Seattle Attorneys Blog
Both the Fourth Amendment to the U.S. Constitution and article I, section 7 of the Washington State Constitution require probable cause for a search warrant to be issued. Evidence obtained from an illegal search must be suppressed. State v. Betancourth. Even if a search warrant was obtained, evidence seized pursuant to the warrant must be suppressed if there was not probable cause. State v. Gudgell.
A defendant recently challenged his convictions, arguing the there was not probable cause for the search warrant. According to the unpublished opinion of the appeals of the appeals court, he was charged with the manufacture of marijuana after law enforcement found 149 cannabis plants inside his home.
The defendant moved to suppress the evidence, arguing the search warrant had not been supported by probable cause. The court denied his motion to suppress and found him guilty in a bench trial.
The affidavit supporting probable cause for the warrant stated police had received a tip there was marijuana grown indoors at the defendant’s home. It also stated the windows of an RV storage garage at the property were covered in black plastic and marijuana could be smelled from the road. There was also an unusually high consumption of power at the home. Washington State Patrol learned from the Washington State Liquor and Cannabis Board that no marijuana licenses or marijuana cooperative permits were associated with the address. The affidavit did not state, however, whether law enforcement contacted the Department of Agriculture regarding a possible permit for hemp production.
The trial court determined there was sufficient information to conclude the defendant was probably illegally manufacturing marijuana and denied his motion.
The facts were stipulated and the court found the defendant guilty. The court sentenced him to 12 months of community custody.
The defendant appealed. He argued the search warrant did not state whether law enforcement had contacted the Department of Agriculture to determine if the defendant could be growing hemp legally. He argued, therefore, that there was not probable cause to support the search warrant.
The defendant argued that there was not probable cause that there was an illegal grow at his residence instead of a licensed grow.
Because the affidavit did not state whether the Department of Agriculture had been contacted regarding a permit for hemp production, it was possible the defendant was legally growing hemp. On appeal, the state conceded that the affidavit did not establish probable cause that the defendant was illegally growing cannabis. The state also conceded there is not a sufficient basis for a warrant if the facts are consistent with a legal activity, although there could also be a criminal explanation.
The appeals court reversed and remanded to the trial court to vacate the conviction.
Both the Washington State Constitution and the U.S. Constitution protect individuals from unlawful searches and seizures. If you are facing drug charges arising from a search, an experienced Washington criminal defense attorney can review the facts of your case to identify any potential challenges to the search. Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.