. He claims that the investigating officer was reckless in failing to

disclose information to the issuing judge. He also argues that the search

warrant is defective because it did not establish that the suspected grow

operation was not legal. Finally, he argues that the search was tainted by the

prior illegal trespass. We disagree with all arguments.


        438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
No. 69357-3-1/5


                                  Probable Cause

        Hovander first argues that "the evidence acquired outside of the unlawful

trespass as contained in the search warrant testimony does not establish

probable cause." We disagree.

       To establish probable cause, the affidavit must set forth "sufficient facts to

convince a reasonable person of the probability the defendant is engaged in

criminal activity and that evidence of criminal activity can be found at the place to

be searched."2 The judicial officer issuing the warrant is entitled to make

reasonable inferences from the facts and circumstances set out in the affidavit.3

       In reviewing a probable cause determination, appellate courts review the

same evidence presented below.4 Review is limited to the four corners of the

affidavit supporting probable cause.5 The trial court's assessment of probable

cause is a legal conclusion that an appellate court reviews de novo.6

       Affidavits for search warrants are to be interpreted "'in a commonsense

manner, rather than hypertechnically, and any doubts are resolved in favor of the

warrant.'"7




       2 State v. Lyons. 174 Wn.2d 354, 359, 275 P.3d 314 (2012).

       3 State v. Maddox. 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).

       4 State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007).

       5 State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).

       6 Chamberlin, 161 Wn.2d at 40.

       7 Lyons, 174 Wn.2d at 360 (quoting State v. Jackson. 150 Wn.2d 251,
265, 76 P.3d 217 (2003)).
No. 69357-3-1/6


       "When an officer who is trained and experienced in marijuana detection

actually detects the odor of marijuana, this by itself provides sufficient evidence

to constitute probable cause justifying a search."8 Washington courts have

upheld search warrants based solely or largely on olfactory observations.9

Courts emphasize that when considering the adequacy of smell observations to

support probable cause, the sufficiency of the observations depends on the

officer's experience and expertise.10 Such expertise is "critical" to the analysis.11

An officer's "sense observations must consist of more than mere personal

belief."12

        Additionally, a magistrate need only draw the reasonable inference that

the odor is connected to the defendant's residence.13

        We first note that the State, in its briefing, argued that we review for abuse

of discretion the determination for probable cause for issuance of a search

warrant, relying on State v. Chenoweth.14 At oral argument, the State properly



        8 State v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110 (1994).

        9 See, e.g.. State v. Johnson, 79 Wn. App. 776, 782, 904 P.2d 1188
(1995); State v. Remboldt. 64 Wn. App. 505, 510-11, 827 P.2d 282 (1992); State
v. Vonhof, 51 Wn. App. 33, 41-42, 751 P.2d 1221 (1988).

        10 See, e.g., Johnson, 79 Wn. App. at 780-82; Olson, 73 Wn. App. at 356;
Remboldt; 64 Wn. App. at 510.

        11 Johnson, 79 Wn. App. at 780.

        12 jd

        13 See State v. Petty, 48 Wn. App. 615, 622-23, 740 P.2d 879 (1987).

        14 Brief of Respondent at 10 (citing State v. Chenoweth, 160 Wn.2d 454,
477, 158 P.3d 595 (2007)).
No. 69357-3-1/7



conceded that this reliance was incorrect. So too is any reliance on the trial

court's findings of fact and conclusions of law regarding the question of probable

cause at the suppression hearing.15 The proper standard of review of a probable

cause determination is the one previously articulated.

       Here, disregarding the evidence obtained from the unlawful October 11

trespass, there was sufficient evidence before the issuing judge to support the

determination of probable cause for the second warrant.

