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ON REVIEW FROM COURT OF APPEALS

CASE NO. 2007-CA-002033-MR

UNION CIRCUIT COURT NO. 07-CR-00012

RENDERED : JANUARY 21, 2010

TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY APPELLANT

LESLIE PRIDE APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

REVERSING AND REMANDING

Appellant, Commonwealth of Kentucky, appeals from a Court of Appeals

decision reversing a July 5, 2007 order of the Union Circuit Court which

denied Appellee Leslie Pride's motion to suppress evidence obtained during a

search pursuant to a warrant. The Court of Appeals held that the motion to

suppress should have been granted because it found there was no probable

cause to support the warrant. We granted discretionary review to look at

whether the Court of Appeals used the correct standard to review the existence

of probable cause, whether the facts stated in the affidavit provided to the

warrant-issuing judge established probable cause, and whether if the warrant

was not supported by probable cause, the trial court properly denied the

motion to suppress because the police acted in good faith . We also address
Appellee's argument that the affidavit supporting the warrant set forth factual

conclusions based upon flawed electrical usage statistics . We reverse the

Court of Appeals because it applied an incorrect standard of review for

searches conducted pursuant to a warrant.

On November 9, 2006, the Kentucky State Police sought a search

warrant for Appellee's residence . The search warrant affidavit, given by

Detective Sean McKinney, stated the following in support of the warrant:

On the 6th day of September, 2006, at approximately 11 :00 a.m.,

affiant received information from : A Confidential Source of illegal

narcotic activities in the Commonwealth of Kentucky. The

Confidential Source stated that he knew a man by the name of

Leslie Pride and that Pride was selling marijuana . The Source

stated that Pride lived in Union County and told him that he had

240 female marijuana plants and priced the marijuana at $600.00

per quarter pound. The Source stated that he knew Pride from

previous employment and that the information received was told to

him by Pride last summer (2005) . The Affiant states that the

Confidential Source has provided information on at least 3

marijuana investigations and that that information has resulted in

ongoing criminal investigations and controlled purchases (not

related to Pride) . The Confidential Source has proven to be a

reliable source of narcotics related information to the Kentucky

State Police.

Acting on the information received, affiant conducted the following

independent investigation: Affiant states he and Det. Matt Conley

through vehicle and driver's license checks confirmed that Leslie

Pride lived in Union County, KY and resided at 681 SR 365 in the

Sturgis area. Affiant states that on November 7, 2006 Det. Conley

and Det. Louis Weber drove back to the residence and obtained

information from it and two comparison homes in the area for a

utility records subpoena. Affiant states that he went to the Union

County PVA Office and obtained property cards and information on

three residences for comparison. Affiant states that he chose the

two comparison homes based on geographic location, same utility

company service, and being similar structures in both construction

and size . Affiant states that he served a subpoena on Kentucky
Utilities on November 7, 2006 for the utility records on all three

residences. Affiant states that on November 8, 2006 he received

faxed copies of those records from Kentucky Utilities . Affiant

states that he provided those records to Det. Weber for review and

graphing. Det. Weber is assigned to the Kentucky State Police

Drug Enforcement/ Special Investigations Section and has

investigated several dozen indoor marijuana grow operations and

has created a graphing system for the utility records . Affiant

states that Det. Weber prepared the graphs for 2005 and 2006,

and prepared a structural comparison on all three residences.

Det. Weber concluded that based on the extremely high electric

usage and indicative spiking of electric at 681 ST RT 365, it was

his opinion that the records were consistent with an indoor

marijuana grow. Det. Weber consulted with retired KSP Det. Mark

Moore on November 9, 2006 regarding this investigation . Det.

Moore, who is now assigned as a KSP Drug Task Force Officer, was

assigned to the KSP Marijuana Operations Section from 1995 until

his retirement in 2003 . Det. Moore was provided copies of the

graphs and structural comparison worksheet . Det. Moore also

concluded that based on his experience and training, that the

extremely high electrical usage was indicative of and consistent

with an indoor marijuana grow . . . .

Affiant further states that he has checked Leslie Pride's criminal

history and determined that he was charged and convicted in

Union County in 1995 for Trafficking in a Controlled Substance 1St

Degree and sentence to 10 years . Affiant further states that Pride

was charged and convicted in Union County in 1995 for 2-counts

of Trafficking Controlled Substance 1St degree and possession of a

handgun by a convicted felon. Pride was sentenced to another 10

years to run concurrent with the previous indictment . . . .

