### FILED JAN09,2013 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31280-1-111 ) Respondent, ) ) V. ) ) DANIEL 

### K. ELLIS, ) PUBLISHED OPINION ) Appellant. ) BROWN, J.-Daniel K. Ellis appeals his conviction for second degree unlawful firearm possession, contending the trial court erred in denying his suppression motion. He contendsthe search warrant lacked probable cause to believe his marijuana growing operation was criminal, considering tensions between the Uniform Controlled SubstancesAct (CSA), chapter 69.50 RCW, and the Washington State Medical Use of CannabisAct (MUCA), chapter 69.51A RCW. We disagreewith him and affirm. FACTS The facts are undisputed. In March 2012, Spokane County Sheriff's Deputy Mark Bennervisited Mr. Ellis's residence to arrest a third party on local warrants. He smelled a marijuana odorwith increasing potency as he approached the house. Because two unfriendly dogs prevented him from accessing the front door, he beganNo. 31280-1-111 State v. Ellis looking for anotherway to contact the residents. Nearthe garage, he again smelled a marijuana odor and saw a very bright light emitting from the edges ofwindows mostly covered by black plastic. Peering inside, he saw walling and insulation encompassing about a quarter ofthe interior space. Based on his training and experience, he believed Mr. Ellis was growing marijuana at his residence. Deputy Benner submitted an affidavit and obtained a warrant to search the residence for evidence of marijuana manufacturing in violation ofthe CSA. While executing the search warrant, law enforcement found one active and two inactive marijuana growing rooms, two valid MUCA growing permits, and a loaded shotgun. Mr. Ellis is a convicted felon. The State charged Mr. Ellis with second degree unlawful firearm possession. He moved to suppress the shotgun underthe exclusionary rule, arguing the search warrant lacked probable cause to believe his marijuana growing operation was criminal. The trial court denied the motion in written factual findings and legal conclusions stating: 1. Courts have been struggling with the medical marijuana issues for over a decade. 2. The state legislature has attempted to fix those issues overtime. 3. There is no realistic way for law enforcement to determine ifsomeone is a medical marijuana user. 4. An authorized medical marijuana user must still comply with state law. 5. Law enforcement did not know ifthe defendantwas in compliance with the medical marijuana statute. 1. Underthe medical marijuana laws, there are limits. 2. It is still a violation ofthe law to have excess marijuana. 3. HIPAA[1] privacy laws prevent asking doctors about medical marjjuana patients. 1 Health Insurance Portability and Accountability Act of 1996, Pub. 

### L. No.104­ 191, 110 Stat. 1936 (codified in titles 18, 26, 29, and 42 U.S.C.). 2No. 31280-1-111 State v. Ellis 4. That invasion has to bejustified by either a warrant or exigent circumstances. 5. Law enforcement has the authority to determine a defendant's compliance with state statutes regarding medical marijuana. 6. Based on the state ofthe law, as it currently exists, the search warrant was valid. 7. Law enforcement was lawfully allowed to search the home and gather evidence. Clerk's Papers at 35-36. The court found Mr. Ellis guilty following a stipulated facts trial. He appealed. ANALYSIS The issue is whetherthe trial court erred in denying Mr. Ellis's suppression motion. He challenges the court's legal conclusion that probable cause supported the search warrant. Specifically, he argues while the affidavit may have presented probable cause to believe he was growing marijuana, it did not, considering the activities decriminalized by MUCA, present probable cause to believe he was violating the CSA in doing so. We review legal conclusions regarding evidence suppression de novo.2 State v. Mendez, 137 Wn.2d 208,214,970 P.2d 722 (1999), abrogatedon other grounds byBrendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 

### L. Ed. 2d 132 (2007). And, we review de novo whether qualifying sworn information as a whole

2 The factual findings regarding evidence suppression are verities on appeal because Mr. Ellis does not challenge them. See State v. Christian, 95 Wn.2d 655, 656, F 628 P.2d 806 (1981); RAP 10.3(g). But we still consider them in determining whether they support the legal conclusions. See State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 

