### FILED JULY 

### 31, 2014 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III
INTHE COURTOFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31052-3-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) MORGANHALEDAVIS, ) ) Appellant. ) LAWRENCE-BERREY, 

### J.

- During a helicopter flyover ofMorgan Davis's property, law enforcementobserved at least 20 marijuanaplants growingin an exposed greenhouse. 

### An Okanogandeputy sheriffobtained a warrantto searchtwo greenhouses,
a house, and a shed on theproperty. The search uncovered over 121 marijuanaplants in the greenhouses. Inthehome, the officers found processed marijuana and distribution paraphernalia. Mr. Davis was charged and convicted ofthe crime ofmanufacture of marijuana. Mr. Davis appeals, contendingthatthe trial court erred indenying his motion to suppress the evidence found on the property. He maintains the affidavit supportingthe search warrantwas insufficientbecause it failed to considerwhetherthe marijuana was legal under the 2011 amendments to theMedical Use ofMarijuanaAct (MUCA), chapterNo. 31052-3-II1 State v. Davis
69.51A RCW. He also maintains thatthe officers lackedprobable cause to search the house because officers failed to establish a nexus between the marijuana in the greenhouse and the residence. Finding no error, we affirm. FACTS On June 30, 2010, Detective Jan Lewis ofthe North Central Washington Narcotics TaskForce and Deputy Terry Shrable ofthe Okanogan County Sheriff's Office flew in a helicopter overproperty located on Reevas BasinRoad near Tonasket, Washington. The officers observed two greenhouses. One greenhouse was partiallyuncovered, revealing to the officers approximately 20 large growing marijuanaplants. The officers noted other buildings on the property, including a small stickbuilt house locatedjusteast ofthe greenhouses and a small stick built shed west ofthe greenhouses. Officers confirmed that the property's address was 44 Reevas BasinRoad and that it was ownedby Mr. Davis. DetectiveLewis flew overthe property again onJuly 6. The tops ofthe greenhouses were covered with plastic, but the detective saw dark green coloring through the plastic. Detective Lewis believed the green color to be growing marijuana plants. The next dayDetective Lewis obtained a warrant to search the two greenhouses, the house, and the shed on Reevas BasinRoad. The search warrantrequested permission to search for evidence ofmanufacturing marijuana, including books, records, receipts,
2No. 31052-3-III State 

### v. Davis ownership ofthe residence, and identifying information. In addition to a narrative of events by DetectiveLewis, the warrant included an aerial photograph ofthe property taken during the July 6 flyover. The affidavit stated, "Inthis photoyou can clearly seethe green houses to the left ofthe house. The larger ofthe two green houses was halfopened when the initial flight was done. This is the one that I could see growing marijuana plants in. Everything in the photo including the outbuildings is on the same parcel ofproperty. There are no other driveways orhouses except for the one in the photo thathave access to these marijuanaplants." Clerk's Papers (CP) at 85. Thephotograph showed the residence, greenhouses, garden area, and outbuildings all within a clearly defined living compound. The compound is well separated from other structures orhomes. The residence was approximately 50 to 70 feet from the greenhouses andthere were no other houses nearby. Also, only one access road approaches the property and ends there. On July 8, officers executed the search warrant. Upon arrival at the property, officers made contact with Adriane Constantine outside ofthe residence. She told officers that Ms. Hale, Mr. Davis's mother, was in the house. Officers entered the residence to contactMs. Hale and askedherto wait outside. Mr. Davis arrived during the execution ofthe warrant.
3No. 31052-3-111 State v. Davis
Officers located approximately 121 growing marijuana plants. The plants were primarily found in the greenhouses, with the exception ofa few plants found growing outside. Inside the residence, the officers found various quantities ofprocessed marijuana, packaged marijuana, marijuana seeds, paperwork, receipts, cash, an electronic scale, and packaging material. In the small shed, officers found several dried marijuana plants.Mr. Davis was charged with one count ofmanufacture ofmarijuana under RCW 69.50.401. Mr. Davis moved to suppress the evidence found in the house and the shed. He argued that the officers lackedprobable cause to search the house and shed because there was no nexus between the greenhouses and the house and shed. The trial court denied the motion. The court concluded that a clear legal nexus existed between the house, greenhouses, outbuildings, and immediate surrounding areas. In support ofthis conclusion, the court found that the photograph and the testimony showed that the land, house, greenhouses, garden area, and outbuildings were all within a clearly defined living compound. Additionally, the residence was approximately 50 to 70 feet from the greenhouses and there were no other houses nearby. The buildings were well separated from other structures or homes; the nearest other structure to the property

4No. 31052-3-111 State 

### v. Davis

was over 700 yards away. Also, only one access road approached the property and ended
on the property. Ajury found Mr. Davis guilty ofmanufacture ofmarijuana. Mr. Davis appeals. He challenges the denial ofhis motion to suppress the evidence. He contends thatthe observation of20 plants was insufficientto establish probable cause ofa crime because the 2011 amendment to the MUCA allows for legal possession ofa certain quantity of marijuana, and there was no information thathe failed to comply with the act. He also contends that officers lacked probable cause to search the house and shed because there
was no nexus between these buildings and the suspected criminal activity observed in the greenhouses. ANALYSIS Probable Cause andMUCA. Review ofa probable cause determination has a historical fact component and a legal component. State v. Emery, 161 Wn. App. 172, 201,253 P.3d 413 (2011), ajJ'd, 174 Wn.2d 741,278 P.3d 653 (2012). Onmatters of historical fact finding, we apply an abuse ofdiscretion standard when reviewing a magistrate's decision on whether informationprovided in the warrant is reliable and credible. 