      First, there was testimony that Deputy Paz smelled marijuana from Olson

Road, a proper vantage point, on at least two separate occasions. He stated:

             The first occasion was [October 7] and it was from the exact
      same spot that I could smell it fro[m] last night. That was at
      nighttime, and the wind was actually blowing in the same direction
      from north to south. And that is when [another deputy] was with
      me. And then on [October 11], again in the same location on Olson
      Road, we could smell it again ... .[16]

      He also provided additional details about this location on Olson Road:

             The milk parlor and the office are fairly close to Olson Road.
      And there is a row of fairly large trees separating the property and
      Olson Road. On the southwest portion of the property, there is
      basically a tree missing and I stood there on the county right of
      way, on the eastern side of the road .. . .[17]

       Hovander admits this fact in his brief. He states: "Deputy Paz confirmed

that he had detected the odor of growing marijuana multiple times from the same




      15 See State v. Perez, 92 Wn. App. 1, 4 n.3, 963 P.2d 881 (1998).

       16 Clerk's Papers at 95.

       17 Id. at 94.
No. 69357-3-1/8


vantage point—a break in the tree line along Olson Road to the south of the Milk

Barn."


         Second, Deputy Paz's testimony was based on more than his mere

personal belief. The search warrant affidavits contained detailed information

demonstrating that Deputy Paz had extensive training and experience with

marijuana detection. Deputy Paz testified that he has been involved with "well

over a hundred marijuana-growing investigations." He provided testimony about

his specific ability to detect the odor of growing marijuana:

         [Prosecutor]: Can you also indicate the odor of growing marijuana?
         Is there a difference between growing marijuana versus the odor of
         burned marijuana?

         Paz: Yes, yes there is.

         [Prosecutor]: And you have a training experience to tell you the
         difference between those two things?

         Paz: Yes.


         [Prosecutor]: And can you tell us about your training experience
         with the difference between growing marijuana and burned
         marijuana?

         Paz: My initial experience comes from a test where they let you
         smell packaged marijuana, dried marijuana, and then also the new
         class on marijuana grows. And I have extensive field experience
         with the marijuana grows. Being able to recognize when it is an
         actual grow and when they are just drying marijuana or smoking
         marijuana.

         [Prosecutor]: You told me yesterday that you were involved in over
         100 cases of growing marijuana.

         Paz: At least, at least.[18]



         18
              Id.
No. 69357-3-1/9


The cases uniformly hold this is sufficient to support probable cause.

         Third, there was testimony to support a reasonable inference that the milk

parlor was the source of the odor. Deputy Paz described the layout of the

property, stated he could see that the barns were empty and said that "it is

obvious from the road that none of those buildings are being used to grow

marijuana." He testified that the closest house is farther north on Olson Road, at

least a half a mile north. And he stated that the wind was blowing from north to

south.


         Further, he testified that there were two infrared cameras watching the

property. And he testified that the monthly power consumption, according to

records, was "at least ten times above the average for the state of Washington."

         In sum, viewing the affidavits in a commonsense manner, they set forth

sufficient facts to convince a reasonable person of the probability that Hovander

was engaged in criminal activity and that evidence of criminal activity could be

found at the milk barn.

         Hovander argues that Deputy Paz's third smell from Olson Road, which

occurred on October 12, the day after the trespass, is tainted because the

deputies had already definitively determined the source of the smell. But, as
Hovander even states, the evidence of this third smell "duplicates evidence

already in the officer's possession." Thus, Deputy Paz's first and second smells
from Olson Road, on October 7 and on October 11, along with the other

evidence presented, is sufficient to establish probable cause.
No. 69357-3-1/10



        Hovander makes a number of additional arguments that the evidence was

insufficient to support probable cause. None are persuasive.

        First, Hovander argues that the trial court erred in considering testimony

that was first presented at the suppression hearing and was not presented to the

issuing judge. But the trial court's findings and conclusions are irrelevant to our

review of probable cause.19 An appellate court reviews the determination of

probable cause de novo, based on the information that was before the issuing

judge. And, as previously discussed, the record before the issuing judge

contained sufficient evidence to conclude that probable cause existed in this

case.



