STATE OF WASHINGTON, Respondent,
v.
REGNANDO CANTO LOPEZ, Appellant.
No. 24438-5-III.
Court of Appeals of Washington, Division Three.
Filed: April 10, 2007.

        Appeal from Spokane Superior Court. Docket No: 03-1-03407-1. Judgment or order under review. Date filed: 01/04/2005.

        This appeal follows a conviction for possession of marijuana with intent to deliver. The trial court refused to suppress the results of a police search of the defendant's home. He assigns error to this. He contends the affidavit was misleading or, at least, deficient. We agree with the trial judge that the detective's affidavit (including the smell of marijuana, high power usage, a previous conviction for possession of marijuana) was sufficient to support the conclusion of probable cause. Nor are we able to conclude, based on the court's unchallenged finding, that the detective who signed the affidavit made misrepresentations (by commission or omission) or that those claimed misrepresentations would have been material in any event. We therefore affirm the conviction.

FACTS

        A jury convicted Regnando Lopez of possessing marijuana with intent to deliver. Police had executed a search warrant and found a marijuana grow operation in Mr. Lopez's house.

        Mr. Lopez moved to suppress the fruits of the search warrant. He argued that the affidavit in support of the warrant was insufficient and that the police had failed to include information that would have undermined the conclusion of probable cause. The detective's affidavit recited evidence of high power usage. But Mr. Lopez complained that the affidavit did not disclose the presence of a hot tub, air conditioner, or other large appliance.

        The affidavit in support of the search warrant included the representations of a detective. He detected a faint odor of marijuana coming from the direction of Mr. Lopez's residence while he stood on a neighboring porch. The detective then requested Mr. Lopez's power usage records from a private power company, Avista. He compared those to a neighbor's usage. The comparison showed unusually high electrical usage for Mr. Lopez's house. The detective noted that this is common for homes with marijuana grow operations. The affidavit reflected that Mr. Lopez had a prior drug conviction for possession of more than 40 grams of marijuana. And someone connected to the house had recently visited a garden supply store frequented by marijuana growers.

        The trial court concluded that the detective had not made any intentional misrepresentations in the affidavit. The court also concluded there was nothing in those representations Mr. Lopez objected to that were material anyway. And the judge refused to suppress the results of the search.

        A jury found Mr. Lopez guilty of possession of marijuana with intent to deliver.

DISCUSSION

Adequacy of the Record on Appeal

        Mr. Lopez provided only the transcript and pertinent clerk's papers from the suppression hearing. He did not provide the report of proceedings of the trial. The State argues that he cannot, then, show that any of this drug evidence was harmful because he cannot show that it was used to convict him. Certainly, Mr. Lopez must provide an adequate record for us to consider his assignments of error. State v. Rienks, 46 Wn. App. 537, 544-45, 737 P.2d 1116 (1987). And we will not consider matters not included in the record. State v. Likakur, 26 Wn. App. 297, 301, 613 P.2d 156 (1980).

        But the jury convicted Mr. Lopez of possession of marijuana with intent to deliver. And the State does not suggest any source of evidence to support that conviction other than the fruits of this search warrant. The State, nevertheless, argues that the warrant as a whole clearly authorizes the lawful seizure of marijuana and evidence related to that drug.

        The issues presented here on appeal all turn on the propriety of the trial judge's conclusion that the affidavit in support of the search was adequate. The factual basis for that decision is set out in this record, as are the judge's reasons for denying Mr. Lopez's motion to suppress. The record is, then, adequate for our review. Rienks, 46 Wn. App. at 544-45.

Suppression Issues

        We review the propriety of the court's refusal to suppress evidence in essentially two stages. First, we review the court's findings for substantial evidence, but only if they are challenged. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). If unchallenged, we treat the court's findings as true. Id. We next pass on whether those findings support the judge's conclusion of probable cause. Id. Here, Mr. Lopez does not challenge the court's findings.