Based on the above affidavit, a search warrant was issued and Appellee's

residence was searched . Among the items seized during the search were fiftyfour one-gallon plastic storage bags of marijuana, an Army duffle bag

containing marijuana, twenty-six pounds, ten ounces of loose, unpackaged

marijuana, and various items used to cultivate and process marijuana. Based

on the evidence obtained, the Union County Grand Jury indicted Appellee for
trafficking in marijuana (over five pounds), second or greater offense,

use/possession of drug paraphernalia, first offense, and being a second-degree

persistent felony offender.

Appellee filedka motion to suppress the evidence- obtained during the

search . A suppression hearing was held on April 9, 2007. Appellee argued

that the affidavit failed to present probable cause to issue a search warrant

because: 1) the affidavit did not indicate there was marijuana located at

Appellee's house; 2) the information provided by the confidential informant was

stale because it referred to alleged crimes which occurred over one year prior;

3) the affidavit did not reflect that the confidential informant's reliability had

been established by the time the warrant was requested; 4) his prior criminal

history did not establish that there was current illegal activity ; and 5) the

electricity usage comparison used by the police was unreasonable and

conducted without any objective standards.

In support of his argument against the electricity usage comparison,

Appellee presented testimony from a Kentucky Utilities energy analyst who

testified that electricity usage at Appellee's house was within normal limits.

The energy expert made this determination by interviewing Appellee's wife

regarding the family's energy usage. Appellee also presented testimony from

Kentucky State Police Detective Moore, who testified that had he known about

the number of appliances at Appellee's house, he would have changed his

initial belief that the house was the site of a marijuana growing operation .
Appellee further argued that the electricity comparison was flawed because the

two comparison houses had markedly different inhabitants than Appellee's

house. Five family members of varying ages lived at Appellee's house, while

one of the- comparison houses had twoelderly-residents and the other was

vacant for several months during the period of review. Based on this, Appellee

argued that not only was there no objective standard of review used by police

in reviewing the electricity usage, but that the final report was misleading.

Using the standard provided in Illinois v. Gates, 462 U.S . 213 (1983), the

circuit judge denied Appellee's motion in a fifteen-page order. The circuit judge

found that each element contained in the affidavit was individually inadequate

to issue the warrant, but that collectively, the "totality of the circumstances"

provided the warrant-issuing judge a "substantial basis for . . . conclud[ing]"

that probable cause existed . The circuit judge concluded that the informant's

credibility was adequately established in the month prior to the issuance of the

search warrant by other tips he provided and by the police officer's knowledge

of Appellee's criminal background . Finally, the circuit judge concluded that the

methods the police used for the electricity comparison, despite the

imperfections revealed by the hindsight of subsequent analysis, were

reasonable and objective, were not misleading, and appeared to be indicative of

a marijuana growing operation.

After the suppression hearing, Appellee entered a conditional guilty plea

to one count of trafficking in marijuana over five pounds, first offense, and one
count of use/possession of drug paraphernalia, first offense pursuant to a plea

agreement with the Commonwealth, reserving the right to appeal the denial of

his suppression motion . Appellee received a sentence of six-years'

imprisonment: . . .

The Court of Appeals reversed the circuit judge's order denying Appellee's

suppression motion using a two-step test to review the suppression hearing: 1)

whether the circuit court's findings of fact are supported by substantial

evidence; and 2) a de novo review of those factual findings to determine

whether probable cause existed as a matter of law. The standard of review

used by the Court of Appeals was provided by Ornelas v. United States, 517

U.S. 690 (1996) ; Commonwealth v. Banks, 68 S.W .3d 347, 349 (Ky . 2001) ;

Garcia v. Commonwealth, 185 S .W.3d 658, 661 (Ky. App. 2006) ; and Stewart v.

Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) - cases all dealing with

warrantless searches. Using that standard, the Court of Appeals found that

probable cause did not exist to issue the warrant because the information

provided by the confidential informant was stale and the electricity comparison

was flawed. The Court of Appeals believed that the two houses used in the

electricity usage comparison were too dissimilar to Appellee's house to fairly

conclude that Appellee's electricity usage was indicative of illegal conduct

within the house. Finding that the Court of Appeals used the wrong standard

to review the existence of probable cause, we reverse .
I . THE STANDARD FOR REVIEWING THE ISSUANCE OF A SEARCH WARRANT

IS PROVIDED BY ILLINOIS v. GATES AND WAS ADOPTED BY THIS COURT IN

BEEMER v. COMMONWEALTH, 665 S.W.2d 912 (KY. 1984) .

Appellant's main argument is that the two-step test used by the Court of

Appeals is the incorrect standard to review the trial court's denial of the motion

to suppress.. Appellant argues that the correct standard to review suppression

motions for searches conducted pursuant to a warrant was used by the circuit

court; i .e ., the "totality of the circumstances" test provided in Gates, 462 U.S.

213. We adopted the Gates "totality of the circumstances" test in Beemer v.

Commonwealth. Notably the Court of Appeals opinion did not cite to Gates or

Beemer, but did make vague references to the "totality of the circumstances"

test . However, the main test the Court of Appeals cited to is generally used to

review warrantless searches and Terry stops . Ornelas, 517 U.S . at 690; Banks,

68 S.W.3d at 349; Garcia, 185 S.W.3d at 661 ; and Stewart, 44 S.W.3d at 380.

Because this case involves a search conducted pursuant to a warrant, we agree

that the Court of Appeals applied an incorrect standard .

In Gates, the United States Supreme Court held that the proper standard

to review a decision to issue a search warrant is to look at the "totality of the

circumstances" surrounding the warrant request.

The task of the [warrant] 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 . And the duty of a
reviewing court is simply to ensure that the magistrate had a

"substantial basis for . . . conclud[ing]" that probable cause

existed.

Id . at 238-239 ; see also Beemer, 665 S.W .2d at 914. Gates, holding that a de

novo review of the facts contained in the affidavit supporting awsearch warrant

is inappropriate and tends to lead to overly technical analysis, stated "afterthe-fact scrutiny by courts of the sufficiency of an affidavit should not take the

form of de novo review" . Id . at 236; see also Massachusetts v. Upton, 466 U.S .

727, 728 (1984) ("Last term, in Illinois v. Gates, we held that the Fourth

Amendment's requirement of probable cause for the issuance of a search

warrant is to be applied, not according to a fixed and rigid formula, but rather

in light of the `totality of the circumstances' made known to the magistrate . We

also emphasized that the task of the reviewing court is not to conduct a de

novo determination of probable cause.") (citation omitted) . "A magistrate's

`determination of probable cause should be paid great deference by reviewing

courts. ' Gates, 462 U. S. at 236 (citing Spinelli v. United States , 393 U. S. 410,

419 (1969)) ; see also Beemer, 665 S.W.2d at 914. The great deference to the

decision making ability of the warrant-issuing judge stems from the preference

we have for searches conducted pursuant to a warrant rather than warrantless

searches. Gates, 462 U.S. at 236.

Our preference for searches pursuant to a warrant is part of the rationale

for the requirement that warrantless searches are reviewed de novo. Ornelas,

517 U.S. at 698-699 . - It is reasoned that the stricter de novo standard for
warrantless searches will encourage police officers to seek out a warrant prior

to executing a search, because the searches pursuant to a warrant are

reviewed under the less strict standard provided by Gates. Ornelas., 517 U.S .

at 698-699 (stating that to- implement a Gates "totality of the circumstances"

standard for warrantless searches would "eliminate the incentive" for police to

seek warrants) . Thus the Court of Appeals' decision in this matter applied the

standard for warrantless searches, which are reviewed pursuant to Qrnelas,,

rather than the "totality of the circumstances" test created by Gates and

adopted by this Court in Beemer.

Thus, the trial court judge faced with a motion to suppress evidence

obtained pursuant to a search warrant should apply the Gates standard, and

determine whether under the "totality of the circumstances" presented within

the four corners of the affidavit, a warrant-issuing judge had a substantial

basis for concluding that probable cause existed. When addressing a motion to

suppress evidence resulting from a warrantless search, the trial judge should

apply the stricter de novo test from Ornelas.