        Second, Hovander argues that Deputy Paz provided insufficient evidence

of his special expertise to support the conclusion that he could smell growing

marijuana from 376 feet away. But in State v. Johnson, Division Three rejected a

similar argument.20

        In that case, Division Three considered whether evidence that federal

DEA agents smelled marijuana "from the street in front of [Johnson's] house" was

sufficient to support probable cause.21 In concluding that it was, the court looked

to the agents' experience and expertise.22 There, Johnson argued that exact

distances should be included in the affidavit, but the court stated that this is


        19 See Perez. 92 Wn. App. at 4 n.3.

        20 79 Wn. App. 776, 782, 904 P.2d 1188 (1995).

        21 lg\ at 779.

        22 id at 780.

                                              10
No. 69357-3-1/11


"unsupported by case law."23 The Johnson court reiterated that the magistrate
need only draw the reasonable inference that the odor is connected to the

defendant's residence. Hovander provides no authority holding the contrary.
       Third, Hovander argues that "the search warrants contain 'no information

from which one can draw a commonsense inference that [the officers] were able

to determine the source of the smell from their location.'"24 For this argument, he

relies on the dissent in Johnson.25 Such reliance is unpersuasive.

       There, the dissent stated that had the federal agents been "inside the

residence, in a doorway, near an air vent or close to the building when they

detected the smell," then probable cause would exist.26 But it stated: "The

affidavit is silent with respect to [the agents'] distance from [Johnson's] house

and [the agents'] ability to smell marijuana at that distance, as well as other

possibly relevant factors such as landscaping, wind direction and the relative

location of other residences on the street."27 Accordingly, it disagreed with the

majority that there was probable cause.28




       23 JU at 782.

       24 Brief of Appellant at 23 (citing Johnson, 79 Wn. App. at 786).

       25 \± at 22-23 (citing Johnson. 79 Wn. App. at 783 (Schultheis, J.
dissenting)).

       26 Johnson, 79 Wn. App. at 785.

       27 id,

       28 Id at 783.


                                             11
No. 69357-3-1/12


       But, as previously discussed, the affidavits in this case contained

information from which one could draw a reasonable inference that the milk barn

was the source of the odor. Moreover, the factors set forth in the Johnson

dissent is not the test. Thus, Hovander's reliance on the dissent in Johnson is

not persuasive.

       Finally, Hovander argues that evidence of the milk barn's consumption of

electrical power was illegally obtained and that this information should be excised

from the search warrant application. Specifically, he asserts that a subpoena or

letter from the police directing a seizure of power records is not lawful under

Article 1, Section 7 of the Washington State Constitution.

       Hovander first argues that privately owned power records should be

afforded the same protection as bank records and should require a judicial

warrant or subpoena. For this argument, he relies on State v. Miles, where the

supreme court held that bank records are within a person's private affairs and

thus require authority of law to justify an intrusion.29 Power records were not at

issue. But reliance on Miles is misplaced. In Miles, the supreme court expressly

determined that individuals have a protected privacy interest in bank records.30

       In contrast, in In re Maxfield, a supreme court case, a majority of justices

held there is no protected privacy interest in power records.31 Although the court


       29 Brief of Appellant at 46-47 (citing State v. Miles. 160 Wn.2d 236, 247,
156 P.3d 864 (2007)).

       30 Miles, 160 Wn.2d at 244-47.

       31 133 Wn.2d 332, 945 P.2d 196 (1997).


                                             12
No. 69357-3-1/13



was split on the issue, five justices rejected Hovander's argument.32 Accordingly,

Hovander's general assertion that these power records should be afforded the

same protection as bank records is not persuasive.

       Hovander also relies on RCW 42.56.330 for the proposition that

"[personally identifying information may be released to law enforcement

agencies if the request is accompanied by a court order."33 But this statute

expressly relates to public utilities.34 Puget Sound Energy, the utility providing

power here, is neither a public utility nor a municipally owned electrical utility.

