114 Wn.2d 761, STATE v. MAXWELL

CITE:          114 Wn.2d 761, 791 P.2d 223

               STATE v. MAXWELL

CAUSE NUMBER: 56567-8

FILE DATE:     May 17, 1990

CASE TITLE: The State of Washington, Respondent, v. Edward
               A. Maxwell, Petitioner.

[1] Electricity - Open Government - Public Disclosure - Consumption of Electricity - Police Investigation - Request in Writing Violation. A telephonic request made to a public utility by law enforcement personnel to determine the electricity usage at a particular address is a violation of RCW 42.17.314, which requires that all such requests for information be accompanied by a written statement stating the reasons for the request.

[2] Electricity - Open Government - Public Disclosure - Consumption of Electricity - Statutory Provisions - Scope - Probable Cause To Search. An application for a search warrant is a "criminal proceeding" for purposes of RCW 42.17.314, which provides that evidence of electric power usage obtained in violation of statutory requirements is inadmissible in any criminal proceeding.

[3] Searches and Seizures - Warrant - Probable Cause - Determination - In General. Probable cause to search is established when sufficient information is provided by an informant that would lead a reasonable person to conclude that the defendant is involved in criminal activity, or if the informant's facts are not sufficient, they are buttressed by independent police investigation.

[4] Searches and Seizures - Warrant - Affidavit - Sufficiency - Connection of Evidence to Suspect. Information cannot be used as evidence of criminal activity in support of a search warrant when no connection has been made between the information and the person suspected of criminal activity.

[5] Searches and Seizures - Warrant - Affidavit - Sufficiency - Identification of Criminal Activity - Necessity. Probable cause to search is not established when the affidavit in support of the warrant fails to indicate what criminal activity is suspected.

[6] Constitutional Law - Appeal - Review - Constitutional Issues - Avoidance. A reviewing court will not decide an issue on constitutional grounds unless absolutely necessary to its determination of the case.

NAMES OF CONCURRING OR DISSENTING JUDGES: Dore and Durham, JJ., concur in the result only.

NATURE OF ACTION: The defendant was charged with the unlawful manufacture of marijuana. Evidence was obtained pursuant to a search warrant based solely on the affidavit of an investigating police officer containing a report of statements made by a "concerned citizen".

Superior Court: The Superior Court for Benton County, No. 87 1-00384-5, Dennis D. Yule, J., on May 20, 1988, suppressed the evidence.

Court of Appeals: Holding that the informant was credible, that the information provided was reliable, that the information in the affidavit established probable cause, and that RCW 42.17.314 did not apply to the obtaining of electricity usage information in this case, the court at 55 Wn. App. 446 REVERSED the suppression order and REMANDED for trial.

Supreme Court: Holding that RCW 42.17.314 is applicable in this case, that the statute was violated by the detective's failure to make a written request for the power usage information, and that probable cause to search was not established, the court REVERSES the Court of Appeals and DISMISSES the prosecution.

COUNSEL:      JEFFREY STEINBORN, for petitioner.

ANDREW K. MILLER, PROSECUTING ATTORNEY, and JEFFREY FINNEY, DEPUTY, for respondent.

MARK W. MUENSTER on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae for petitioner.

AUTHOR OF MAJORITY OPINION: Smith, J.-

MAJORITY OPINION: This appeal is based upon an order suppressing evidence obtained pursuant to a search warrant. Relevant information is based solely on the affidavit supporting the search warrant. The affidavit was executed by Detective T. Carlson of the Benton County Sheriff's Department and contains a report of statements from a "concerned citizen." The trial court, the Honorable Dennis D. Yule, granted the motion to suppress and dismissed the case. The State appealed to the Court of Appeals, Division Three, which reversed and remanded for trial.

We reverse the Court of Appeals and affirm the trial court's dismissal of the case.

The trial court granted defendant's motion to suppress the evidence because the affidavit submitted to the magistrate did not establish probable cause for issuance of a search warrant.

The trial court considered the following facts stipulated by the parties:

1. The "Citizen Informant" was incorrect in his assertion that all windows in the residence to be searched were covered with tin foil: only one window was covered with foil.

2. Citizen was incorrect about license on Chevy Nova. That plate returns to a 1977 Dodge registered to Ann Thorselt.

3. Police investigation failed to establish any link between

David Bruises and the residence, other than the fact that a vehicle registered to him was allegedly seen at the residence.

4. When interviewed by the undersigned counsel and Deputy Prosecuting Attorney Jeff Finney, Benton County Deputy Sheriff Hodge stated that he could not recall who at the power company gave him this information. It might have been the manager, the "security guy," or one of two clerks who work at the office.