# I 1266 (2009). 

### 3 

# \ 

# INo. 31280-1-111 State v. Ellis presents probable cause supporting a search warrant. 3 In re Det. ofPeterson, 145 Wn.2d 789,800,42 P.3d 952 (2002). A judicial officer may not issue a search warrant unless he orshe determines probable cause supports it. U.S. CONST. amend. IV; CONST. art. I, 

### § 7; CrR 2.3(c). "Probable cause exists ifthe affidavit in support ofthe warrant sets forth facts and circumstances sufficientto establish a reasonable inference thatthe defendant is probably involved in criminal activity and thatevidence ofthe crime can be found atthe place to be searched." State v. Thein, 138Wn.2d 133, 140,977 P.2d 582 (1999) (citing State v. Cole, 128Wn.2d 262, 286,906 P.2d 925 (1995»; see State v. Patterson, 83 Wn.2d 49,58,515 P.2d 496 (1973). "Accordingly, 'probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.'" Thein, 138Wn.2d at 140 (quoting State v. Goble, 88Wn. 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 least probable. See State v. Maddox, 152Wn.2d 499,505,98 P.3d 1199 (2004). The CSA generally criminalizes growing marijuana: "Except as authorized bythis chapter, it is unlawful for any person to manufacture
... a controlled substance,"

3 Further, we interpreta statute de novo. Multicare Med. Ctr. v. Dep't ofSoc. & Health Servs., 114Wn.2d 572,582 n.15, 790 P.2d 124 (1990). When doing so, we "discern and implement" our legislature's intent. State v. J.P., 149 Wn.2d 444,450,69 P.3d 318 (2003); see State ex rei. GreatN. Ry. v. R.R. Comm'n ofWash., 52 Wash. 33, 36, 100 P. 184 (1909). Ifthestatute's meaning is plain, we effectuate it as an expression ofour legislature's intent. Dep't ofEcology v. Campbell& Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d4 (2002); Walkerv. City ofSpokane, 62Wash. 312, 318,113 P. 775 (1911). 

### 4No. 31280-1-111 State v. Ellis including marijuana.4 RCW 69.50.401 (1); see RCW 69.50.401 (2)(c), .204(c)(22). But MUCA decriminalizes growing marijuana ifa person meets certain requirements: The medical use ofcannabis in accordance with the terms and conditions ofthis chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions ofthis chapter may not be arrested, prosecuted, or subjectto other criminal sanctions
... for
... manufacture
... of
... cannabis under state law
.... RCW 69.51A.040. Still, this provision's reach is narrow: "Nothing in this chapter shall be construed to supersede Washington state law prohibiting the
... manufacture
... of cannabis for nonmedical purposes." RCW 69.51A.020. Interpreting these statutes together, we conclude MUCA created a potential medical use exception to the CSA's general rule criminalizing marijuana manufacturing. At leastfor purposes ofprobable cause, this new exception functions aboutthe same as the old medical use affirmative defense provided in former RCW 69.51A.040(1) (1999). See generallyVitaliy Mkrtchyan, Note, Initiative 692, Nowand Then: The Past, Present, andFuture ofMedical Marijuana in Washington State, 47 GONZ. L. REV. 839,863-64 (2012) (discussing the medical use exception's possible limitations). In State v. Fry, 168Wn.2d 1,228 P.3d 1 (2010), a plurality ofour Supreme Court held the medical use affirmative defense did notvitiate probable cause supporting a search warrant. The lead opinion affirmed this division's analysis on this issue while the concurring opinion expressed no view on this issue. Id. at 10 (J.M. Johnson, J., lead opinion), affg State v. Fry, 142Wn. App. 456, 460-61, 174 P.3d 1258 (2008); id. at 20 (Chambers, J.,