Accordingly, the requirements of this statute have no relevance to this case.

       Hovander next argues that power records have little weight for probable

cause purposes.35 But the issuing judge heard testimony that the property's

consumption was at least ten times above the average Washington power bill.

He also heard testimony from Deputy Paz that the only electrical usage he could

observe was some low power lights at night. Further, "[w]hile an increase in

electrical consumption by itself does not constitute probable cause to issue a

search warrant, the increase, when combined with the other suspicious facts, is a




       32 Id. at 344-49 (Madsen, J. concurring).

       33 Brief of Appellant at 46 (quoting RCW 42.56.330).

       34 See RCW 42.56.330.

       35 Brief of Appellant at 47 (citing State v. McPherson, 40 Wn. App. 298,
698 P.2d 563 (1985)).


                                              13
No. 69357-3-1/14


proper factor in determining whether probable cause exists."36 Accordingly, this
evidence had some probative value.

                                   Franks Hearing

       Hovander argues that the trial court erred when it concluded that Deputy

Paz neither recklessly nor intentionally failed to disclose information to the search

warrant magistrate. We disagree.

       A defendant is entitled to a Franks hearing to challenge the truthfulness of

factual statements made in an affidavit supporting a search warrant.37

       A court begins with the presumption that the affidavit supporting a search

warrant is valid.38 Then, "[a]s a threshold matter, the defendant must first make a

'substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is necessary to the

finding of probable cause.'"39

       Reckless disregard for the truth occurs when the affiant "'in fact

entertained serious doubts as to the truth' of facts or statements in the

affidavit."40 Such "serious doubts" are shown by "'(1) actual deliberation on the



       36 State v. Cole. 128 Wn.2d 262, 291, 906 P.2d 925 (1995).

       37 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       38 Franks, 438 U.S. at 171.

       39 State v. Atchlev. 142 Wn. App. 147, 157, 173 P.3d 323 (2007) (quoting
Franks. 438 U.S. at 155-56).

      40 State v. Clark, 143 Wn.2d 731, 751, 24 P.3d 1006 (2001) (quoting State
v. O'Connor, 39 Wn. App. 113, 117, 692 P.2d 208 (1984)).
                                             14
No. 69357-3-1/15


part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of

the informant or the accuracy of his reports.'"41 Assertions of mere negligence or

innocent mistake are insufficient.42

       The defendant's allegations must be accompanied by an offer of proof,

including "relevant statements of witnesses and reasons supporting the claims."43
       The same test is used for material omissions of fact44 "In examining

whether an omission rises to the level of a misrepresentation, the proper inquiry

is not whether the information tended to negate probable cause or was

potentially relevant, but, [rather, the court must find] the challenged information
was necessary to the finding of probable cause."45
       If the defendant succeeds in showing a deliberate or reckless omission,

then the omitted material is considered part of the affidavit.46 "If the affidavit with

the matter deleted or inserted, as appropriate, remains sufficient to support a

finding of probable cause, the suppression motion fails and no hearing is
required."47




       41 id (quoting O'Connor, 39 Wn. App. at 117).

       42 Atchlev, 142 Wn. App. at 157.

       43 Id.

       44 State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992).

       45 Atchlev, 142 Wn. App. at 158.

        46 Id

        47 Garrison, 118 Wn.2d at 873.


                                               15
No. 69357-3-1/16


       A trial court's conclusion that the affiant did not recklessly omit material

facts in obtaining a search warrant should be upheld where such determination is

not clearly erroneous.48 Great deference is given to the trial court's factual

findings.49

       Here, Hovander contends that Deputy Paz acted recklessly when he: (1)

failed to disclose that he believed the milk barn had been the site of a medical

marijuana grow operation in the past; (2) testified that the closest building was a

mile farther north when, in fact, Hovander's house was located 197 feet away;

and (3) failed to disclose that he was 376 feet away from the milk barn when he

detected an odor of growing marijuana.