Probable Cause

        Mr. Lopez argues that the showing in the affidavit was inadequate to support the magistrate's conclusion of probable cause. Specifically, he contends that the faint odor of marijuana coming from the direction of his house, increased power usage, and his prior drug conviction are not enough to support a nexus between his house and a growing marijuana operation. Appellant's Br. at 18-19.

        To support the conclusion of probable cause, an affidavit must show that a crime has been committed and evidence of a crime can be found at the place to be searched. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998).

        Probable cause by its terms requires a showing of only that — probability; it does not require a prima facie showing of criminal activity. In re Pers. Restraint of Yim, 139 Wn.2d 581, 594-95, 989 P.2d 512 (1999). We also give great deference to the magistrate's conclusion of probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). We read affidavits as a whole in a common sense, nontechnical manner and resolve doubts in favor of the warrant. State v. Casto, 39 Wn. App. 229, 232, 692 P.2d 890 (1984).

        The magistrate based his decision on the following facts. A detective smelled the faint odor of marijuana coming from Mr. Lopez's house when the detective stood on the neighbor's porch. Utility records showed unusually heavy electrical usage. This is common for homes with marijuana grow operations. Mr. Lopez had a prior drug conviction for possession of more than 40 grams of marijuana. And someone connected to the house had recently been to a garden supply store frequented by marijuana growers.

        Mr. Lopez parses out each individual factor and essentially asks us to view it in isolation. He argues that the power records failed to establish a legitimate basis for the search of the house and were misleading in their purpose to show that drugs were being grown. But we look at the affidavit as a whole, not each individual factor separately or hypertechnically. Perez, 92 Wn. App. at 4. The power records alone may not establish probable cause, but added with the other evidence (marijuana odor coming from the house and prior conviction) they readily support the magistrate's conclusion of probable cause. Id.

Overbroad and Vague

        Mr. Lopez next argues that the warrant here was overbroad and vague because it only generally listed things police could seize. The warrant failed to provide an objective standard to police of the items to seize and those to avoid.

        A search warrant must describe with particularity the items to be seized. Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004); State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993); State v. Higgins, 136 Wn. App. 87, 91, 147 P.3d 649 (2006). This limits the discretion of the officer executing the warrant and it informs as to what may be seized. Riley, 121 Wn.2d at 29; Higgins, 136 Wn. App. at 91.

        Three criteria are relevant:

        "(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued." Higgins, 136 Wn. App. at 91-92 (internal quotation marks omitted) (quoting United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)).

        So a search warrant that allows the seizure of "'fruits, instrumentalities and/or evidence of a crime,'" followed by a list of objects that may fit the description was overbroad. Riley, 121 Wn.2d at 26; Higgins, 136 Wn. App. at 91. It was overbroad because the warrant failed to limit the seizure of items by spelling out the crime. Riley, 121 Wn.2d at 26, 28; Higgins, 136 Wn. App. at 91. A warrant is also overbroad when it describes many items but fails to link them to the offense. State v. Perrone, 119 Wn.2d 538, 555-56, 834 P.2d 611 (1992).

        Mr. Lopez asserts that the warrant here included no specific allegations as to the suspected crime. Only the generalized statement of manufacture/possession of marijuana and evidence of crimes of the Uniform Controlled Substances Act, chapter 69.50 RCW, were spelled out in the warrant: "evidence of the commission, an attempt to commit, or a conspiracy to commit an offense under the Uniform Controlled Substances Act, RCW 69.50." Clerk's Papers (CP) at 171. And this, he argues, is not enough.

        He relies on Riley.1 We read Riley differently. There, the crime under investigation was computer trespass. Riley, 121 Wn.2d at 25. The search warrant allowed the seizure of "'any fruits, instrumentalities and/or evidence of a crime, to-wit: notes, records, lists, ledgers, information stored on hard or floppy discs, personal computers, modems, monitors, speed dialers, touchtone telephones, electronic calculator, electronic notebooks or any electronic recording device.'" Id. at 26.

