January 8, 2008, Filed

SUBSEQUENT HISTORY: Review granted by State v. Fry, 164 Wn.2d 1002, 190 P.3d 55, 2008 Wash. LEXIS 776 (Wash., Aug. 5, 2008)

PRIOR HISTORY: [***1]
Appeal from SUPERIOR COURT STEVENS COUNTY. Superior Court No: 05-1-00023-1. Date filed in Superior Court: 9/19/06. Superior Court Judge signing: ALLEN C. NIELSON.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: The Superior Court, Stevens County (Washington), denied defendant's motion to suppress, granted the State's motion in limine excluding evidence of defendant's medical use of marijuana defense, and convicted him on stipulated facts of possession of over 40 grams of marijuana. Defendant appealed.

OVERVIEW: The appellate court found that the officers had probable cause to search defendant's house even after he produced his marijuana use authorization because the affirmative defense of medical use of marijuana did not negate probable cause. The State was authorized to investigate further. Additionally, whether the affirmative defense of medical use of marijuana under former Wash. Rev. Code § 69.51A.040(1) (1999) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, was viable was an issue for trial. Defendant's physician authorized the use of marijuana to treat his severe anxiety and anger. Although former Wash. Rev. Code § 69.51A.010(4)(d) (1991) permitted the Washington State Medical Quality Assurance Commission to approve conditions in addition to those listed in former Wash. Rev. Code § 69.51A.010(4) (1991), defendant's severe anxiety and anger was not among them. Therefore, as a matter of law, defendant was not a qualifying patient, and could not avail himself of the medical use of marijuana defense. Therefore, the appellate court concluded that the trial court did not err in prohibiting defendant from presenting the medical use defense.

OUTCOME: The appellate court affirmed the trial court's judgment.


CORE TERMS: marijuana, affirmative defense, probable cause, authorization, debilitating, self-defense, qualifying, patient, probable cause, ????terminal, anxiety, severe, Use Act, de novo, search warrant, medical condition, suppression, manufacture, odor, grams, law enforcement, criminal activity, probable cause, assurance, Probable, seizure, negated, anger, Criminal Law, Medical Use of Marijuana Act

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Pretrial Motions & Procedures > Suppression of Evidence
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Motions to Suppress
HN1Go to the description of this Headnote. An appellate court reviews conclusions of law in an order pertaining to a motion to suppress evidence de novo.


Criminal Law & Procedure > Appeals > Reviewability > Waiver > General Overview
HN2Go to the description of this Headnote. Where a defendant does not challenge a trial court's findings of fact, they are verities on appeal.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
HN3Go to the description of this Headnote. A search warrant may be issued only upon a finding of probable cause.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Affirmations & Oaths > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
HN4Go to the description of this Headnote. Probable cause supports a search warrant if an affidavit contains sufficient facts and circumstances to establish that a defendant is probably involved in criminal activity and that evidence of a crime will be found at the place to be searched.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Sensory Perceptions
HN5Go to the description of this Headnote. When a trained officer smells marijuana, that alone provides probable cause for a search.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN6Go to the description of this Headnote. Medical authorization for marijuana use is an affirmative defense under the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A. Former Wash. Rev. Code § 69.51A.040(1) (1999).


Criminal Law & Procedure > Defenses > General Overview
HN7Go to the description of this Headnote. Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN8Go to the description of this Headnote. Whether a trial court allows a defendant's medical marijuana defense is a question of law, which an appellate court reviews de novo.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN9Go to the description of this Headnote. See Former Wash. Rev. Code § 69.51A.040(1) (1999).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN10Go to the description of this Headnote. Under former Wash. Rev. Code § 69.51A.010(3) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, a qualifying patient means a person who: (a) is a patient of a licensed physician; (b) has been diagnosed by that physician as having a terminal or debilitating medical condition; (c) is a resident of the State of Washington at the time of that diagnosis; (d) has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) has been advised by that physician that he or she may benefit from the medical use of marijuana.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN11Go to the description of this Headnote. Under former Wash. Rev. Code § 69.51A.010(4) (1999) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, a terminal or debilitating medical condition includes (a) cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) intractable pain, limited for the purpose of Wash. Rev. Code ch. 69.51A to mean pain unrelieved by standard medical treatments and medications; or (c) glaucoma; or (d) any other medical condition duly approved by the Washington state medical quality assurance board commission as directed in Wash. Rev. Code ch. 69.51A.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN12Go to the description of this Headnote. A defendant is required to show by a preponderance of the evidence that he has met the requirements of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A.


