WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

1 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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HONORABLE RONALD B. LEIGHTON 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

DOUGLAS WOOD and SANDRA 

KARLSVIK, husband and wife, 

 Plaintiffs, 

 v. 

KITSAP COUNTY; WEST SOUND 

NARCOTICS ENFORCEMENT TEAM; 

OFFICER MATTHEW DOUGIL (WestNet); 

GIG HARBOR POLICE DEPARTMENT 

DETECTIVE JOHN DOE SCHUSTER 

(WestNET) DETECTIVE JOHN HALSTED 

(POULSBO POLICE DEPT, WestNET, 

Badge #606); DETECTIVE G.R. MARS 

(WSP STATEWIDE INCIDENT 

RESPONSE TEAM, Badge #685); 

DETECTIVE JOHN DOE WILSON and 

JOHN DOES 1-25 

 Defendants. 

NO. C05-5575RBL 

WASHINGTON STATE 

PATROL DEFENDANTS’ 

MEMORANDUM IN 

SUPPORT OF THEIR 

MOTION FOR SUMMARY 

JUDGMENT 

NOTE FOR HEARING: 

DECEMBER 8, 2006 

ORAL ARGUMENT 

REQUESTED 

COMES NOW all Washington State defendants (WSP Defendants) including, but not 

limited to, Washington State Patrol Trooper George R. Mars and Detective Orest Wilson, and 

submit this Memorandum of Authorities in support of their pending Motion for Summary 

Judgment. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 1 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

2 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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I. 

STATEMENT OF THE CASE 

This is an action alleging an unlawful search of a residence on September 5, 2002, 

pursuant to a search warrant. Plaintiff alleges property damage, injury to their dog, inability 

to obtain homeowner’s liability insurance, and severe emotional distress. 

II. 

STATEMENT OF FACTS 

 WSP Defendants concur with the following statement of facts contained in the 

Memorandum of Authorities submitted in support of the presently pending Motion for Summary 

Judgment of Defendants Schuster, Dougil, and Halsted: 

 The plaintiffs, Douglas Wood and his wife, Sandra Karlsvik, are residents of Fox Island, 

Pierce County, Washington. Their address on Fox Island is 1225 11th Ave E. 

The West Sound Narcotics Enforcement Team (“WestNET”) is a multi-jurisdictional drug 

task force designed to centralize supervision and enhance the efforts of law enforcement agencies 

to combat controlled substance trafficking. The task force was created by agreement of the 

counties of Kitsap and Mason, the cities of Bainbridge Island, Bremerton, Port Orchard, Poulsbo, 

Shelton, the Washington State Patrol, and the Naval Criminal Investigation Services. Personnel 

from the task force are drawn from police personnel of the various participating agencies. The 

defendants were all participating in a WestNET task force at the time of plaintiff Douglas Wood’s 

arrest.1

 Based upon tips, research into property ownership, a flyover on August 27, 2002, at 1517 

hours where marijuana growing upon the subject premises was observed, and other evidence 

available to WestNET personnel, City of Poulsbo Police Department Detective Halsted obtained 

 1

 WestNET itself is not a legal entity, and is not subject to suit. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 2 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

3 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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a Kitsap County Superior Court search warrant for 1215 11th Avenue, Fox Island, Washington. 

 Apparently, due to a number of perceived hazards to law enforcement personnel who 

might be called upon to serve a warrant on the plaintiffs’ property, Detective Halsted contacted 

the Washington State Patrol SIRT Team and requested their assistance in serving the search 

warrant on plaintiff. Refer to Gig Harbor Defendants’ Declaration of Detective John Halsted. The 

SIRT Team accepted the mission, and Detective Halsted gave the information pertaining to the 

warrant to WSP Detective Mars. WSP Detective Mars made a safety plan for the warrant service, 

and conducted a briefing of involved personnel on September 5, 2002 at 5:00 a.m. at the Pierce 

County Fire Station No. 59. 