        The warrant in Riley listed a broad range of items. But it did not identify the crime under investigation. Id. In fact, it failed to identify any crime. Id. And more significantly for us, it was not possible to infer or identify the crime alleged from the list. Id. at 28-30. There was then no reasonable way to sort out the "inherently innocuous" items on the list from those appropriately subject to seizure. See id. at 28-31. The court then concluded that the warrant violated "the particularity requirement of the Fourth Amendment." Id. at 27.

        Here, the crime is set out in the warrant — manufacture/possession of marijuana. And the warrant further limits seizures to crimes related to the Uniform Controlled Substances Act, chapter 69.50 RCW. Again in Riley, the warrant failed to identify any crime. 121 Wn.2d at 26.

        The warrant here specifically sets out the items to be seized:

        1. controlled substances, in particular, but not limited to marijuana[;]
        2. marijuana growing equipment, including, but not limited to, halide lights, hoods, ballasts, timers, exhaust fans, filtering systems, fertilizer, potting soil and pots;
        3. controlled substance paraphernalia, including materials for packaging, cutting, weighing, and distributing controlled substances, including, but not limited to, scales, baggies, heat sealers, and spoons;
        . . . .
        6. papers, tickets, notes, schedules, receipts, and other items relating to the domestic travel, including, but not limited to, travel to, from, and between Washington, Idaho, Oregon, and California;
        . . . .
        8. books, records, receipts, bank statements and records . . . and other items evidencing the obtaining, secreting, transferring, and/or concealment of assets.

        CP at 170-71. The warrant here was not overbroad or vague. Misrepresentations and Omissions

        Mr. Lopez next argues that the affidavit to support the search warrant included misrepresentations and omissions. He complains that the faint odor of marijuana could have come from any number of homes in the neighborhood. And the affidavit was carefully worded. It implied that officers would have detected the odor from the residence had they stood at or inside the front door. He argues that this was a misrepresentation since the police made no showing that the odor came from Mr. Lopez's house.

        He also argues that the power records failed to establish a legitimate basis for the search of the house and were misleading in their purpose to show that drugs were being grown. The detective preparing the warrant denied the presence of a hot tub, air conditioner, or other large appliance that would account for the high power usage. He also failed to detail the length of time the property was evaluated or the distance from which the evaluation occurred.

        Mr. Lopez also suggests that the detective received the power records in a misleading manner. This occurred when he requested power records from Avista and "falsely indicated a number of addresses were suspected of criminal activity."

        Appellant's Br. at 9.

        An omission or false statement made in an affidavit in support of a search warrant may invalidate the warrant if it was (1) material and (2) made intentionally or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Cord, 103 Wn.2d 361, 366-67, 693 P.2d 81 (1985). The trial court conducts a hearing (a Franks hearing) if a defendant makes a substantial preliminary showing of material omissions or false statements. Franks, 438 U.S. at 155-56; Cord, 103 Wn.2d at 366-67. If the accused then establishes his allegations by a preponderance of the evidence at the hearing, the material misrepresentations will be stricken from the affidavit and the material omissions added. Franks, 438 U.S. at 155-56; Cord, 103 Wn.2d at 366-67. If the modified affidavit then fails to support a finding of probable cause, the warrant is invalid and the evidence obtained shall be excluded. Franks, 438 U.S. at 155-56; Cord, 103 Wn.2d at 367.

        Here, the court held a Franks hearing and concluded that the affidavit in support of this search warrant did not include material or intentional misrepresentations. In fact, the court found no false statements. We review the court's findings for substantial evidence, but only if they are challenged. Ross, 106 Wn. App. at 880. We accept unchallenged findings as true here on appeal. Id. We then pass on whether those findings support the court's legal conclusions. Id.

