Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:08 CR 136--Philip P. Simon, Chief Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
On August 1, 2008, a magistrate judge issued a search warrant for the home of Marlon K. Spears, which law enforcement officers executed five days later. Spears was arrested and charged with possessing 100 or more marijuana plants with intent to distribute, being a felon in possession of a firearm, and maintaining a place for the manufacture and distribution of marijuana. He filed multiple motions to suppress the evidence obtained from the search, chal- lenging numerous statements made in the affidavit ac- companying the warrant application, including: (1) state- ments about finding a marijuana stem during a "trash pull"; (2) the existence of PVC piping at Spears's home; (3) the affiant's statements that she "received information from" the Northern Indiana Public Service Company ("NIPSCO") about Spears's power usage; and (4) statements made about Spears's criminal history, namely, that he had one in the state of Indiana. The district court eventually conducted a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After hearing testimony, the district court found that the warrant did not contain any material false statements that were made intentionally, and denied the motion. The court also found that the warrant did not otherwise lack proba- ble cause.
Spears was convicted of all three counts following a jury trial. He now appeals, arguing that the district court erred in denying his Franks motion to suppress evidence. We find that the district court did not clearly err in finding no Franks violation with respect to the state- ments made about the marijuana stem discovered in the trash and the existence of piping at Spears's home. We decline to reach Spears's arguments regarding the inclusion of the electricity usage information and his criminal history because we find that even if those por- tions are stricken, the remaining elements of the af- fidavit support a finding of probable cause. We there- fore affirm Spears's conviction.
A. The Warrant Affidavit and Search of Spears's
Nicole Duncanson is a Hammond, Indiana police officer deputized as a federal agent. On August 1, 2008, she submitted an application and affidavit in support of a search warrant for the home of Marlon K. Spears to the United States District Court for the Northern District of Indiana. The affidavit stated that on July 23, 2008, a confidential informant, whom Duncanson had never met, called her and stated that Spears had a marijuana growing operation at his home. The informant stated that he or she had been in the basement of Spears's home and observed multiple rooms of marijuana plants, a water irrigation system, multiple high intensity growing lights, multiple electronic devices in and around the operation, fertilizer, growing mediums, and PVC piping routed from the basement to the exterior of the residence. The informant also told Duncanson that the PVC piping on the outside of the house was routed out from the basement and spray painted black. Duncanson ran a search on Marlon Spears, which revealed that he lived at the residence. Duncanson put in her sworn affidavit that she ran a criminal history check on Marlon Spears, "and found that he has a criminal history in the state of Indiana."
The affidavit also stated that on the morning of July 31, 2008, Duncanson met with two Indiana State Troopers (Jason Sample and Gerald Michalak) who had investiga- tion experience with marijuana grow operations. Among other information they provided, the troopers informed Duncanson that it was common in marijuana grow opera- tions to discard the stems of the marijuana plants. That same morning, Duncanson, the two troopers, and Detective Adam Clark of the Hammond Police Depart- ment obtained abandoned trash that had been placed in a public alley directly south outside Spears's home. The affidavit stated that "Trooper Sample located a fresh, green/brown, pliable plant stem in the trash. Trooper Michalak and Trooper Sample immediately recognized the stem to be from a marijuana plant . . . ." The stem was tested and returned a positive result for the presence of marijuana.
Also found in the trash, according to the affidavit, were an empty box for a "Tetra Whisper Aquarium Heater," (allegedly used to heat water to hasten mineral absorp- tion) and ten gray plastic circular discs. Trooper Sample advised that the discs were possibly cut from a larger tray used for "starter" or "clone" marijuana plants.
Finally, Duncanson also stated in the affidavit that: [o]n July 31, 2008, I received information from NIPSCO, the Northern Indiana Public Service Company, that the electricity service at The Pre- mises is listed in the name of Marlon Spears. NIPSCO also reported that the normal usage of electricity for a residence of this size is 500-650 kilowatts per month. However, NIPSCO further reported the actual, average monthly usage for the year of 2008 for The Premises was between 1200-1300 kilowatts.
Duncanson said that the excessive kilowatt usage was consistent with that of an indoor marijuana grow opera- tion due to the use of grow bulbs and other electrical equipment.
Based on the information contained in the warrant application, a magistrate judge issued a search warrant for Spears's home, and officers executed the warrant on August 6, 2008. During the search, law enforcement officers found 555 live marijuana plants rooted in soil, 550 grams of processed marijuana, plant pots, carbon air filters, high intensity grow bulbs, and irrigation system with plant trays, fertilizer, and books on marijuana growth. The officers also found a loaded .22-caliber rifle, 700 rounds of ammunition, and a digital scale. Spears was arrested and charged with possessing 100 or more ...