       Hovander had the burden of making a substantial preliminary showing that

Deputy Paz recklessly failed to disclose information to the issuing magistrate. In

his offer of proof, Hovander pointed out inconsistencies between Deputy Paz's

search warrant testimony and report. He included a declaration from Hovander,

which asserted that: Deputy Paz knew of a prior investigation involving a medical

grow operation at Hovander's property, that the milk barn is 376 feet away from

the gap in the tree line, and that Hovander's residence is 197 feet away from the

gap in the tree line. He also included an aerial photograph showing these

distances and other buildings.

       The superior court made the following conclusion:




       48 See Chenoweth. 160 Wn.2d at 481.

       49 Atchlev, 142 Wn. App. at 154.


                                             16
No. 69357-3-1/17


                 It was neither a reckless nor intentional omission of material
       fact to not provide the issuing magistrate with information regarding
       the year earlier medical marijuana investigation and the showing
       has not been made requiring a hearing under Franks v. Delaware.
       The medical marijuana information would, at best, have provided a
       potential defense or mitigating circumstance for a charging
       decision. Deputy Paz was under no duty to advise the magistrate
       that in the prior year he believed that there was a marijuana
       growing operation in the milking parlor. Two reasons support this
       conclusion. Firstly, this information is inaccurate. Secondly, on the
       occasions when Deputy Paz visited 5268 Olson Road, he would not
       have detected the odor of growing marijuana emanating from the
       residence at 5208 Olson Road due to the wind direction at the
       location where he was conducting his investigation.[50]

       As the trial court correctly noted, Deputy Paz's belief that the farm was the

site of a prior legal grow operation would not be material to the determination of

probable cause. At best, it would have provided a potential defense.

Accordingly, this conclusion was not clearly erroneous.

       Additionally, none of the other alleged misstatements and omissions

warranted a Franks hearing.

        First, although the record shows that there were inconsistencies between

Deputy Paz's report and his testimony, there is no evidence that he acted

intentionally. Thus, the question is whether he acted with a reckless disregard

for the truth.

        Deputy Paz testified that the milk barns were "fairly close" to Olson Road.

Hovander's declaration shows that the distance from the tree line to the milk barn

is 376 feet. This statement does not show reckless disregard for the truth.

Further, even if it did, this fact is not material because it is not "necessary" to the



        50 Clerk's Papers at 141.

                                               17
No. 69357-3-1/18


determination of probable cause.51 The issuing judge understood Deputy Paz's

location to be sufficiently close to detect the smell of marijuana and the precise

distance is not critical to establish probable cause.

       The next question is whether Deputy Paz acted recklessly when he

testified that the closest house was "farther north on Olson Road ... at least a

half a mile, maybe three-quarters of a mile at the north." The aerial photograph

and declaration submitted by Hovander showed that Hovander's house was 197

feet away to the southeast, that a neighbor's house was 360 feet to the

southwest, and that a trailer was 254 feet to the east. Given this photograph,

there was reason to doubt the accuracy of Deputy Paz's statement to the extent

of his estimate of distance.

       But even if Deputy Paz recklessly misstated the location of the closest

house and omitted the fact that Hovander's house was 197 feet away, neither the

misstatement nor the omission was material. Although this information could

undercut probable cause, it is not "necessary" to the determination of probable

cause. Even if this information was included, the affidavit still supports a

reasonable inference that the milk barn was the source of the odor, given that the

milk barn was the closet building to the north, the fact that the wind was blowing

from north to south, the infrared cameras on the property, and the power

consumption records. Accordingly, Hovander's showing simplyfalls short of

what Franks requires.