5. Detective Carlson failed to advise the magistrate that, although he had been to the front door of the residence at least SEVEN times, he NEVER detected the odor of marijuana, the sound of ballasts or fans, or any bright lights. Detective Carlson was familiar with the smell of growing marijuana, and had used allegations of marijuana smell and/or his observation of bright lights as a part of probable cause for a search warrant.

6. Although Detective Carlson conducted considerable surveillance of the residence, he NEVER saw anyone in the house, or coming or going.

7. In an interview conducted by the undersigned counsel and Deputy Prosecuting Attorney Jeff Finney, Benton County Detective Sheriff Hodge stated that he merely called an acquaintance at the PUD and requested the information. He made no showing as to the basis for his request, nor did he seek or obtain prior judicial approval. He stated that he was investigating a marijuana grow operation.

The affidavit submitted by Detective Carlson stated in its entirety:

"     On approximately 09-16-87 I received information
      from a concerned citizen/neighbor who contacted the Benton
      County Sheriff's Office with the following information;

That a house located at 4103 S. Kent had been rented in
      the last couple of months and that two male subjects had
      moved some items in, but no one had ever moved in, but
      would show up a couple of times a day and stay only 15
      to 30 minutes at a time [SIC]. The citizen also stated
      that all the windows had tin foil on them. I checked
      and found only one window had tin foil and the rest had
      curtains or covers over them. Once the citizen overheard
      two of the subjects talking and heard "if we ever get
      caught doing this, we will be in prison forever." The
      subjects have also been observed backing a U-Haul covered
      trailer into the garage where it's unhooked and the pickup
      pulled out and the garage door pulled down. In 15 to
      20 minutes they exit and open the garage hook up the trailer
      and leave [SIC].

The concerned citizen describes 3 vehicles coming
      and going to the residence the first is a newer dark Chevy
      pickup which I believe is Ed Maxwell's and the second
      is an old ElCamino [SIC] with Oregon lifcense [SIC] which
      belongs to David A. Brusius [SIC]. The concerned citizen
      has been unable to get a license number to a newer Chevy
      Camaro. The 3rd vehicle the citizen gave a license number
      that returns on a 1977 Dodge. But the citizen describes
      it as a Chevy Nova. The citizen will keep an eye out
      for the car.

I checked with PUD and found that the current subscriber
      is a Edward A Maxwell and his girlfriend Traci L. Wood
      of 425 Columbia Center Blvd. Apt. # F-207. I also ran
      all 3 license numbers # 1 UU6847, a 1986 Chevy Pickup belongs
      to Ed A. Maxwell. # 2 Oregon license LJP202, a 1970 El
      Camino belongs to a David A. Bruises from Azalea Oregon
      (Douglas County). # 3 UKF964 a 1977 Dodge belongs to Anne
      F. Thorselt, Puyallup Washington.

I've spent time watching the residence. I've noticed
      that the lawn appears to be dry and uncut. There is only
      two lights on at all times night and day it's the same
      lights the front porch and an interior hall light [SIC].
      I've found no signs of habitation in the residence. I've
      noticed no trash cans out on the curb on garbage day.
      I checked with Kennewick Disposal and found there to be
      no scheduled service to that residence.

I've contacted the PUD they stated that the power
      usage is normal for a residence that size and it [SIC]
      it's being lived in and used but they felt that if no
      one was living there then the usage is abnormally high.

The concerned citizen states that when this started
      back a couple of months months [SIC] ago that most of
      the visits were in the daytime. Then recently the visits
      change to later in the evening. At approximately 1100
      pm still only lasting 15 to 20 minutes [SIC].

I've checked all the names provided by BIPIN and
      DOL and I've discovered that David A. Brusius [SIC], the
      registered owner of the 1970 Chevy ElCamino [SIC], Oregon
      license LPJ202 had been convicted on 10-27-78 on a grand
      jury warrant for manufacture of a controlled substance
      ti-wit [SIC]; marijuana in Douglas County Oregon. And
      that he pled guilty to possession for less then [SIC]
      one ounce of marijuana.

A search warrant was issued based upon the affidavit. 1


1 The record does not indicate what offense Edward Maxwell was charged with, although he states in his petition for review, and his attorney agreed in argument, that he was charged with the offense of unlawful manufacture of marijuana.

The record does not indicate what was obtained from the
      search, although Petitioner Maxwell states in his petition
      for review that 20 marijuana plants growing under two lights
      were seized.