The proper test for appellate review of a suppression hearing ruling

regarding a search pursuant to a warrant is to determine first if the facts found
by the trial judge are supported by substantial evidence', RCr 9.78, and then

to determine whether the trial judge correctly determined that the issuing

judge did or did not have a "substantial basis for . . . conclud[ing]" that

p,robable case existed. Gates; 462 at 236; see also Beemer, 665 S.W-2d

at 915 (applying the "substantial basis" test to the decision. of the warrantissuing judge to determine if there was probable cause) . In doing so, all

reviewing courts must give great deference to the warrant-issuing judge's

decision . 2 Gates, 462 U.S. at 236. We also review the four corners of the

affidavit and not extrinsic evidence in analyzing the warrant-issuing judge's

conclusion . Commonwealth v. Hubble, 730 S.W .2d 532 (Ky. App. 1987) . The

proper test on appeal to review a ruling on a warrantless search is the one the

Court of Appeals used in this matter. First, review the factual findings of the

circuit judge to see if they are supported by substantial evidence, RCr 9.78,

and then review the ruling on the motion to suppress de novo to see whether

the decision was correct as a matter of law. Ornelas, 517 U.S. at 698-699 .

1 Ordinarily, when a search warrant has been obtained, there is no reason for an

evidentiary hearing to determine whether the facts alleged in the affidavit are actually

true . However, when it is alleged that police officers procuring the warrant-included

intentionally or recklessly false statements or purposefully or recklessly omitted

material facts, an evidentiary hearing is necessary to determine whether the

allegations are true and, if so, whether probable cause exists without the corrupted

facts or with the inclusion of the improperly omitted facts . See Guth v.

Commonwealth , 29 S.W .3d 809, 810 (Ky. App. 2000) .

2 Appellant further argues that Commonwealth v . Smith, 898 S.W.2d 496 (Ky. App.

1995), improperly adopts a de novo standard of review for all searches conducted with

a warrant . However, we do not read Smith in that manner because it addresses the

level of specificity necessary in a warrant required to allow a search of a multi-unit

apartment building. Id. at 501 . Thus, this case does not deal with the situation found

in Smith.
II . THE AFFIDAVIT REFLECTED FACTS WHICH SUPPORTED A FINDING THAT

PROBABLE CAUSE EXISTED

Having identified the proper standards with which to review motions to

suppress evidence, we now review the circuit- court judge's denial of Appellee's ~ °

motion to suppress evidence obtained pursuant to a. search warrant. First, we

find that the circuit court judge's overall factual findings were supported by

substantial evidence. RCr 9.78 . The circuit judge issued an extensive fifteenpage order detailing Appellant and Appellee's arguments. His factual

conclusions are supported by the evidence .

Second, using the standard outlined in Gates, we find that the trial court

properly concluded that the warrant-issuing judge had a "substantial basis" to

issue the warrant due to the facts alleged in the affidavit. "Under the totality of

the circumstances" the information presented3 in the affidavit established

probable cause to support the issuance of the warrant.

While Appellee argues that the tip from the confidential informant was

stale since it referred to activities a year and a half earlier and thus is

unreliable, it is important to note that the police began to investigate Appellee

soon after receiving the tip . It is important to note that the police only began to

investigate after determining that the confidential informant was reliable, a fact

3 This information includes the tip from the confidential informant that Appellee was

trying to sell large amounts of marijuana, Appellee's prior history of drug trafficking,

the detective's training and experience with how indoor marijuana growing operations

work, and the indication that Appellee was using a large amount of electricity

consistent with indoor marijuana cultivation .
critical to the determination of probable cause which was alluded to in the

affidavit.

Further, while Appellee argues that the electricity comparison analysis

used by -police -was on its face inadequate, we disagree. The affidavit clearly

discusses the methods the police used to compare Appellee's electricity usage

to similarly sized near-by houses.

Suspicious electricity usage coupled with other information can be a

sufficient basis for finding probable cause. See U.S . v. Kattaria, 503 F.3d 703,

707 (8th Cir. 2007) ("Corroboration from facts such as increased electrical

usage may compensate for lack of information about an informant's reliability

or the basis of his knowledge .") ; U.S . v. Clay , 521 F. Supp . 2d 633, 639 (W.D .

Mich. 2007) ("Federal courts have noted the relevance and weight of electricityusage evidence in determining probable cause or the reasonableness of a

search") ; Colorado v. Quintana, 785 P.2d 934, 939 (Colo. 1990) (holding that

dramatic increase in defendant's electricity usage lent credit to informant's

statement that defendant was engaged in growing marijuana) ; Idaho v.