 According to the sworn investigative report prepared by WSP Detective G.R. Mars,2

 at 

approximately 0630 hours SIRT executed the warrant service at the residence. The residence sat 

down a long dirt driveway off of 11th Ave. A Pierce County Deputy, in a marked patrol car, 

followed the SIRT van down the driveway that led to the residence along with other perimeter 

personnel vehicles. SIRT members exited the vehicle and approached the residence on foot. As 

Detective Mars led the team toward the residence he noticed the occupant, later identified as 

Douglas E. Wood standing in a window on the main floor. Detective Wilson took up a position of 

over watch on WOOD as Detective Mars proceeded to the south end of the house where he 

observed a set of wooden stairs that led up to a small landing. As he approached the steps he 

noticed the wooden landing ended approximately 8 feet short of the doorway approximately 6 feet 

above the ground. 

When the SIRT team realized that they were not going to be able to access that door, part 

 

2

 Declaration of Jason Rosen, Exhibit A. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 3 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

4 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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of the entry team moved to the basement door, which was located at the northwest corner of the 

house. The door was not a standard size door. It was approximately 8 feet high and 

approximately 3 feet wide. It was mounted flush to the exterior of the house and opened inward 

from right to left. It was mounted on an approximate 1 foot wooden door jam. SIRT was unable 

to gain access into the door after numerous attempts with the “Ram.” Detective Mars attempted 

to gain access through a large glass window that was located next to the door. Again SIRT was 

unable to gain access due to a wood/metal covering over the window. As the main team was 

trying to gain access into the residence from the lower level, Detective Wilson was still 

communicating with Mr. Wood who was still standing in the window on the main floor. 

Detective Wilson was able to persuade Mr. Wood into lowering his “Draw Bridge” thus allowing 

access to his house. SIRT entered the residence and cleared it and found no other personnel. 

SIRT members met three large growling dogs coming up the basement stairs as they were 

descending them. SIRT deployed several pepper balls on the lead dog in order to deter its 

aggressive approach. The pepper balls are deployed from a long gun that fires the projectile. 

Each SIRT member is trained in the use of this devise. SIRT implemented the use of the pepper 

ball gun several years ago as a less than lethal devise to use in the deterrence of an aggressive 

animal. The dog was struck in the head area and immediately fled the house with the other dogs 

following. 

As SIRT and WESTNET personnel searched the residence they found that the house 

heavily fortified. The house appeared to have been designed and built with these fortifications in 

mind. Each window had a counter balanced weights that when released would allow a 

wooden/metal device to slid upward covering the entire window. There were motion detection 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 4 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

5 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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devices all around the house and on the driveway to warn of travelers up the driveway. The walls 

to the house were cement and each opening was fortified. SIRT members cleared the area 

without further incident. 

 After the residence was cleared and plaintiff was held in custody, Detective Halsted 

located marijuana plants near the house. It was later determined that there were 36 growing 

marijuana plants and nine that had been cut down and lying on the nearby grass. The plants were 

removed and marked as evidence. Detective Halsted read plaintiff his Miranda rights, which 

plaintiff acknowledged and agreed to speak to Detective Halsted without an attorney. Plaintiff 

informed Detective Halsted that he was allowed to grow marijuana and had medical authorization 

for it in his wallet. He indicated that his physician was Sandra Karlsvik, his wife. In his wallet, 

plaintiff had a yellow “post-it” note with the following words: “I am advising that Mr. Doug 

Wood consume oral cannabis t.i.d. for a neurological disorder with pain and anorexia,” signed by 

Sandra Karlsvik, M.D. Id. 

 Detective Halsted felt that the “post-it” note did not comply with the laws allowing for the 

use of medical marijuana. In addition, the quantity of marijuana plants discovered upon the 

premises appeared, to Det. Halsted, to be clearly in excess of what would be allowed for personal 

use under the Medical Marijuana Act.3 Ultimately, Douglas Wood was transported to the Pierce 

County Jail and booked for manufacturing a controlled substance – marijuana. 

