               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 38580

STATE OF IDAHO,                                 )     2011 Unpublished Opinion No. 730
                                                )
       Plaintiff-Respondent,                    )     Filed: December 2, 2011
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
DAVID ALLEN LONG,                               )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

       Order denying motion to suppress evidence, affirmed.

       Michael S. Jacques, Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
LANSING, Judge
       David Long appeals from the judgment entered upon his conditional guilty plea to
manufacturing marijuana. Long contends the district court erred in denying his motion to
suppress evidence obtained pursuant to a search warrant.
                                               I.
                                       BACKGROUND
       On July 6, 2010, the State requested issuance of a warrant to search David Long’s
residence. The magistrate conducted a hearing at which a detective with the Idaho State Police
testified in support of the issuance of the warrant. The detective first described how a typical
indoor marijuana growing operation works and described some of the common features of a




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clandestine growing operation. 1 The most significant portions of the testimony are summarized
as follows.
       At some point prior to July 1, 2010, a detective with the Idaho State Police received a tip
regarding activity at a house that was later determined to be David Long’s residence. The tip
indicated that the exterior lights of the house remained on during a neighborhood-wide power
outage, fans had been mounted into the back door, bright lights shone out of the house at night,
something was covering the windows in an apparent attempt to prevent the light from shining
through, and the resident living in the house was seen only when mowing the lawn. The
detective visited the house and confirmed that a “30-inch piece of plywood that went from the
base of the door to the top” had been installed in the back door, with “what appeared to be [two]
exhaust fans custom built into the plywood.” The front “blinds were pulled, and behind the
blinds was some sort of non-transparent material . . . [that] looked like aluminum foil cover[ing]
the whole inside of the window.” A noise that sounded like a fan or a generator could be heard
coming from inside the residence. The detective also noted freshly-mowed grass, but no garden.
The detective attempted to make contact, but received no answer. After determining that the
house was rented to Long, the detective conducted a criminal history check and discovered that
Long had “three convictions for marijuana type crimes.”
       The detective decided to conduct surveillance on Long’s residence.              During the
surveillance, Long was followed to a home-improvement store where “he went to the garden
section[,] [a]ppeared to be looking in the fertilizer area[,] [t]alked to some people in the outdoor
garden section and then left the store without purchasing anything.” He was then followed to
another home-improvement store where he again went to the garden section, was in the fertilizer
area, spoke to several of the people in the garden section, and left the store without purchasing
anything. Long was followed to a third home-improvement store where he looked at fertilizer
and liquid grow mixtures and looked at starter plant boxes, which were little crates that would
hold seventy-two starter plants. After looking at these items, Long spoke to people in the garden
section and left without purchasing anything. While Long was visiting the home-improvement

1
        He explained that intricate lighting and watering systems, purchases of or interest in large
quantities of garden supply materials, window films or screening materials that can block light
and create privacy, exhaust fans that can dissipate heat, odors, and moisture, and alternate
sources of energy such as generators, were all indicative of marijuana production.


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stores, an officer observed what he believed could be a disguised forty to seventy-gallon fuel
tank that was flat and covered the whole bed of Long’s truck. The detective testified that the
tank could be used to transport fuel for a generator.
       During the hearing, the detective was questioned by the Canyon County Prosecutor as
follows:
       Q:       “[F]rom what you’re telling me, is it your belief that he is setting up a
       grow operation . . . ?
       A.       It’s -- it’s my opinion that there is a current grow in there and he’s either
       grafting off larger plants or making clones of the plants he does have or he’s in
       the initial phases of it.
       Q.       Can you tell the judge why you believe that?
       A.       The reason I know it’s currently in a phase -- a growing phase is on
       Sunday night, the 4th of July, about midnight, 11:45, I drove by the residence. I
       could see a very bright light emanating from the front room. I could see the
       silhouette of something covering the window and I could see the real bright white
       growing type lights shining out of that window. I could see the multi-colors, the
       purples, the blues that are prevalent in those lights. I could see it coming out of
       the window.
       Q.       So in your earlier testimony, you talked about a sodium halide light and
       the various types of colors of light that those lights produce.[ 2] Is that what you
       thought you were seeing?
       A.       Yes. It appeared to be a sodium halide light shining out of that window.
       Q.       And those are utilized for indoor growing operations?
       A.       Yes.

       Based on this evidence, the magistrate issued a warrant to search Long’s residence. Upon
a search of the residence, officers discovered approximately twenty-one marijuana plants located
in a homemade closet, with an elaborate system of lights, vents, and growing equipment. Long
filed a motion to suppress the evidence discovered as a result of the search. He contended there
was no showing of probable cause for issuance of the search warrant. The district court denied
the motion. On appeal, Long asserts that evidence presented to the magistrate did not constitute
a substantial basis upon which the magistrate could properly find probable cause.




2
        The detective had previously testified that marijuana production is typically
accomplished through the use of “multi-color” “sodium halide lamp” that produces “a really
bright white light.”

