IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ELENA CHRISTINA TAGGE, Appellant.

_________________________________

STATE OF ARIZONA, Appellee,

v.

MATTHEW CARL TAGGE, Appellant.

No. 1 CA-CR 16-0759

 1 CA-CR 16-0785

Appeal from the Superior Court in Maricopa County

No. CR2015-113021-001

 CR2015-030181-001

The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

FILED 5-9-2019
2

Bain & Lauritano, PLC, Glendale 

By Sheri M. Lauritano

Counsel for Appellant Elena Tagge

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant Matthew Tagge

OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen joined. Judge Peter B. Swann specially 

concurred.

C A T T A N I, Judge:

¶1 Matthew and Elena Tagge appeal their convictions for illegal 

possession or use of marijuana and drug paraphernalia. The Tagges 

maintain that, because they held cards entitling them to possess and use 

marijuana under the Arizona Medical Marijuana Act (“AMMA”), they were 

immune from prosecution. We hold to the contrary that, because immunity 

under the AMMA does not extend to smoking marijuana in a public place, 

the Tagges could be prosecuted for doing so in their car in a public parking 

lot. Accordingly, and for reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The facts are undisputed. Bound for a music festival in Mesa 

one afternoon, the Tagges parked in a commercial lot near the concert 

venue. The lot was owned by the City of Mesa and had been leased to a 

radio station for parking for the event. The Tagges pulled up next to two

undercover Mesa police officers, who watched as the Tagges sat in their car 

and smoked marijuana from a pipe they passed between them. Although 

the windows of the Tagges’ car were up, police saw smoke coming from the 

pipe, ordered them out of the car and seized the pipe, along with 

approximately one gram of marijuana.

¶3 Each of the Tagges was a “qualifying patient” under the 

AMMA. See Ariz. Rev. Stat. (“A.R.S.”) §§ 36-2801(13), -2811. At trial, they 

argued that they were immune from prosecution under § 36-2811, which 

generally immunizes AMMA cardholders’ marijuana use, subject to several 
STATE v. TAGGE

Opinion of the Court

3

exceptions, including one at issue in this case: smoking in a public place. 

See A.R.S. § 36-2802(C)(2). The superior court rejected the Tagges’ 

argument, finding that although they were inside a closed car, they were in 

a public place and were not entitled to immunity. After a bench trial, the 

court convicted them of misdemeanor marijuana and paraphernalia 

offenses and imposed six months’ unsupervised probation. The Tagges 

each filed a timely appeal.

DISCUSSION

¶4 By law, the State may not subject a qualifying patient to arrest 

or prosecution for “use of marijuana pursuant to [the AMMA].” A.R.S. § 

36-2811(B)(1). This protection “broadly immunizes qualified patients, 

carving out only narrow exceptions from its otherwise sweeping grant of 

immunity.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 8 (2015). Among 

the exceptions: A qualifying patient may not possess or use marijuana “[o]n 

a school bus,” “[o]n the grounds of any preschool or primary or secondary 

school,” or “[i]n any correctional facility.” A.R.S. § 36-2802(B). And a

qualifying patient may not smoke marijuana “[o]n any form of public 

transportation” or “[i]n any public place.” A.R.S. § 36-2802(C). The 

dispositive issue here is whether the “public place” exception to immunity 

applies to smoking inside a private vehicle in a public parking lot.

¶5 This court reviews questions of statutory interpretation de 

novo. Reed-Kaliher, 237 Ariz. at 122, ¶ 6. In interpreting statutes, we give 

special care “to give effect to every clause and word.” Premier Physicians 

Grp., PLLC v. Navarro, 240 Ariz. 193, 196, ¶ 16 (2016). “[W]e look to the 

statute as a whole, and construe together all parts of the statute relating to 

the same subject.” Ariz. Health Care Cost Containment Sys. v. Bentley, 187 

Ariz. 229, 232 (App. 1996); see J.D. v. Hegyi, 236 Ariz. 39, 41, ¶ 6 (2014) 

(“Words in statutes . . . cannot be read in isolation from the context in which 

they are used.”). When a term in a statute may have differing meanings, 

we “consider[] secondary factors, such as the statute’s context, subject 

matter, historical background, effects and consequences, and spirit and 

purpose.” Premier Physicians, 240 Ariz. at 195, ¶ 9.