Hide Headnotes / Syllabus


SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for unlawful manufacture of a controlled substance and unlawful possession of more than 40 grams of marijuana.

Superior Court: After denying the defendant's motion to suppress evidence, granting the State's motion in limine to exclude the defendant's medical use of marijuana defense, and dismissing the charge of unlawful manufacture, the Superior Court for Stevens County, No. 05-1-00023-1, Allen Nielson, J., entered a judgment of guilty on September 19, 2006.

Court of Appeals: Holding that the defendant's production of a marijuana use authorization did not negate a determination of probable cause for the issuance of the warrant to search his residence and that the defendant was not a qualifying patient and could not avail himself of the affirmative defense of medical use of marijuana, the court affirms the judgment.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA(1)[1] Criminal Law ?? Evidence ?? Suppression ?? Conclusions of Law ?? Review ?? Standard of Review. A trial court's conclusions of law entered in support of a ruling on a motion to suppress evidence in a criminal trial are reviewed de novo.

WA(2)[2] Criminal Law ?? Evidence ?? Suppression ?? Findings of Fact ?? Failure To Assign Error ?? Effect. Unchallenged findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence in a criminal trial are verities on appeal.

WA(3)[3] Searches and Seizures ?? Warrant ?? Probable Cause ?? Determination ?? In General. A search warrant may issue only upon a magistrate's finding of probable cause based on averments made by affidavit of sufficient facts and circumstances establishing that criminal activity is occurring and that evidence of such criminal activity will be found at the place to be searched.

WA(4)[4] Searches and Seizures ?? Warrant ?? Probable Cause ?? Determination ?? Odor of Marijuana. The detection of the odor of marijuana by a police officer who is trained and experienced in marijuana detection is sufficient, by itself, to establish probable cause for the issuance of a warrant to search for evidence of marijuana possession or manufacture.

WA(5)[5] Controlled Substances ?? Marijuana ?? Medical Use Act ?? Affirmative Defense ?? In General. Medical authorization for marijuana use is an affirmative defense under former RCW 69.51A.040(1) (1999) of the Medical Use of Marijuana Act.

WA(6)[6] Criminal Law ?? Defense ?? Affirmative Defense ?? Stage of Proceeding. Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.

WA(7)[7] Controlled Substances ?? Marijuana ?? Medical Use Act ?? Negation of Probable Cause for Search ?? Investigation by State. A person's mere production of a document purporting to be a marijuana use authorization does not provide automatic protection against a reasonable police investigation and search into suspected marijuana possession or manufacture and does not prohibit further investigation by the State.

WA(8)[8] Controlled Substances ?? Marijuana ?? Medical Use Act ?? Affirmative Defense ?? Stage of Proceeding. The viability of the affirmative defense of medical use of marijuana is an issue for trial and is not an issue for police officers to consider in the course of investigating suspected marijuana possession or manufacture.

WA(9)[9] Controlled Substances ?? Marijuana ?? Medical Use Act ?? Affirmative Defense ?? Issues of Law ?? Review ?? Standard of Review. Questions of law concerning the affirmative defense of medical use of marijuana are reviewed de novo.

WA(10)[10] Controlled Substances ?? Marijuana ?? Medical Use Act ?? Affirmative Defense ?? Burden of Proof ?? Degree of Proof. A defendant asserting the affirmative defense of medical use of marijuana must show by a preponderance of the evidence that he or she meets the requirements of the Medical Use of Marijuana Act (ch. 69.51A RCW).