 WSP Defendants also present the following facts to supplement the Statement of Facts 

presented in behalf of Defendants Schuster, Dougil, and Halsted in support of their Motion for 

Summary Judgment: 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 5 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

6 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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 The Pierce County Prosecutor’s office filed an Information and Probable Cause pleading 

accusing Mr. Wood of unlawful manufacturing a controlled substance and unlawful possession of 

a controlled substance with the additional qualification that Mr. Wood was armed with a firearm. 

Stier Declaration, Ex. A, Refer to Information and Declaration for Determination of Probable 

Cause, Docket 02-1-04179-7. Subsequently, the prosecutor filed a Motion and Order of 

Dismissal with Prejudice citing the fact that Mr. Wood provided some minimal medical marijuana 

documentation to the officers at the time of his arrest and later provided valid documentation that 

supported his medical marijuana defense to the prosecutor. Stier Declaration, Ex. B, Order of 

Dismissal with Prejudice, Docket 02-1-04179-7. 

III. 

ISSUES 

1. Should WSP Defendants be entitled to Qualified Immunity from all of Plaintiffs’ 

Claims? 

 2. Should Plaintiffs’ claim for violations of their Fourteenth Amendment rights be 

Dismissed, as WSP Defendants did not Violate Plaintiffs’ Constitutional Rights and there is no 

Evidence of any Conduct that “Shocks the Conscience” or is “Utterly Intolerable” in Civilized 

Society? 

 3. Can WSP Defendants be found Liable under the Fourth Amendment when the 

Search was Conducted pursuant to a Warrant Obtained by a Third Party? 

 4. Do law enforcement officers have a duty to determine whether medical marijuana is 

permissible pursuant to Ch. 69.51A RCW, prior to a search or arrest? 

 3

 Also see Stier Declaration, Exhibit D, consisting of the unrebutted opinion of Bremerton Detective Joe 

Alloway that the 36 plants seized in this search would supply nineteen (19) times the amount of marijuana 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 6 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

7 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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5. Is an individual claiming that a marijuana grow is permissible under the medical 

marijuana act, entitled to be free from arrest or prosecution? 

IV. 

ARGUMENT 

A. Summary Judgment Standards. 

CR 56 provides in relevant part as follows: 

(c) ... The judgment sought shall be rendered forthwith if the pleadings ... 

together with the affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to a judgment as a 

matter of law .... 

(e) ... When a motion for summary judgment is made and supported as 

provided in this rule, an adverse party may not rest upon the mere 

allegations or denials of his pleading, but his response, by affidavits or as 

otherwise provided in this rule, must set forth specific facts showing that 

there is a genuine issue for trial. If he does not so respond, summary 

judgment, if appropriate, shall be entered against him.· 

A defendant moving for summary judgment may prevail by showing that there is 

an absence of evidence to support an essential element of plaintiff's claim. Young v. Key 

Pharmaceuticals, Inc., 112 Wn.2d- 216, 225, 770 P.2d 182 (1989). Upon such a 

showing, the burden shifts to the plaintiff to produce evidence which, when viewed in a 

light most favorable to the plaintiff, is sufficient to establish the existence of each 

element essential to plaintiff's claim. Id. A nonmoving party must set forth specific 

facts; speculation, argumentative assertions, opinions and conclusory statements will 

not defeat a properly supported summary judgment motion. Suarez v. Newquist, 70 Wn. 

App. 827,832,855 P.2d 1200 (1993) citing Grimwood v. University of Puget Sound, 

Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988). 

 

necessary to meet Mr. Woods’ six (6) month dosage level of one (1) rounded tablespoon a day for his tea. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 7 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

8 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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B. WSP Defendants are Secondary to Primary WESTNET Players, and thus all 

Defenses of the Primary WESTNET Players should Operate to Insulate WSP 

Defendants from Liability. 