4 Because law enforcement obtained and executed the warrant in March 2012, we do not considerthe November2012 amendments made by Initiative 502, Laws of 2013, ch. 3 (codified in chapters 46.04, 46.20, 46.61, and 69.50 RCW). 5No. 31280-1-111 State v. Ellis concurring). Because MUCA did not per se legalize marijuana or alterthe established elements ofa CSAviolation, the thrust of Frysurvived Laws of2011, ch. 181, 

### § 401 (codified at RCW 69.51A.040). Ourconclusion is consistent with legislative history. While our legislature initially soughtto prohibit searches for evidence of marijuana-based crimes unless supported by probable cause ofsome MUCA noncompliance, those provisions were eventually removed orvetoed. Compare S.B. 5073, 

### §§ 401, 901, 904, 62d Leg., Reg. Sess. (Wash. 2011), andENGROSSED SECOND SUBSTITUTE S.B. 5073, 

### §§ 401,901-902, 62d Leg., Reg. Sess. (Wash. 2011), with LAws OF 2011, ch. 181, 

### §§ 401,901, andVeto Message on Engrossed Second Substitute S.B. 5073, from Governor Christine Gregoire to the President and Members ofthe Senate (Apr. 29, 2011), reprintedin LAwsOF 2011, at 1374-76. Consequently, the MUCA exception applies to marijuana-based arrests, prosecutions, and criminal sanctions, but not searches. See RCW69.51A.040; S.B. REP. on Engrossed Second Substitute S.B. 5073 asAmended bythe House on Apr. 11, 2011, 

## at 7, 62d Leg., Reg. Sess. (Wash. 2011); Veto Message on Engrossed Second Substitute S.B. 5073, supra. ConSidering all, we hold an affidavit supporting a search warrant presents probable cause to believe a suspect committed a CSAviolation where, as here, it sets forth enough detailsto reasonably inferthe suspect is growing marijuana on his or her property. The affidavit need not also showthe MUCA exception's inapplicability. In so holding, we respectfully disagree with United States v. Kynaston, No. CR-12-0016­ WFN, slip op. at2 (E.D. Wash. May 31,2012) (granting a suppression motion and 

### 6No.**31280~1-1I1** State v. Ellis concluding that underWashington law, an affidavit supporting a search warrant for evidence ofa marijuana-based crime "must show probable cause that the criteria ofthe medical marijuana exception have not been met"), 

### rev'd, No. 12-30208 (9th Cir. July 24, 2013). Here, the trial court did not err in denying Mr. Ellis's suppression motion. Affirmed.
Brown, J. 

### I CONCUR:

7

### No. 31280-1-111

FEARING,

### J. (concurring) - I agree with the dissenting opinion in State 

### v. 

### Fry, 168 

### Wn.2d 1,20,228 P.3d 1(2010)(Sanders, J., dissenting). One's growing ofmarijuana should not supportprobable causeto search one's property when one possesses authorization to growthe plant for medicinal purposes. RCW 69.5IA.040 now reads, "The medical use ofcannabis
...does notconstitute
a crime and a qualifyingpatient or designated providerin compliance withthe terms and conditions ofthis chapter may not be arrested, prosecuted, or subject to other criminal sanctions
...." Nor may the medicinal user orproviderhave his orher "real orpersonal property seized or forfeited[,]" providedthe user orprovidercomplies with all other provisions ofthe medical marijuana law. RCW 69.51A.040. Here, whenDeputy Mark Benner approached Daniel Ellis' home, Ellis was absent and could notpresentDeputy Benner authorizationpapers. Butthe deputy, before seeking a warrant, could have f 

### investigatedthe legality ofEllis' growing marijuana. Bennercouldhave returnedto the 

# I f home later and asked Ellis to showhis authorizationto grow. In 1998, the voters ofWashington approved Initiative 692, the Washington State 