In its appeal to the Court of Appeals, Division Three, the State contended that the credibility of the informant and the reliability of the information were established and that the information in the affidavit established probable cause. 2


2 STATE v. MAXWELL, 55 Wn. App. 446, 778 P.2d 51 (1989).



The Court of Appeals agreed and reversed and remanded for trial. The court noted that while most of the information in the affidavit may only rise to the level of suspicion, the statement overheard by the citizen, "if we ever get caught doing this, we will be in prison forever," raised it to the level of probable cause.

The Court of Appeals noted that RCW 42.17.314 (which requires a written statement to the public utility district for inspection or copying of records of any person and contains the restriction that information obtained in violation of the statute is not admissible in any criminal proceeding) did not apply because application for a search warrant is not a criminal proceeding, and that obtaining current usage information did not require copying or inspecting records. 3


3 STATE v. MAXWELL, 55 Wn. App. 446, 453-54, 778 P.2d 51 (1989).



Edward A. Maxwell petitioned this court for discretionary review. We granted review. STATE v. MAXWELL, 113 Wn.2d 1028, 784 P.2d 532 (1989).

The questions presented in this case are:

1. Whether a law enforcement officer's obtaining a record of current power usage through a telephone request to the public utility violated RCW 42.17.314; and

2. Whether a law enforcement officer's obtaining of the record of current power usage from the public utility violated article 1, section 7 of the Washington State Constitution.

Petitioner Maxwell contends the Court of Appeals "judicially nullified" RCW 42.17.314. The statute provides:

"     A law enforcement authority may not request inspection
      or copying of records of any person, which belong to a
      public utility district or a municipally owned electrical
      utility, unless the authority provides the public utility
      district or municipally owned electrical utility, with
      a written statement in which the authority states that
      it suspects that the particular person to whom the records
      pertain has committed a crime and the authority has a
      reasonable belief that the records could determine or
      help determine whether the suspicion might be true. Information
      obtained in violation of this rule is inadmissible in
      any criminal proceeding.

RCW 42.17.314.

In 1987 the Legislature enacted RCW 42.17.314 in response to IN RE ROSIER, 105 Wn.2d 606, 717 P.2d 1353 (1986). 4


4 SEE Final Bill Report, Substitute House Bill 4, 50th Legislature (1987). See Intent- note following RCW 42.17.255.



That was a case construing the public disclosure act, RCW 42.17. In ROSIER, this court applied a balancing test for determining whether to release information contained in public records. 5


5 IN RE ROSIER, 105 Wn.2d 606, 717 P.2d 1353 (1986).



The court stated that generally a public agency may not inquire into the purpose for which information is sought; however, an exception is warranted where law enforcement seeks records of power consumption of a particular person. This court stated that the utility company should require requesting officers to articulate a specific suspicion of particular illegal conduct, rather than a mere "'reason' for the request, whenever they seek disclosure of particular information matched to a specific individual." 6


6 IN RE ROSIER, 105 Wn.2d at 615.



Following IN RE ROSIER, 7


7 See Intent- note following RCW 42.17.255; Final Bill Report, Substitute House Bill 4, 50th Legislature (1987).



SUPRA, the Legislature in 1987 amended the public disclosure act. It codified the requirement that law enforcement personnel seeking records of a public or municipal utility have specific suspicion of criminal activity; and further required that law enforcement personnel make their requests in writing. 8


8 RCW 42.17.314.



In this case, the officer telephoned the utility to determine the identity of the current subscriber for a particular address and then requested usage for that address. The Court of Appeals concluded that RCW 42.17.314 did not apply because obtaining current usage information did not involve copying or inspecting records.

[1, 2] The detective's request by telephone in this case circumvented the statutory requirement that law enforcement personnel make written requests for information pertaining to a particular person's record of power consumption. RCW 42.17.314 specifically provides that information obtained in violation of its rule is not admissible in any criminal proceeding. The Court of Appeals in this case concluded that an application for a search warrant is not a "criminal proceeding." This is not correct, at least as applied to this case. Issuance of a search warrant is part of criminal process and involves a matter of procedure. 9


9 STATE v. FIELDS, 85 Wn.2d 126, 530 P.2d 284 (1975).



Logically, then, application for and issuance of a search warrant is a "criminal proceeding" within the meaning of RCW 42.17.314. This does not mean, however, that a case has been filed at this stage of the proceedings, nor that such defense rights as MIRANDA 10


10 SEE MIRANDA v. ARIZONA, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).



warnings or appointment of counsel become operative at this stage.