WESTNET is an interlocal drug task force designed to provide for and regulate the 

joint efforts of several law enforcement agencies, the type envisioned by the state legislature 

expressed by The Washington Mutual Aid Peace Officers Powers Act of 1985. Ch. 10.93 

RCW. Ch.10.93 RCW was intended to effectuate mutual aid among agencies, and in 

furtherance of that goal, specifically allocated liability to the primary commissioning agency 

and indemnified contributing agencies from the negligent acts of the others. RCW 10.93.40, 

Liability for Exercise of Authority. 

Here, the tips were obtained by police officers of the Cities of Gig Harbor and Poulsbo, 

the flyover was performed by local police officers in a DEA aircraft, local police officers 

performed the land drive-by of the premises, local police officers performed the research of 

property ownership details, the warrant was obtained by Det. Halsted of the Poulsbo Police 

Dept., questioning and the arrest of Mr. Wood was conducted by Det. Halsted, follow-up 

questioning of Dr. Karlsvik was performed by Det. Halsted, and the prosecution was conducted 

through Pierce County superior court by the Pierce county Prosecuting Attorney. The only 

involvement of WSP SIRT members was to provide assistance in securing the premises due to 

perceived hazards (“the reported use of gunfire on the property, surveillance and warning 

devices reported to be present upon the property, as well as a “bunker-like” reinforced 

residence” surrounded by an apparent moat with a drawbridge. 

Being a secondary player, WSP and its officers can only be held liable derivatively for 

the acts of other involved officers-i.e. defenses applicable to City of Gig Harbor Poulsbo Police 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 8 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

9 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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Department officers are equally applicable to WSP Defendants. As such, WSP Defendants 

adopt the following arguments of Gig Harbor Police Department Defendants presented in their 

opening Memorandum of Authorities in Support of Local Police Department Defendants’ 

Motion for Summary Judgment: 

1. WSP Defendants are entitled to Qualified Immunity. 

 Based on the information available and know to the police at the time the search warrant 

was executed, the tactics, strategy and force used were objectively reasonable. Therefore, WSP 

Defendants are entitled to qualified immunity on all of plaintiffs’ constitutional claims under the 

second prong of Saucier4

 test and those claims should be dismissed as a matter of law. See Local 

Officers’ Memorandum of Authorities in support of their Motion for Summary Judgment, 

§ V.B.

2. WSP Defendants Did Not Violate Plaintiffs’ Fourth or Fourteenth Amendment 

Rights. 

Plaintiffs’ claims should be dismissed in their entirety against all defendants, including 

WSP Defendants because the warrant to search plaintiffs’ property was obtained on probable 

cause, through valid means, and there is no evidence of excessive force, to wit: 

a. The Search and Arrest Were Based on Probable Cause. Defendants did not violate 

any of plaintiffs’ constitutional rights. The warrantless search of plaintiff’s property by helicopter 

has been deemed constitutional by clear federal law. The police established probable cause to 

support the warrant to search plaintiffs’ home. See Local Officers’ Memorandum of Authorities 

in support of their Motion for Summary Judgment, §V. C. 1. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 9 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

10 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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b. There Was No Excessive Force Used Against Plaintiff. Plaintiff’s claims of 

excessive force, if any, fail any analysis under the Fourth Amendment’s objective 

reasonableness standard. Graham v. Connor, 490 U.S. 386 (1989). Refer to Local Officers’ 

Memorandum of Authorities in support of their Motion for Summary Judgment, §V. C. 2.b: The 

Force Alleged Was Not Excessive as a Matter of Law; and, §V. C. 3: Plaintiffs’ Fourteenth 

Amendment Rights Have Not Been Violated. 

