IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Appellant,

v. ALEX ROBERT BUCKINGHAM, Respondent. No. 69853-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 21. 2014 "P\:^ 7*" -o

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Spearman, C.J.

— The State appeals from the trial court's order granting 

### Alex Buckingham's motion to suppress evidence and dismiss the charge against him for manufacture ofa controlled substance. The issue before us is whether 

### the 2011 amendments to the Medical Use ofCannabis Act (MUCA), chapter 

### 69.51A RCW, require a search warrantto be based on probable cause of a 

### violation ofthe Act specifically, ratherthan merely probable cause of a violation 

### of our state's marijuana laws.1 Having recently decided this issue inStatev. Reis, No. 69911-3-1, 2014 WL 1284863 (Mar. 31, 2014), we reverse and remand.

1Initiative 502, passed in November2012, legalized possession of small amounts of marijuana forindividuals over 21 years of age. See RCW69.50.401(3). Initiative 502 has no bearing on this case.No. 69853-2-1/2 FACTS On November 22, 2011, law enforcement executed, pursuant to a search warrant, a search at a residence in Everett. The affidavit in support ofthe search warrant detailed a search at that residence that had occurred on March 12, 2009. CP 58-62. That search revealed a marijuana growing operation with 418 plants. 

### The affidavitexplained that as a result ofthat search, the ownerofthe residence, Daniel Dean, pleaded guilty to conspiracy to manufacture marijuana. Alex 

### Buckingham and Ashley Byrne, who were living inthe home and apparently tending the grow operation, both pleaded guilty to misdemeanormarijuana charges. The affidavitfurther stated that on October27, 2011, a police officer had 

### gone to the property to determine whether itwas still occupied. As he 

### approached the front door, he smelledfresh orgrowing marijuana. Parked in the drivewaywas a Kia registered to Byrne at Dean's residential address in Edmonds. The next day, twootherofficers returned to the property. One officer smelled fresh or growing marijuana. On November 18, an officerobserved a 

### Toyota 4Runner under the carport of the residence. The 4Runner was registered to Buckingham. On November22, both the 4Runner and the Kia were parked at the property. 

### The affidavit also included information from public utilitydistrict records 

### regarding theproperty, which listed Dean as the subscriber and showed that the bi-monthly power usage averaged 10,903kilowatts. This was a high amount that indicated the presence of an indoormarijuana growing operation.No. 69853-2-1/3 Based on this information, the district court issued the search warrant. The 

### search revealed a grow operation with four grow rooms holding a total of275 

### marijuana plants, 70 grams ofprocessed marijuana, and over2,000 grams of shake.Buckingham was charged with manufacture of a controlled substance. He moved to suppress the evidence found inthe search, arguing that the 2011 

### amendments to the Act required probable cause that a grow operation is illegal under MUCA. CP 17. The trial court concluded: [Wjithin the four corners of the warrant, probable cause has not been established and therefore all the evidence in this case is suppressed. Under the medical marijuana law of 

### 2011, an affirmative defense does not come into play until after probable cause is established, this is not the situation in this case. In this case there was nothing in the warrant in which the affiant addressed the issue of whether the 

### provisions of the medical marijuana law were being broken and therefore there was no probable cause that a crime was being committed inthe 4 corners ofthe warrant. Clerk's Papers (CP) at 3-4. 

### Accordingly, the trial courtgranted Buckingham's motion, suppressed the evidence, and dismissed the case. The State appeals. DISCUSSION "We review conclusions of law from an orderpertaining to the suppression ofevidence de novo." State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 

### (2009) (citing State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002)). "Asearch warrant must be based upon probable cause." State v. Merkt, 

### 124 Wn. App. 607, 612, 102 P.3d 828 (2004) (citingState v. Cole, 128 Wn.2dNo. 69853-2-1/4 

### 262, 286, 906 P.2d 925 (1995). "Probable cause exists ifthe affidavit insupport ofthe warrant sets forth facts and circumstances sufficient to establish a 

### reasonable inference thatthe defendant is probably involved in criminal activity and that evidence ofthe crime can be found at the place to be searched." State


### v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citing Cole. 128 Wn.2d at 286). The State argues thatthe broad protections in RCW 69.51A.040 against arrest, prosecution, criminal sanctions, and civil consequences are limited to designated patients and qualifying providers who are listed in a state registry. Because the governorvetoed those sections thatwould have created the registry, it is not possible to qualify for these protections. In State v. Fry, 168 

### Wn.2d 1, 5, 228 P.3d 1 (2010), a plurality ofthe Washington Supreme Court, analyzing a prior version of MUCA, held thatthe possible existence ofan affirmative defense underWashington's medical marijuana laws does not defeat 