# t Medical Use ofMarijuanaAct (MUMA), chapter 69.51ARCW. Thepeople found that "humanitarian compassionnecessitates that the decision to authorize the medical use of 

# I

f 

### marijuanabypatients with terminal or debilitating illnesses is a personal, individual

### No. 31280-1-III State 

### v. Ellis 

### decision, based upon their physician'sprofessional medicaljudgmentand discretion." MUMA, LAWS OF 

### 1999, ch. 2, 

### §§ 1-2 (now codified as amended at RCW69.S1A.OOS). Forpatients to smoke marijuana, someone must grow the plant. Washington medicinal marijuana law reflects the unamericanprinciple thatthe innocent user orgrower carries the burden ofestablishing his orher guiltlessness. 

### In 

### Fry,
aplurality ofthe court recognized that authorization to grow marijuana is "[a]n affirmative defense [that] admits the defendant committed a criminal actbutpleads an
excuse for doing so." 168 Wn.2d at 7 (J.M. Johnson, 1., lead opinion). The accused may present authorization as a defense only afterbeing "chargedwith a violation." 

### Id. at 9. Because authorization to grow medicinal marijuana does notnegateprobable cause, law enforcementmay treat a medical marijuana grower or user as a criminal suspect through searches ofhis orherproperty, despite the grower oruser not being guilty ofa crime. 

### Id. at 6. Thus, underthe current state ofthe law, law enforcement could search a medicinal grower's property every day and impose uponthe grower the burden ofproving his orher innocenceto avoid arrest, prosecution, or othercriminal sanctions. Humanitarian compassion takes a back seat. MUMA has not changed to the benefit ofDaniel Ellis since theFry

### decision. 

### In 2011, 

### the State legislature adopted a comprehensive amendmentto the law that, among 

# I

other things, provided for licensing ofmarijuanaproducers withthe Department of Agriculture andrequired a law enforcement officerto ascertain whethertheperson or 

# I i 2

### No. 31280-1-III State v. Ellis

location under investigation was registered with the Departmentbefore obtaining a search warrant. S.B. 5073, 

### §902(1), 62d Leg., Reg. Sess. (Wash. 2011). But Governor Christine Gregoire vetoed section 902 ofthe bill, basedupon ajustifiable concernthat state employees might be prosecuted under federal law for aiding in the production ofa controlled substance. Veto Message on Engrossed Second Substitute S.B. 5073, from Governor Gregoire to the President and Members ofthe Senate (Apr. 29, 2011), reprinted in LAWS OF 2011, at 1374-76. Washington Initiative 502, LAWS OF 2013, ch. 3 (codified in chapters 46.04,46.20,46.61, and 69.50 RCW), may temper, but it will not erase the discordant provisions ofthe State's medical marijuana law. MUMAwill continueto exist aside the limited legalization ofmarijuana, because MUMA's provisions target exclusively medicinal, notrecreational, users. See Vitaliy Mkrtchyan, Note, Initiative 692, Now andThen: The Past, Present, andFuture of MedicalMarijuana in Washington State, 47 GONZ. 

### L. 

### REv. 839, 873 (2012). As a member ofthe Court ofAppeals, I deferto the decisions ofthe state Supreme Court. Although I disagree withthe lead opinion inFry, itprovides the answerto the question ofwhether the warrant to searchDaniel Ellis' home was basedupon probable 

# I 

# I
t t 

## l ! 

### 3 ,. 1;

# I I**~: ~**  !

# I

I 

### No.31280-I-II1 State v. 

### Ellis



### cause and answers the question in the affinnative. Therefore, I must concur in our majority's affinnation ofDaniel Ellis' conviction for an unrelated crime.

# ~ .

# ~,**Fearin~** )

I 

### CONCUR:
Siddoway, A.C.J. 

# I I 

# I ! 

# I I I 

# I ! ! 

# I I I 

# ! I 

# I I 

# I 

# I 

# I
1 ! I
4 

# I ! 

# I
, I



### , , f