In addition, the only “force” used by the SIRT team was in their attempts to gain access 

to the house where no apparent entries existed and using nonlethal force (a pepperball) against 

an apparently growling dog. Certainly, these actions do not “shock the conscience” and appear 

to be reasonably related to a restrained search authorized by warrant in the rough and tumble 

world of drug interdiction. 

C. When one officer obtains a search warrant and another officer executes it, the 

arresting officers are generally entitled to rely upon assertions that there is a 

proper warrant. 

 

 Again, WSP officers were secondary players in this WESTNET operation providing 

SWAT support to the execution of the warrant. In this case, the warrant to search the Wood 

residence was investigated, produced, and obtained by non-WSP defendants, including 

Detective Halsted of the Poulsbo Police Department who obtained the warrant and also 

contacted the WSP for assistance because of the perceived hazards associated with this 

search.5

 WSP Lt. (then Sgt.) Drake states that: 

[He] personally reviewed the subject warrant prior to the safety briefing on 

September 5, 2002, and found it to be facially valid containing the judge’s 

 4 Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001). 5

 “the reported use of gunfire on the property, surveillance and warning devices reported to be present 

upon the property, as well as a “bunker-like” reinforced residence” surrounded by an apparent moat with a 

drawbridge. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 10 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

11 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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signature and the proper address for the subject property. To this date, [he is] 

not aware of any fact(s) cited by Det. Halsted in his Complaint for Search 

Warrant, with supporting affidavit, that could have been known to be 

inaccurate or misleading at the time of [his] review of the subject warrant. 

Declaration of WSP Lt. Randy Drake, ¶ 7. 

 It is well settled that law enforcement officers are entitled to rely upon one another that 

a proper warrant exists. In fact, officers executing a warrant are not required to actually see 

the warrant. Guerra v. Sutton, 783 F.2d 1371 (9th Cir.1986). In Marks v.Clarke, 102 F.3d 

1012 citing Guerra, the court held that officers executing a warrant have a duty to inquire as 

to the “nature, scope, and details of the warrant.” See Generally Baker v. McCollan, 443 U.S. 

137, 145-46, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979); Arnsberg. V. United States, 757 

F.2d 971, 981 (9th Cir. 1985). “The system requires reasonable cooperation and division of 

labor, and the INS may reasonably rely on the statement of a responsible law enforcement 

officer (here, the Chief of Police) to conclude that a proper warrant exists.” Guerra at 1375. 

Although the court in Guerra found that the INS agents could rely on a statement that a 

warrant existed, the court reversed because no such warrant even existed, therefore no inquiry 

could be made into the “nature, scope, and details” of the warrant. 

 In the case at bar, the validity of the warrant was never challenged within the 

prosecution, or otherwise; instead the case was dismissed, at the discretion of the prosecutor, 

due to an apparent belief that Mr. Wood had sufficiently corroborated his medical marijuana 

affirmative defense under the requirements of RCW 69.51A.101(5)(a) after the arrest and 

filing of criminal charges against Mr. Wood. In addition, there is no evidence or legal 

argument whatsoever that there Det. Halsted and, indeed, the approving judicial officer, 

lacked of probable cause to seek and authorize this warrant. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 11 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

12 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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 In other words, the warrant appeared to be facially valid, it was reviewed by WSP 

prior to execution and found to be facially valid, and, to this date, it was substantively valid 

and based upon probable cause. 

D. Law Enforcement Officers have no Duty to Determine whether Medical 

Marijuana is Permissible Pursuant to Ch. 69.51A RCW, prior to a Search or 

Arrest. 

Apparently, plaintiffs contend that Mr. wood’s successful assertion of a medical 

marijuana affirmative defense, after the fact, retroactively renders the warrant, and ensuing 

search invalid. Nothing could be further from the case. 