        Here, the court found that no material misrepresentations, intentional misrepresentations, or false statements were made to the magistrate at the time the warrant was issued. These support the court's conclusion that the presence of a hot tub or air conditioner was not a material omission nor made intentionally or with reckless disregard for the truth. Franks, 438 U.S. at 155-56; Cord, 103 Wn.2d at 366-67. And even if the affidavit had been modified to include those factors, probable cause still existed because it contained information from which an ordinary prudent person would conclude that a crime had been committed there. Perez, 92 Wn. App. at 4.

First Amendment

        Finally, Mr. Lopez argues that the warrant permitted the unlawful seizure of documents and records protected by the First Amendment. Specifically, he contends that the warrant lacked the necessary specificity to avoid the sweep of protected documents.

        The degree of particularity required by a search warrant is greater if it grants authority to seize materials arguably protected by the First Amendment:

        In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas which they contain. No less a standard could be faithful to First Amendment freedoms. Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965) (footnote and citations omitted); Perrone, 119 Wn.2d at 547-48.

        The warrant here authorized the police to seize "books, records, receipts, bank statements and records, money drafts, letters of credit, money orders" related to transporting, ordering, purchasing controlled substances and/or concealment of assets and money. CP at 171. These are materials used in the commission of making, selling, and profiting from illegal drug activity. The search and seizure delineates materials that would be protected from seizure by the First Amendment. Perrone, 119 Wn.2d at 547-48.

        These were not books seized for the ideas they contain. Id. (quoting Stanford, 379 U.S. at 485). These were written items seized for their use in furthering criminal activity — illicit drug trade. Id. Those materials are not protected by the First Amendment. Id. Ledgers of unlawful activity are not entitled to First Amendment protection. Id. at 548. Here, "papers relating to the transportation, ordering, purchasing, and distribution of controlled substances, in particular, but not limited to, marijuana" are not entitled to First Amendment protection. CP at 171.

Private Utility Records and Right to Privacy

        Finally, Mr. Lopez argues that the State violated his right to privacy by accessing his power records from Avista.

        "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art. I, § 7. Mr. Lopez argues that the State violated Washington Constitution article I, section 7 by obtaining his power records. We must first determine if the action intruded upon constitutes a person's "private affairs." State v. McKinney, 148 Wn.2d 20, 27, 60 P.3d 46 (2002) (citing In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984)).

        "Generally, private affairs are `those privacy interests which citizens of [Washington] have held, and should be entitled to hold, safe from governmental trespass.'" McKinney, 148 Wn.2d at 27 (quoting Myrick, 102 Wn.2d at 511). Our inquiry is not into a person's subjective expectation of privacy. We ask instead whether the expectation of privacy is one a Washington citizen should be entitled to have. McKinney, 148 Wn.2d at 27; City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994).

        There is no protected privacy interest in power records here in Washington. McKinney, 148 Wn.2d at 30. This is because the information in these records does not reveal discrete and intimate information. Id. Moreover, a private utility company, here Avista, had the authority to voluntarily provide power records to the authorities without violating privacy interests. Id. at 29-30. Avista is not a public utility. And there is a distinction.

        Nor did Avista become a state agent, as Mr. Lopez contends. State v. Swenson, 104 Wn. App. 744, 755, 9 P.3d 933 (2000). A private entity only becomes a state agent if the State in some way "'instigated, encouraged, counseled, directed, or controlled the conduct of the private person.'" Swenson, 104 Wn. App. at 755 (internal quotation marks omitted) (quoting State v. Smith, 110 Wn.2d 658, 666, 756 P.2d 722 (1988)). Even a private citizen acting on his own initiative to help the government does not convert himself into a government agent. State v. Walter, 66 Wn. App. 862, 866, 833 P.2d 440 (1992); State v. Dold, 44 Wn. App. 519, 521, 722 P.2d 1353 (1986). Requesting and receiving information does not create an agency relationship. Walter, 66 Wn. App. at 866; Swenson, 104 Wn. App. at 755.

        We affirm the conviction for possession with intent to deliver.

        A majority of the panel has determined that 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.
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Notes:
1. Riley, 121 Wn.2d at 28.
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