       51 See Atchlev, 142 Wn. App. at 158.


                                             18
No. 69357-3-1/19


                                  2077 Amendments

       Hovander argues that the search warrant was defective because law

enforcement failed to establish that the suspected grow operation was not a

legal, medical grow operation. He argues that the 2011 amendments to RCW

69.51A.040 decriminalized medical marijuana, and law enforcement now bears

the additional burden of showing that the grow operation is not legal.

       Although Hovander made a related argument below, Hovander concedes

that this precise argument was not presented to the trial court. Thus, he did not

preserve this issue for review.

       Hovander cites to In re Nichols for the proposition that this issue may

properly be considered on appeal.52 But he fails to make any argument beyond

that citation to show why we should consider this new argument. Thus, we

decline to consider it.53

                            Independent Source Doctrine

       Hovander next argues that the search of the milk barn was unlawful

because "the trespass prompted the decision to secure a second warrant." We

disagree.

       Evidence that is seized during an illegal search is subject to suppression

under the exclusionary rule.54 The independent source doctrine is a "well-



       52 Brief of Appellant at 50 (citing In re Nichols. 171 Wn.2d 370, 256 P.3d
1131 (2011)).

       53 RAP 2.5(a)(3).

       54 State v. Gaines. 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005).


                                            19
No. 69357-3-1/20


established exception to the exclusionary rule."55 The United States Supreme

Court's decision in Murray v. United States56 is the "'controlling authority' defining

the contours of the independent source exception."57 In Murray, the court held

that the Fourth Amendment does not require the suppression of evidence

discovered during police officers' illegal entry if that evidence is also discovered

during a later search pursuant to a valid search warrant that is independent of the

illegal entry.58 It stated that:

             The ultimate question ... is whether the search pursuant to
       warrant was in fact a genuinely independent source of the
       information and tangible evidence at issue here. This would not
       have been the case if the agents' decision to seek the warrant was
       prompted by what they had seen during the initial entry, or if
       information obtained during that entry was presented to the
       Magistrate and affected his decision to issue the warrant.1591

       Accordingly, in Washington, courts have interpreted the requirements in

Murray to have two prongs, both of which must be satisfied. "Under the

independent source exception, an unlawful search does not invalidate a

subsequent search if (1) the issuance of the search warrant is based on

untainted, independently obtained information and (2) the State's decision to

seek the warrant is not motivated by the previous unlawful search and seizure."60



       55 State v. Miles. 159 Wn. App. 282, 291, 244 P.3d 1030 (2011).

       56 487 U.S. 533, 108 S. Ct. 2529, 101 L Ed. 2d 472 (1988).

       57 Miles. 159 Wn. App. at 292 (quoting Gaines. 154 Wn.2d at 721).

       58 Murray. 487 U.S. at 542.

       59 id

       60 Miles. 159 Wn. App. at 284.
                                             20
No. 69357-3-1/21


       Washington courts have adopted the approach taken by a majority of

courts, that the first prong is satisfied so long as the remaining information in the

search warrant affidavit establishes probable cause.61

       The second prong, referred to as the "motivation prong," is a question of

fact that must be determined by the trial court.62

       Findings offact are reviewed for substantial evidence.63 Substantial
evidence is "'evidence sufficient to persuade a fair-minded, rational person of the

truth ofthe finding.'"64 Conclusions of law are reviewed de novo.65
       Here, both "prongs" ofthe independent source doctrine were met, and the

search of the milk barn was lawful.

       First, as previously discussed, there was sufficient information in the

affidavits to support the determination of probable cause.