¶6 The Tagges first argue that the parking lot itself was not a 

public place within the meaning of the AMMA. They urge us to adopt the 

limited definition of “public place” found in the Smoke-Free Arizona Act 

(“SFAA”), which includes only an “enclosed area to which the public is 

invited or in which the public is permitted.” A.R.S. § 36-601.01(A)(9) 

(emphasis added). The Tagges assert that because both the SFAA and the 

AMMA appear in Title 36 of the Arizona Revised Statutes, we must read 
STATE v. TAGGE

Opinion of the Court

4

the two in pari materia so that the SFAA’s definition of “public place” would 

apply to every use of the phrase in Title 36.

¶7 The Tagges’ argument is unavailing because the SFAA 

expressly applies only to tobacco products, not marijuana. See A.R.S. § 36-

601.01(A)(11) (defining “[s]moking” by reference to “any lighted tobacco 

product”). The AMMA drafters could have expressly incorporated the 

public place definition from the SFAA, but they did not do so. That the two 

statutes are in the same title is insufficient to warrant application of the 

SFAA’s definition to the AMMA given the distinct subject matters and the 

different purposes of the two acts. See Moreno v. Jones, 213 Ariz. 94, 99, ¶ 28 

(2006) (in pari materia statutes “relate to the same subject or have the same 

general purpose”) (citation omitted). Accordingly, we hold that a public 

place under the AMMA is not limited to enclosed areas. Instead, a public 

place is simply “a place open to or frequented by the general public,” see 

State v. Whitaker, 164 Ariz. 359, 362 (App. 1990), and the city-owned parking 

lot in this case meets that definition. See Florida v. White, 526 U.S. 559, 566 

(1999) (employer’s parking lot is a “public area” for purposes of a Fourth 

Amendment challenge); People v. Strider, 177 Cal. App. 4th 1393, 1402 (2009) 

(parking lot is a “public place” under statute criminalizing carrying loaded 

firearm in a public place); Dornbusch v. State, 262 S.W.3d 432, 437 (Tex. Ct. 

App. 2008) (parking lot is akin to public roadway in interpreting “public 

place” element of driving-under-influence statute).1

¶8 The Tagges counter that the parking lot was not a public place 

within the meaning of the statute because, although municipally owned, 

the lot was leased to a radio station, which in turn charged concert-goers to 

park there. The Tagges do not cite and we are unaware of any authority for 

the proposition that a fee requirement for entering or using a space that 

otherwise is open to everyone renders a parking lot a non-public place, and 

we hold that the parking lot in this case was a public place for purposes of 

the AMMA.

¶9 The Tagges also argue that, even if the parking lot were 

considered to be a public place, they nevertheless were not subject to 

prosecution because they did not smoke marijuana in the open, but instead 

 

1 We note that the Department of Health Services issued regulations 

defining “public place” under the AMMA to include “parking lots.” Ariz. 

Admin. Code R9-17-101(24)(xiv). The superior court in this case, however, 

ruled that the department lacked authority to issue the regulation and held 

it invalid. The State did not cross-appeal from that ruling, see A.R.S. § 13-

4032(3), and does not argue that the regulation bears on this appeal.
STATE v. TAGGE

Opinion of the Court

5

did so inside a closed private vehicle. But the interior of a vehicle is not a 

separate place distinct from the location in which the vehicle is found. The 

expedient of being enclosed in a vehicle parked in a public place does not, 

without more, remove a person from the public place. Criminal trespass, 

for example, is not decriminalized if a trespasser’s unauthorized presence 

on a property is inside a vehicle. Simply put, a location—including a public 

place—does not change its character when a person is present in a vehicle, 

rather than on foot.

¶10 Although this is a case of first impression in Arizona, our 

conclusion that immunity under the AMMA does not extend to smoking in 

a private vehicle in a public parking lot is consistent with that reached by 

the Michigan Court of Appeals in People v. Carlton, 880 N.W.2d 803 (Mich.

Ct. App. 2015). Construing a similarly worded medical-marijuana statute, 

the Michigan court concluded that a qualifying patient cited for smoking in 

his car in a casino parking lot was not immune from prosecution. Id. at 805–

08. Noting that the statute withdrew immunity for smoking in “any public 

place” (but did not condition immunity on whether the act was done “in 

public”), the court held that immunity from prosecution for smoking 

marijuana does not extend “to [qualifying patients] who smoke medical 

marijuana in a parking lot that is open to use by the general public, even 

when smoking inside a privately owned vehicle, and even if the person’s 

smoking is not directly detectable by the members of the general public.” 