### probable cause when a trained officer detects the odor ofmarijuana. And the currentversion of MUCAexpressly provides that an unregistered patient or 

### provider may raise an affirmative defense at trial. RCW 69.51A.043. Therefore, according to the State, defendants are left with an affirmative defense that can be raised attrial, and a showing ofprobable cause need not negate that defense. Buckingham argues thatthe use and cultivation ofmedical marijuana is 

### presumptively legal underthe plain language of RCW 69.51A.040 as amended inNo. 69853-2-1/5 

### 2011? Hecontends that Fry is no longer applicable as a result of the 2011 amendments to MUCA, because the amended statute now provides an exception to the general prohibition on possession ofcontrolled substances. Thus, law enforcement officials must demonstrate probable cause of a violation of MUCA to 

### obtain a search warrant, and showthatthe exception does not apply.3 We recently addressed these arguments in Reis, 2014 WL 1284863. In Reis, a detective sought a search warrantfor the defendant's residence based on observations indicating that marijuana was being grown indoors. The district 

### courtconcluded thatthere was probable cause to believe a violation ofthe Uniform Controlled Substances Act, chapter 69.50 RCW, had been committed, and itissued a search warrant. After officers seized evidence of a marijuana 

### grow operation, Reis was charged withmanufacture ofmarijuana in violation of the Uniform Controlled Substances Act. Reis moved to suppress the evidence, 

### arguing thatthe search warrantwas notsupported byprobable cause. The trial court denied his motion, and this courtgranted discretionary review.

2RCW 69.51 A.040 as amended provides that "[t]hemedical use ofcannabis in accordance with the terms and conditions of this chapterdoes not constitute a crime and a qualifying patient or designated providerin compliancewith the terms and conditionsof this chaptermay not be arrested, prosecuted, or subject to othercriminal sanctions orcivil consequences ..." ifcertain specified requirements are met. 3The State in Buckingham's case makes an additional argument not made in Reis's. It argues that because the search in his case took place in November 2011, the benefits of registration wereunavailabletohim in any event because hecould notpossibly havequalified for them. It points out that the department of health was to have been givenuntil January 1, 2013 to adopt rules governing the registry, ch. 181, § 901(1) (vetoed), and that no registry would have existed in November 2011. Thus, it contends, he was entitled only to a possible affirmative defense, which need not be negated to establish probable cause. Because we conclude RCW 69.51A.040 does not make medical marijuana use presumptively legal, the argument is unnecessary and we need not address it.No. 69853-2-1/6 

### Reis argued thatthe plain language ofRCW 69.51A.040 as amended in 

### 2011 made the use and cultivation ofmedical marijuana presumptively legal in certain circumstances. He asserted that Fry no longerapplies and that police must demonstrate probable cause of a violation of MUCA to obtain a search warrant. We disagreed with Reis and held that the trial court did not err in denying Reis's motion to suppress. First, we noted that the plain language of RCW 69.51A.040 as amended provides heightened protections against arrest, prosecution, criminal sanctions or civilconsequences only ifcertain specified requirements are met, including registration with the department ofhealth. Because the governorvetoed the section ofthe law establishing a registry, it is impossible to register. We rejected Reis's argumentthat the governor's veto eliminated the affirmative defense, as 

### "[s]uch an interpretation is at odds withthe plain language ofthe statute as 

### amended bythe legislation." Reis, 2014 WL 1284863 at 15. Accordingly, we held: RCW 69.51A.040 cannot currently be enforced to the extent an individual asserts medical marijuana use "inaccordance with the terms and conditions ofthis chapter." The protections against arrest, prosecution, criminal sanctions, and civilconsequences 

### would apply only to qualifying patients and designated providers 

### who are registered. Currently no one can register. Thus, qualifying patients and designated providers may assert an affirmative defense. Under Fry, the possible existence ofan affirmative 

### defense does not negate probable cause. The trial court did not err 

### in denying Reis's motion to suppress.4 Id. at 16-17.

4 Footnotes omitted.No. 69853-2-1/7 

### Applying this reasoning to Buckingham's case, we conclude thatthe trial courterred ingranting his motion to suppress. The search warrant affidavit established thatthe police officers suspected an indoor marijuana growing operation, inviolation ofthe Uniform Controlled Substances Act. The affidavit
was not required to show thatthe operation violated MUCA. We therefore


### reverse the suppression order. Becausethe orderofdismissal was predicated 

### solely on the suppression order, we reverse the dismissal as well and remand for further proceedings. We reverse and remand. 

# >flf^/y^vAJs, WE CONCUR:

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