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                                                II.
                                           ANALYSIS
       In order for a search warrant to comply with the Fourth Amendment to the United States
Constitution, it must be supported by probable cause to believe that evidence or fruits of a crime
may be found in the place to be searched. State v. Josephson, 123 Idaho 790, 792-93, 852 P.2d
1387, 1389-90 (1993); State v. Belden, 148 Idaho 277, 280, 220 P.3d 1096, 1099 (Ct. App.
2009). The affidavit or testimony supporting the issuance of a warrant must be based on
substantial evidence, and must provide the magistrate with a substantial basis to believe that
probable cause exists. I.C.R. 41(c). See, e.g., State v. Chandler, 140 Idaho 760, 762, 101 P.3d
704, 706 (Ct. App. 2004).
       There is no bright-line test or prescribed set of rules to determine whether probable cause
exists. Instead, as described by the United States Supreme Court:
       The task of the issuing magistrate is simply to make a practical, common-sense
       decision whether, given all the circumstances set forth in the affidavit before him,
       including the “veracity” and “basis of knowledge” of persons supplying hearsay
       information, there is a fair probability that contraband or evidence of a crime will
       be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983). See also State v. Wilson, 130 Idaho 213, 215, 938
P.2d 1251, 1253 (Ct. App. 1997). The evidence need only be sufficient to show that it would be
reasonable to seek the evidence in the place indicated in the warrant, not that the evidence sought
is there in fact, or is more likely than not to be found there. State v. O’Keefe, 143 Idaho 278,
287, 141 P.3d 1147, 1156 (Ct. App. 2006); State v. Fairchild, 121 Idaho 960, 966, 829 P.2d 550,
556 (Ct. App. 1992).
       When probable cause to issue a search warrant is challenged on appeal, the reviewing
court’s function is to ensure that the magistrate had a substantial basis for concluding that
probable cause existed. Gates, 462 U.S. at 239; State v. Lang, 105 Idaho 683, 684, 672 P.2d 561,
562 (1983); Belden, 148 Idaho at 280, 220 P.3d at 1099. In this evaluation, great deference is
paid to the magistrate’s determination. Gates, 462 U.S. at 236; Belden, 148 Idaho at 280, 220
P.3d at 1099; Wilson, 130 Idaho at 215, 938 P.2d at 1253.            The test for reviewing the
magistrate’s action is whether he or she abused his or her discretion in finding that probable
cause existed. State v. Fisher, 140 Idaho 365, 369, 93 P.3d 696, 700 (2004); State v. Holman,
109 Idaho 382, 387, 707 P.2d 493, 498 (Ct. App. 1985). Our review of the magistrate’s decision


                                                4
to issue the warrant is conducted with due regard for, but independently from, the district court’s
decision. Chandler, 140 Idaho at 762, 101 P.3d at 706. When a search is conducted pursuant to
a warrant, the burden of proof is on the defendant to show that the search was invalid. State v.
Kelly, 106 Idaho 268, 275, 678 P.2d 60, 67 (Ct. App. 1984).
       Long asserts that the testimony presented to the magistrate constituted little more than
bare conclusions offered by an officer engaged in the often competitive enterprise of ferreting
out crime. Magistrates may not issue warrants on “bare bones” affidavits that do not detail any
of the underlying circumstances. Gates, 462 U.S. at 239; United States v. Ventresca, 380 U.S.
102, 108-09 (1965); State v. Weimer, 133 Idaho 442, 446-47, 988 P.2d 216, 220-21 (Ct. App.
1999). For example, in Gates, the Supreme Court explained that neither the “sworn statement of
an affiant that ‘he has cause to suspect and does believe that’ liquor illegally brought into the
United States is located on certain premises,” nor an “officer’s statement that ‘affiants have
received reliable information from a credible person and believe’ that heroin is stored in a
home,” provide sufficient basis for probable cause. Gates, 462 U.S. at 239 (quoting Nathanson
v. United States, 290 U.S. 41, 44 (1933) and Aguilar v. Texas, 378 U.S. 108, 109 (1964)). The
reviewing court ensures that the magistrate “perform[s] his detached function and [does] not
serve merely as a rubber stamp for the police” by conscientiously reviewing the sufficiency of
the affidavit on which a warrant is issued. Ventresca, 380 U.S. at 109; accord State v. Sholes,
120 Idaho 639, 641, 818 P.2d 343, 345 (Ct. App. 1991). See also Gates, 462 U.S. at 239.
       Here, the testimony presented to the magistrate included more than bare conclusions.
Although the detective did express his opinion that a grow operation would be found in Long’s
residence, he supported his opinion with the facts he relied upon to reach this conclusion.
Specifically, the officer described fans mounted in the back door, a foil window covering, bright
lights which appeared to him to be of the type commonly used to grow marijuana indoors,
Long’s demonstrated interest in fertilizer and plant starter boxes despite having no apparent
garden, various facts suggesting the use of a generator, and Long’s criminal history which
included three “marijuana type” offenses. While this evidence is by no means overwhelming, it
provided a substantial basis upon which the magistrate could reasonably determine that probable
cause existed. The magistrate’s decision was based on more than bare assertions and conclusory
statements.