 Under Ch. 69.51A RCW, (hereinafter “the Act”), a qualifying patient must possess 

“no more marijuana than is necessary for the patient’s personal, medical use, not exceeding 

the amount necessary for a sixty-day supply.” RCW 69.51A.040(2)(b). The marijuana 

located on the plaintiff’s property was visible by aerial surveillance. The evidence inventory 

shows that 45 marijuana plants were seized, along with several jars and ziploc baggies 

containing processed marijuana. Stier Declaration, Ex. C. It is undisputed by Mr. Wood’s 

own testimony that his accumulation of marijuana was for a period in excess of sixty (60) 

days: 

Q How did you go through the cycle of growing plants or -- 

A Plant them in the spring, pick the leaves as I needed them until they 

died or were gone, and then I wouldn't have access to marijuana for most 

of the year. 

Q So you plant them on an annual basis? 

A Yes. 

Q And then would you have to dry the leaves? Was there a process you 

had to go through to prepare the marijuana -- 

A They -- 

Q -- for a tea? 

A -- don't have to be dried for tea. Put them in a cup, dry 

or wet. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 12 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

13 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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Q Did the plants have buds as well? 

A Only in the fall. 

Q Did you use both the leaf and the buds for -- 

A Interchangeably. 

Q Okay. You used both? 

A Yes. 

 Rosen Declaration, Exhibit B, Deposition transcript of Douglas Wood, p. 64, ln.20 

through p. 65, ln. 12. 

And when did Mr. Wood get his headaches and need marijuana for pain? 

Q What percentage of the time that you experience the pain is it at that 

high level, the highest level? 

A It's random. It has no normal expec- -- I can't -- I can't expect one thing 

or another from it. I can't expect the pain to go away or I can't expect it to 

get worse. It's unpredictable. 

Q I guess the question was: What percentage of the time is it at that 

debilitating level? 

A It depends on the time of year and the nature of -- 

sequencing of pain. It can be very bad every day. 

Q Debilitating -- 

A Yes -- 

Q -- every day? 

A -- every day. 

Q In the average month how many teaspoons of marijuana do you use? 

A If it's every day, it may last every day for 60 to 90 days at a severe 

level. In which case I would drink a cup a day every day if it lasted at a 

severe level every day for 60 to 90 days. 

Q And have there been instances in the past where it has 

lasted at a severe level for 60 to 90 days? 

A Oh, yes, every year. 

Q In the fall. 

A Yes. Mostly in the fall. Not always in the fall. 

So, Mr. Wood plants in the Spring for use in the Fall, and at other times during the year 

that his headaches appear. By his own admission, the marijuana is on his premises more than 

six (6) months. 

 In addition, the unrebutted opinion of Det. Alloway (Stier Declaration, Exhibit D) is 

that the marijuana found on the premises was nineteen (19) times more than a sixty (60) day 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 13 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

14 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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supply at Mr. Wood’s admitted daily dosage level, even if he used the marijuana every day 

which, by his own admission, he didn’t. 

 The arresting officers (non-WSP personnel, by the way) reasonably determined that 

the amount of marijuana that was observed on premises exceeded that which would be 

necessary for a sixty-day supply. Plaintiffs have no evidence that this conclusion was 

unreasonable.

In addition, the Act requires “valid documentation.” RCW 69.50A.010(5)(a) A “post-it” note 

signed by his wife, a physician, is not normally considered to be an acceptable medical 

record.6

 In State v. Butler, 126 Wash.App. 741, 109 P.3d 493, 497 (2005), the court stated that 

“in order to render his [defendant’s] marijuana possession legal under the Act, he needed to 

obtain and to possess this required documentation from his personal physician in advance of 

law enforcement’s questioning his medical use and possession. (Emphasis added) Other 

states with medical marijuana laws such as Arkansas, Hawaii, and Oregon, require state 

registration to monitor and identify patients who are eligible for home cultivation of 

marijuana. Washington has no such registration, so it was not possible for police officers to 

conduct an inquiry into the legitimacy of a suspect’s drug cultivation. Even if there were state 

registration, police officers have no duty to conduct such an investigation, especially 

considering the magnitude of the plaintiff’s marijuana operations. 