Id. at 807–10. Although the court acknowledged that the interior of a 

privately owned car can be private, it ultimately rejected the notion that a 

vehicle’s interior could be a “place” whose public or private character 

would determine immunity under the statute. Id. at 809–10.

¶11 Like the Michigan court in Carlton, we acknowledge that, in 

general, motorists in private vehicles enjoy privacy interests entitled to 

constitutional protection. See id.; see also Arizona v. Gant, 556 U.S. 332, 345 

(2009). But we agree with the Michigan court that applicability of the 

“public place” exception in the statute hinges on the character of the place, 

not on whether the qualifying patient takes steps to conceal the act or limit 

its effect on others within that place.

¶12 The Tagges alternatively argue that our statutory analysis 

ignores a separate prong of § 36-2802(C), which withdraws immunity for 

smoking marijuana “[o]n any form of public transportation.” In their view, 

the statute’s express withdrawal of immunity for smoking on public

transportation implicitly preserves immunity for smoking inside private

transportation. The Tagges suggest that, if a patient’s immunity when 

smoking marijuana in a means of private transportation hinges on the 
STATE v. TAGGE

Opinion of the Court

6

location of the means of private transportation, the statute’s separate 

reference to “public transportation” would be redundant because “any 

form of public transportation” necessarily will be located in a “public 

place,” i.e., a roadway, railway, bus station, or parking lot.

¶13 We disagree that our interpretation of the statute renders the 

“public place” and “public transportation” provisions redundant. The 

statute withdraws immunity for smoking in any public place, as well as for 

smoking on any form of public transportation (without regard to whether 

the public transportation is in a public or private place). Although public 

transportation vehicles usually travel in public places, they sometimes 

venture into otherwise non-public spaces. For example, a public bus may 

transport people over private property. Similarly, a bus may be parked in 

a restricted area of a bus depot or may undergo mechanical work in a

private garage. In any of these scenarios, under the express language of the 

statute, smoking marijuana is not permitted on the bus, even though it is 

located in a non-public place. Thus, although the “public place” and 

“public transportation” restrictions overlap to a significant extent, it is not 

necessary to read the “public transportation” provision as an implicit 

exclusion of “private transportation” to give it meaning.

¶14 Furthermore, accepting the Tagges’ view that the statute 

implicitly allows smoking in any form of private transportation would lead 

to anomalous results. Such an interpretation would allow an individual to 

smoke marijuana in the open, for example in a public park, by the simple 

expedient of perching on a motorcycle or some other form of private 

transportation. To avoid this absurd result, the court would presumably 

have to write in a windows-up requirement in addition to finding an 

implicit private-vehicle exception, all based on the statute’s reference to 

public transportation. We decline to judicially amend the AMMA to reach 

so far beyond the text of the statute, and we conclude that the public 

transportation and public place restrictions in the AMMA are 

complementary and not impermissibly redundant.

CONCLUSION

¶15 The Tagges, even though qualifying patients under the 

AMMA, lost their immunity from prosecution for marijuana and 

paraphernalia-related offenses because they were smoking marijuana in a 

public place. Although the Tagges could have consumed marijuana in the 

same location by other means, they ceded their immunity by smoking

marijuana in a public place. We thus affirm their convictions.
STATE v. TAGGE

Swann, J., Specially Concurring

7

S W A N N, Judge, specially concurring:

¶16 I agree with the majority opinion, but I write separately to 

note that it should not be overread. The determining factor in this appeal 

is the question whether the Tagges smoked marijuana in a “public place.” 

Though a person’s mere presence in a vehicle is not by itself sufficient to 

remove him or her from the public place in which the vehicle is located, the 

fact that a person is in a mobile enclosure does not necessarily mean the 

person is in a “public place.”

¶17 Our holding in this case does not extend, for example, to a 

patient who is in a traditionally private place, such as the closed bedroom 

of a mobile home lawfully parked in a public lot. The appropriate inquiry 

centers on the reasonable expectation of privacy that a patient has in the 

location where the smoking takes place—the greater the expectation of 

privacy, the less “public” the place. And though I agree that the exposed 

passenger compartment of a car does not carry with it a reasonable 

expectation of privacy when smoking marijuana, other circumstances 

involving a different type of vehicle located in a public place might dictate 

a different result.