Ledbetter, 794 P.2d 278, 281 (Id. 1990) (holding that electricity usage data

indicating that defendant was using larger amounts of electricity than were

other comparable homes in the area may be used to establish probable cause

to search for drugs) . The most common method to determine if a suspect's

electricity usage is indicative of illegal activity is to compare the electricity bills

from the suspect's home with the electricity usage for comparable houses . See
Id. (comparison of defendant's electricity usage with homes in area) ; Landon v.

Alaska, 941 P.2d 186, 189 (Ak. 1997) (using average electricity usage from

suspect's house, comparing that usage to previous owners of the house, and

then comparing it-to, average usage at other comparable-houses to support

probable cause determination) ; Montana v. Hook, 839 P.2d 1274, 1275-1277

(Mont. 1992) (holding that comparison of suspect's electricity usage to average

residential uses of houses with the same type of heating energy source was

reasonable and supported probable cause) ; Ohio v. Gantz, 665 N.E.2d 239,

241-242 (Ohio App. 1995) (indicating that police compared the suspect's

electricity use with the two neighboring houses to support probable cause) .

Here, after reviewing the methods in which other jurisdictions have dealt

with electricity usage comparisons, we cannot find that the electricity usage

comparison applied in this case was unreasonable . The record and affidavit

reflect that Detective Weber was trained on how to review electricity usage to

determine the likely presence of marijuana growing operations . Detective

Weber's decision to compare the electricity usage at Appellee's house with

houses of comparable size and proximity cannot be seen as unreasonable. See

Gan , 665 N.E .2d at 241-242 . We are also unwilling to hold that it is

necessary for the police to undertake the kind of comprehensive investigation

suggested by Appellee before electricity usage records may be used in an

affidavit to support probable cause. Forcing the police to interview the

occupants of comparison houses, determine their lifestyle, and then determine
in detail the appliances located in each house, could alert suspects to the

investigation, and allow them time to destroy evidence . We are aware of no

jurisdiction which requires the police to undertake such an in depth

investigation before submitting electricity usage Aata - in support of- probable

cause.

Further, while Appellee complains that one of the comparison houses sat

vacant for a period of time and that this skewed the electricity comparison, we

disagree. The comparison house only sat vacant for a few months during a

two-year sample period . The charts created by Detective Weber and shown at

the suppression hearing reflected the near zero electricity usage at the vacant

house for that period . We cannot find that Detective Weber deceived the court.

Finally and notably, the affidavit indicates two ways in which Appellee's

electricity usage indicated a potential indoor marijuana growing operation . Not

only was Appellee's electricity usage higher than the comparables, but there

were electricity usage spikes, which were indicative of a marijuana growing

operation in Detective Weber's experience. Therefore, even if we were to find

that the comparison was flawed, the electricity usage spikes from Appellee's

house alone were indicative of a marijuana growing operation. Thus, in this

matter, we cannot find that the electricity usage comparison was unreasonable .

The data generated regarding the electricity usage was properly submitted in

the affidavit to support a finding of probable cause.

Based on these facts, we believe there was a sufficient probability of
criminal activity occurring at Appellee's house to support probable cause and

the issuing of the warrant. See Spinelli , 393 U.S . 410, 419 (1960) (holding that

prima-facie evidence of criminal activity is not required to find probable cause,

but the probability that- crimih°al activity is afoot) . Thus, we- find the circuit

court's denial of Appellee's motion to suppress was proper.

III . CONCLUSION

Since the .search was supported by probable cause, we need not address

whether the good faith exception would have justified the denial of Appellee's

motion to suppress on alternative grounds .

Thus, for the foregoing reasons, we reverse the decision of the Court of

Appeals and remand this matter to the Union Circuit Court for proceedings

consistent with this opinion .

All sitting. All concur.
COUNSEL FOR APPELLANT:

Jack Conway

Attorney General

David Wayne Barr

r Assistant Attorney General

Office of Attorney General

Office of Criminal Appeals

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

COUNSEL FOR APPELLEE:

W. Mitchell Deep

Herbert Randall Redding

King, Deep and Branaman

P O Box 43

Henderson, Kentucky 42419