 In addition, since “The Act” offers medical marijuana as an affirmative defense to 

possession or cultivation charges, law enforcement are not even required to request or 

consider whether documentation is valid under the act, or if it in fact exists. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 14 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

15 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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In 1996, the voters of California approved an initiative which created the 

“Compassionate Use Act of 1996,” which was a similar medical marijuana law to that of 

Washington. In People v. Mower, 28 Cal.4th 457, 49 P.3d 1067, 122 Cal.Rptr.2d 326, the 

court recognized the California medical marijuana act as a defense at trial, but strongly 

rejected the defendant’s characterization as a “novel kind of ‘complete’ immunity from 

prosecution.” Mower at 11. The court stated “The immunity invoked by defendant would 

have shielded him not only from prosecution but even from arrest, and would have required 

reversal...because of the alleged failure by law enforcement officers to conduct an adequate 

investigation of his status as a qualified patient or primary caregiver before proceeding to 

arrest.” 

 Mr. Wood was not entitled to complete immunity from arrest or prosecution under 

Washington’s Medical Marijuana Act, he was only entitled to raise medical use as an 

affirmative defense at trial, or in pre-trial negotiations with the Kitsap County Prosecutor, 

which he did. 

V. 

CONCLUSION 

WSP Defendants are secondary to primary WESTNET players, and thus all defenses of 

the primary WESTNET players should operate to insulate WSP Defendants from liability 

including the defenses that defendant officers are entitled to Qualified Immunity and did not 

violate Plaintiffs’ Fourth or Fourteenth Amendment rights. 

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 It is relevant to note that the State Board of Medical Quality Assurance agrees by disciplining Dr. Karlsvik 

for her failure to maintain appropriate medical records in her “treatment” of her husband. Stier Declaration, 

Exhibis E & F. 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 15 of 17
WSP DEFENDANTS’ MEMORANDUM 

IN SUPPORT OF THEIR MOTION FOR 

SUMMARY JUDGMENT 

NO. C05-5575RBL 

16 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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In addition, WSP Defendants, as participants relying upon the search warrant, satisfied 

all standards of secondary review of the still valid search warrant. Finally, all involved law 

enforcement officers had no duty to determine whether medical marijuana in the possession of 

Mr. Wood was permissible pursuant to Ch. 69.51A RCW, prior to a search or arrest. 

As such, WSP Defendants respectfully request the Court to dismiss all claims against 

them, with prejudice, in this matter. 

 DATED this 16th day of November, 2006. 

 

ROB MCKENNA 

Attorney General 

 /s/ Jeffrey D. Stier 

JEFFREY D. STIER, WSBA No. 6911 

Assistant Attorney General 

Attorneys for WSP Defendants 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 16 of 17
WSP DEFENDANTS’ ANSWER AND 

AFFIRMATIVE DEFENSES AND 

DEMAND FOR JURY – 

NO. C05-5575RBL 

17 ATTORNEY GENERAL OF WASHINGTON 

Torts Division 

7141 Cleanwater Drive SW 

PO Box 40126 

Olympia, WA 98504-0126 

(360) 459-6600 

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PROOF OF SERVICE

 I hereby certify that on November 16, 2006, I caused to be electronically filed the 

foregoing document with the Clerk of the Court using the CM/ECF system which will sent 

notification of such filing to the following: 

 Mark Leemon leemon@leeroylaw.com

 Robert L. Christie bob@christielawgroup.com

 Jason M. Rosen Jason@christielawgroup.com

 I certify under penalty of perjury under the laws of the state of Washington that the 

foregoing is true and correct. 

 DATED this 16th day of November, 2006, at Lacey, WA. 

 

 /s/ Jeffrey D. Stier 

 JEFFREY D. STIER, WSBA No. 6911 

Case 3:05-cv-05575-RBL Document 51 Filed 11/16/06 Page 17 of 17