### Id. at 202. Then, for the legal component, we apply de novo review to determine whether the qualifYing information as a whole amounts toprobable cause. 

### Id.
5No. 31052-3-III State v. Davis
We consider only the information that was available to the issuing magistrate. State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110 (1994). '" It is onlythe probability ofcriminal activity, not a prima facie showing ofit, that governs probable cause. The [issuingjudge] is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit.'" Emery, 161 Wn. App. at 202 (alteration in original) (quoting State v. Maddox, 152 Wn.2d 499, 505,98 P.3d 1199 (2004». A search warrant may only be issued upon a determination ofprobable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists where there are facts sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence ofthe criminal activity can be found at the place searched. State v. Thein, 138 Wn.2d 133, 140,977 P.2d 582 (1999). We reject Mr. Davis's challenge to the search warrantbased on the 2011 amendments to the MUCA. First, the 2011 amendments to the MUCA do not apply here because the amendments were not in effect when the search warrant was issued for Mr. Davis'sproperty in 2010. The 2011 amendments do not apply retroactively. State v. Brown, 166 Wn. App. 99, 104,269P.3d 359 (2012).

6No. 31052-3-111 State 

### v. Davis Second, this courthas previously determined that where an affidavit sets forth enough details to reasonably inferthe suspect is growing marijuana onhis or her property in violation ofthe uniform controlled substances act, chapter 69.50 RCW, the affidavit does not need to showthe MUCA's inapplicability to establish probable cause. State v. Ellis, 178 Wn. App. 80I, 805-06, 315 P3d 1170 (2014). While the 2011 amendments to RCW 69.51A.040 created a medical exceptiontothe crime ofmanufacturing marijuana, this new exception functions the same as the old medical use affirmative defense provided in former RCW 69.S1A.040(1) (1999), Ellis, 178 Wn. App. at 806. The medical use affirmative defense does not invalidateprobable causeto search. 

### [d. The affidavit supporting the search warrant presents probable causeto believe that
a crime was being committed in Mr. Davis's greenhouses. The affidavit sets forth enough details toreasonably infer thatMr. Davis was growing marijuana onhis property. The MUCAhas no effect on the validity ofthe warrant to search Mr. Davis's greenhouses. The warrantto search Mr. Davis's greenhouses was supported by probable cause. Nexus Between the Greenhouses andthe Home. The Fourth Amendmentto the United States Constitutionprohibits the issuance ofa warrant unless the warrant particularly describes the place to be searched and the items orpersons to be seized. Accordingly, probable cause requires a nexus between criminal activity and the item to be
7No. 31052-3-III State v. Davis seized, and also a nexus between the place to be searched and the item to be seized. Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). While the affidavit need not make a prima facie showing ofcriminal activity, it must show criminal activity is at leastprobable. Maddox, 152 Wn.2d at 505. Warrants mustbebased on specific facts, but a magistrate reviewing a warrant application is entitled to rely on his orher own common sense and experience to determine what inferences may be reasonably drawn from the facts for purposes ofmaking probable
cause determinations. Thein, 138 Wn.2d at 148-49. "Judges looking for probable cause in an affidavit may draw reasonable inferences about where evidence is likely to be kept, including nearby land and buildings under the defendant's control." State v. Gebaroff, 87 Wn. App. 11, 16,939P.2d 706 (1997). In Thein, our Supreme Court held that mere conclusory assertions in a warrant application about the common habits ofdrug dealers were not enough, by themselves, to support the issuance ofa warrantto search a suspected drug dealer's home for contraband. Thein, 138 Wn.2d at 150-51. Specifically, the court held that a conclusory assertion in an affidavitthat drug traffickers commonly store a portion oftheir drug inventory and paraphernalia in their residences was insufficientto establish a nexus
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### No. 31052-3-111 State v. Davis
between evidence ofillegal drug activity and the placeto be searched, absent any statements actually tyingthe defendant's hometo suspected criminal activity. 

### Id. at 

### 151. Here, a sufficient nexus existedbetweenthe marijuana observed in the greenhouses and the search ofthe house and shed. The warrant established that the house and shed were located onthe same definedparcel ofland as the greenhouses and were close in proximity to one another. Theparcel ofland was ownedby Mr. Davis. Access toboth greenhouses andthe homewas from the same, single driveway. The officers observed at least 

### 20 marijuanaplants in one exposedpartofthe greenhouses. Based on these facts, it is reasonable for the courtto inferthatthe house and shed allowed for tendingthe large grow operation and provided an on-site locationto process the harvested marijuana. The affidavit in support ofthe warrant supports a reasonable inference that the house was relatedtothe marijuana growing inthe greenhouses and evidence of criminal activity could be found inside. Unlike Thein, probable cause is not based on conclusions about the general habits ofdrug offenders. Instead, specific facts establish a sufficient basis that the house and shedwere related to the marijuana growing in the greenhouses. The closephysical proximity ofthe greenhouses to the home andthe shed, Mr. Davis's control overboth areas, and the single entrance for both the house and the greenhouses, providedprobable
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### No. 31052-3-II1 State v. Davis

cause to believe that the house and shed were part ofthe marijuana manufacture operation. Accordingly, the affidavit in support ofthe search warrant established probable cause to search the home for evidence related tothe manufacture and distribution ofmarijuana. The trial court did not errwhen it denied Mr. Davis's motion to suppress the evidence found in the house and shed. A sufficient nexus existed between the house and shed and the marijuana found growing in the greenhouses. We affirm.

Lawrence-Berrey, J. WE CONCUR:



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