       Second, the superior court concluded that "[t]he requirements ofthe
independent source doctrine have been met and the investigation would have
continued despite some actions being taken in violation of Article I, Sec. 7 on the




        61 See State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990).

        62 Miles, 159 Wn. App. at 298.

        63 State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).

        64 Id (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722
 (1999)).

        65 State v. Carter, 151 Wn.2d118, 125, 85 P.3d 887 (2004).

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No. 69357-3-1/22


October 11, 2011 visit to the property."66 To support its conclusion, the court

expressly made Finding of Fact 6 related to the State's motivation. It stated:

              The information flowing from the power records, surveillance
       cameras and the detection of the odor of growing marijuana on
       multiple occasions from multiple locations by multiple officers would
       have influenced Deputy Paz to continue his investigation and seek
       search warrants, even if he had not crossed the property line and
      fences on October 11, 2011 J671

       Substantial evidence supports this finding. At the suppression hearing,

Deputy Paz was asked whether he would have continued to investigate the odor

that he had smelled on October 7, given the power records that he received

thereafter. Deputy Paz indicated that he would have. An appellate court does

not review credibility determinations on appeal.68

      Accordingly, based on the testimony at the suppression hearing, the court

properly found that Deputy Paz would have continued his investigation.

       Hovander argues that the State fails to satisfy the motivation test because

the illegal activity was the decision to seek both the first and second warrant and

because the motivation test "requires a court finding that the deputies would have

secured a search warrant if Deputy Paz had not trespassed." Hovander also

argues that the "more probable explanation is that [the deputies] would not have

sought a search warrant had Deputy Paz not illegally trespassed." But these

arguments ignore Finding of Fact 6, as previously discussed, where the trial court



       66 Clerk's Papers at 141.

       67 id at 140.

       68 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).


                                            22
No. 69357-3-1/23



did make such a finding and disagreed with Hovander's argument. Thus, these

arguments are not persuasive.

       Hovander cites to Murray and asserts that there is a "disconnect' with the

command in Murray.69 He then argues that Deputy Paz returned to the "same

magistrate and presented the additional evidence regarding an independent

smell of the odor of marijuana merged with the evidence of the first search

warrant."70 Hovander's argument is not fully briefed, but it appears that he is

pointing to the clause in Murray that suggests that the independent source

doctrine is not met "if information obtained during that entry was presented to the

Magistrate and affected his decision to issue the warrant."™

       But even if this is what Hovander argues, the majority of courts have

concluded that this part of Murray is dictum and is "inconsistent with the overall

tenor of the opinion and with prior case law."72 Washington courts have agreed

with the majority of other courts and have concluded that a warrant is valid if the

lawfully obtained evidence in the application supports probable cause.73

       Finally, Hovander asserts that the attenuation doctrine and the

independent source doctrine are prohibited under Article 1, Section 7 of the



       69 Brief of Appellant at 40 (citing Murray. 487 U.S. at 542).

       70 id

       71 Murray. 487 U.S. at 542 (emphasis added).

       72 State v. Spring. 128 Wn. App. 398, 404-05, 115 P.3d 1052 (2005)
(quoting State v. Chanev. 318 N.J. Super. 217, 224, 723 A.2d 132 (1999)).

       73 id at 405.

                                             23
No. 69357-3-1/24


Washington State Constitution "in the same manner as was the inevitable

discovery rule, which was abrogated in State v. Winterstein."74 He states that the

issue "is currently before the state supreme court in State v. Smith."75 And he

"notes" that in the event the supreme court abrogates the attenuation doctrine

and the independent source doctrine, then the search warrants in this case will

"collapse."

       But the supreme court decided State v. Smith in June 2013, and it did not

abrogate these doctrines.76 Because Hovander does not make any further

argument to support his assertion that these doctrines violate the constitution, we

decline to further address his claims.77

       We affirm the judgment and sentence.              /*
                                                         fe*,X

WE CONCUR:




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                                                 y^ftuwij Q


       74 Brief of Appellant at 16 (citing State v. Winterstein, 167 Wn.2d 620, 220
P.3d 1226 (2009)).

       75 id (citing State v. Smith, 173 Wn.2d 1034, 277 P.3d 669 (2012)).

       76 177 Wn.2d 533, 303 P.3d 1047 (2013).

       77 See State v. Johnson. 119Wn.2d 167, 171,829P.2d 1082(1992)
(declining review of constitutional issues unsupported by reasoned argument).

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