Information was obtained from the utility company in this case in violation of the statute. It should not have been considered by the magistrate for issuance of the search warrant. 11


11 RCW 42.17.314.



A search warrant based upon an affidavit containing illegally obtained information is not rendered invalid, however, if the affidavit contains otherwise sufficient facts to establish probable cause independent of the illegally obtained information. 12


12 STATE v. COATES, 107 Wn.2d 882, 888, 735 P.2d 64 (1987).



[3] Probable cause is established in an affidavit supporting a search warrant by "setting forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity." 13


13 STATE v. HUFT, 106 Wn.2d 206, 209, 720 P.2d 838 (1986) (citing STATE v. CORD, 103 Wn.2d 361, 365, 693 P.2d 81 (1985)).



Even if information supplied by an informant does not establish probable cause, it may be established by independent police investigation. The investigation must point to suspicious activities or indications of criminal activity along the lines suggested by the informant. The investigation would not be sufficient if it corroborates only innocuous facts. 14


14 STATE v. HUFT, 106 Wn.2d 206, 720 P.2d 838 (1986) (increased electrical consumption and bright light emitting from basement not sufficient probable cause to issue search warrant). CF. STATE v. MURRAY, 110 Wn.2d 706, 757 P.2d 487 (1988) (increased electrical consumption and description of the house were innocuous details; but combined with evidence of electric fan usage, extreme levels of heat observed in the basement and the basement's notable darkness, as well as informant's statement that marijuana was being grown in the house, was sufficient probable cause for issuance of search warrant).



In addition to the information obtained from the utility company, the affidavit contained description by the "concerned citizen" of frequent brief visits; description by the citizen of three vehicles; a statement overheard by the citizen; and description of a window covered with tin foil. However, without the information obtained from the utility company, the detective could not have determined the identity of persons renting the premises.

[4] In this case, the Court of Appeals, although reviewing the entire affidavit, relied for the primary indication of criminal activity on the alleged statement of an unidentified person reportedly overheard by the "concerned citizen" at an undisclosed time and related to Detective Carlson, who reported it in his affidavit. However, the statement was not in any manner connected to Petitioner Maxwell. Out of context, it means nothing. 15


15 SEE STATE v. MAXWELL, 55 Wn. App. 446, 457, 778 P.2d 51 (1989) (Thompson, C.J., dissenting).



Even if the statement were evidence of criminal activity, it does not support a reasonable probability that the activity was occurring at the time the warrant was issued. 16


16 SEE STATE v. HIGBY, 26 Wn. App. 457, 460, 613 P.2d 1192 (1980) (citing SGRO v. UNITED STATES, 287 U.S. 206, 77 L. Ed. 260, 53 S. Ct. 138, 85 A.L.R. 108 (1932)).



[5] Although a magistrate reviewing an affidavit for a search warrant is accorded deference, that deference is not boundless. 17


17 SEE STATE v. HUFT, 106 Wn.2d 206, 211-12, 720 P.2d 838; UNITED STATES v. LEON, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).



The affidavit does not indicate what criminal activity was suspected. The only mention of "marijuana" is the reference to David A. Bruises' prior conviction. 18


18 CF. STATE v. MURRAY, 110 Wn.2d 706, 757 P.2d 487 (1988) (informant asserted personal knowledge of marijuana being grown in the house).



We conclude that the evidence in this case does not constitute sufficient facts for a reasonable person to determine that criminal activity was occurring.

[6] Petitioner Maxwell claims that obtaining his record of power consumption violated his right under article 1, section 7 of the Washington Constitution not to be disturbed in his private affairs without authority of law. This court has never decided this issue. 19


19 SEE STATE v. MURRAY, 110 Wn.2d 706, 757 P.2d 487 (1988); STATE v. HUFT, 106 Wn.2d 206, 720 P.2d 838 (1986); IN RE ROSIER, 105 Wn.2d 606, 717 P.2d 1353 (1986).



"A reviewing court should not pass on constitutional matters unless absolutely necessary to its determination of the case." 20


20 STATE v. NG, 110 Wn.2d 32, 36-37, 750 P.2d 632 (1988).



It is not necessary for us to address the issue in this case and we decline to do so.

We conclude that obtaining by a law enforcement officer of Petitioner Maxwell's record of power consumption merely through a request by telephone violated RCW 42.17.314. The information having been obtained in violation of the statute, it was not admissible in proceedings for issuance of a search warrant. The statute prohibits admission in any criminal proceeding of information obtained in violation of its terms. An application for a search warrant is part of a criminal proceeding under the facts of this case.

We reverse the Court of Appeals and affirm the trial court in dismissing this case.

CONCURRING JUDGES: Callow, C.J., and Utter, Brachtenbach, Dolliver, Andersen, and Guy, JJ., concur.

Dore and Durham, JJ., concur in the result.