                                                5
       Next, Long appears to argue that because many, if not all, of the facts presented to the
magistrate could have innocent explanations, the evidence could not provide a reasonable basis
for a finding of probable cause. For example, he asserts that the window coverings could have
been used to allow daytime sleep, prevent glare on a television, or provide privacy; that the fans
could have been used to cool the house; and that his interest in fertilizers was consistent with a
well-kept lawn. Evidence presented to a magistrate during a probable cause hearing may often
lead to multiple or conflicting inferences, some of which are innocent, and others of which are
not.   Magistrates do not best accomplish their task either by requiring that all innocent
explanations be excluded before finding probable cause, or by concluding that an activity is
suspicious merely because it is labeled so. See Gates, 462 U.S. at 241. “‘Fidelity’ to the
commands of the Constitution suggests balanced judgment rather than exhortation.” Id. As we
have said in considering whether reasonable suspicion was shown for extending a traffic stop, “a
series of acts that appear innocent, when viewed separately, may warrant further investigation
when viewed together.” State v. Brumfield, 136 Idaho 913, 917, 42 P.3d 706, 710 (Ct. App.
2001) (quoting United States v. Weaver, 966 F.2d 391, 394 (8th Cir. 1992)); accord United
States v. Arvizu, 534 U.S. 266, 277 (2002) (“A determination that reasonable suspicion exists,
however, need not rule out the possibility of innocent conduct”); United States v. Sokolow, 490
U.S. 1, 9 (1989) (“Any one of these factors is not by itself proof of any illegal conduct and is
quite consistent with innocent [activity]. But we think taken together they amount to reasonable
suspicion.”); Terry v. Ohio, 392 U.S. 1, 22 (1968) (officer observed suspects commit “a series of
acts, each of them perhaps innocent in itself, but which taken together warranted further
investigation”).
       This reasoning is applicable to determinations of probable cause. See Massachusetts v.
Upton, 466 U.S. 727, 731 (1984) (reversing after the Supreme Judicial Court of Massachusetts
reasoned that corroboration of innocent, nonsuspicious or public information of an informant’s
tip could not establish probable cause). As explained in Gates, “[i]n making a determination of
probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but
the degree of suspicion that attaches to particular types of non-criminal acts.” Gates, 462 U.S. at
244, n.13.    “In dealing with probable cause . . . as the very name implies, we deal with
probabilities.     These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 231;


                                                 6
accord Brinegar v. United States, 338 U.S. 160, 175 (1949). If the facts presented to the
magistrate could lead to inferences weighing for or against a finding of probable cause, we will
generally defer to the magistrate’s findings. See Ventresca, 380 U.S. at 109 (“[T]he resolution of
doubtful or marginal cases . . . should be largely determined by the preference to be accorded to
warrants.”). Here, the detective’s observations of various indicia of a possible grow operation
being conducted at Long’s home, Long’s actions while under surveillance, and Long’s criminal
history, taken together, provided the basis for a finding of probable cause, even if each fact alone
would have supported innocent inferences. Thus, the magistrate did not abuse his discretion.
       Finally, Long challenges the accuracy of many of the facts presented to the magistrate.
Long acknowledges that a post-search hindsight review of the facts is an inappropriate standard
to review the sufficiency of a probable cause determination. See Upton, 466 U.S. at 733 (1984).
He nevertheless contends that after the search, it was clear that the marijuana plants were located
entirely inside a closet, the lights viewed by the officer were houselights unrelated to the grow
operation, the window covering was not employed to conceal the grow operation, there was no
generator located in the home, there was no fuel tank in the bed of Long’s truck, and the fans
mounted in the back door of Long’s residence were used to dissipate exhaust generated from a
legal indoor beer-brewing operation. 3     Long appears to be arguing, in part, that false or
misleading testimony was presented to the magistrate. 4 If Long believed that the detective
misled the magistrate intentionally or with reckless disregard of the truth, he could have
requested an evidentiary hearing to demonstrate such misconduct. See Franks v. Delaware, 438
U.S. 154 (1978); State v. Kay, 129 Idaho 507, 511, 927 P.2d 897, 901 (Ct. App. 1996). Because
Long did not request a Franks hearing, he did not preserve this issue nor allow the State an



3
         Many of the facts Long relies upon to support his hindsight review are not contained
within the record presented on appeal. Long presented similar unsupported arguments before the
district court, prompting the district court to remind the parties that the court is limited to the
facts in the record. We are also so constrained.
4
        Long explicitly asserts that the evidence of a generator “consisted entirely of speculation
and amounts to nothing more than ‘the Government attempt[ing] to spin these largely mundane
acts into a web of deception.’” Similarly, Long implies that the detective misled the court by
testifying that grow lights produce a multi-colored spectrum of light, and then inconsistently
testifying that he believed the light coming from Long’s house was a grow light because it was
“bright white.”

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opportunity to present responsive evidence. Therefore, we will not address this issue on appeal.
See Chandler, 140 Idaho at 763 n.2, 101 P.3d at 707 n.2.
                                              III.
                                       CONCLUSION
       The testimony provided to the magistrate provided a substantial basis to support a finding
of probable cause. The magistrate’s decision was not an abuse of discretion. Therefore, we
affirm the denial of Long’s suppression motion.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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