WA(11)[11] Controlled Substances ? Marijuana ?? Medical Use Act ?? Affirmative Defense ?? Qualifying Patient ?? Severe Anxiety or Anger. Under the Medical Use of Marijuana Act (ch. 69.51A RCW) and the rules adopted by the State Medical Quality Assurance Commission in furtherance of the act, severe anxiety and anger are not qualifying conditions for the lawful use of marijuana.

COUNSEL: William D. Edelblute, for appellant.

John G. Wetle, Prosecuting Attorney, and John A. Troberg, Deputy, for respondent.

JUDGES: Schultheis, J. WE CONCUR: Sweeney, C.J., Brown, J.

OPINION BY: Schultheis

OPINION

[*458] [**1259] ¶1 Schultheis, J. ?? Following the denial of a suppression motion, Jason Lee Fry was convicted on stipulated facts of possession of over 40 grams of marijuana. On appeal, he contends his production of an authorization for medical use of marijuana negated probable cause to search his house. He also asserts the trial court erred in rejecting his proposed defense under the Washington State Medical Use of Marijuana Act (Act), chapter 69.51A RCW. We affirm.
FACTS

¶2 The facts are undisputed. On December 20, 2004, Stevens County sheriff's deputies went to Mr. Fry's house after obtaining information that he was growing marijuana. As officers approached the front porch, they could smell marijuana. When Mr. Fry opened the front door, the odor of marijuana was even stronger. Mr. Fry told the officers he had a prescription [***2] for marijuana and asked them to leave. His wife produced a document entitled ??Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State? for Mr. Fry. Clerk's Papers (CP) at 8. The authorization stated that marijuana may help Mr. Fry's ??severe anxiety, rage, & depression related to childhood.? CP at 9.

¶3 Officers obtained a search warrant and found several containers of marijuana and numerous marijuana plants. [*459] The seized amount totaled more than two pounds (911 grams). The State charged Mr. Fry with manufacturing marijuana and possession of more than 40 grams of marijuana.

¶4 Mr. Fry moved to suppress the evidence, arguing that once the officers were shown the medical use document, probable cause for the search no longer existed. The State countered that medical use of marijuana under the Act is an affirmative defense for trial, not a defense to probable cause.

¶5 The court denied Mr. Fry's motion, finding the odor of marijuana provided probable cause to search his home and any evidence found as a result could either support or refute the medical marijuana affirmative defense. It also found that an affirmative defense does not negate probable cause, reasoning [***3] that such defenses are for the trier of fact not for earlier stages in the proceedings. The court granted Mr. Fry's request for a stay pending his motion for discretionary review. A commissioner of this court denied Mr. Fry's motion for discretionary review.

¶6 The State moved in limine to exclude the medical use defense, arguing that Mr. Fry was not a qualifying patient under the Act because severe anxiety is not a terminal or debilitating condition as defined by the Act. The trial court excluded use of the defense. Following a bench trial on stipulated facts, Mr. Fry was convicted of possession of over 40 grams of marijuana. The manufacture of marijuana charge was dismissed.
DISCUSSION

¶7 We first address Mr. Fry's contention that the trial court erred in ruling that officers had probable cause to search his house after he produced medical authorization for marijuana use. Mr. Fry argues that his production of a medical use certificate negated probable cause for the search. Citing McBride v. Walla Walla County, 95 Wn. App. 33, 40, 975 P.2d 1029, 990 P.2d 967 (1999), the State [*460] counters that the medical use affirmative defense does not negate probable cause. Rather, the defense is to be determined [***4] by a judge or jury at trial, not law enforcement.

WA(1)[1, 2] ¶8 HN1Go to this Headnote in the case.We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). HN2Go to this Headnote in the case.Mr. Fry does not challenge the trial court's findings of fact; therefore they are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

WA(3)[3, 4] ¶9 HN3Go to this Headnote in the case.A search warrant may be issued only upon a finding of probable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). HN4Go to this Headnote in the case.Probable cause supports a search [**1260] warrant if the affidavit contains sufficient facts and circumstances to establish that the defendant is probably involved in criminal activity and that evidence of a crime will be found at the place to be searched. Id. It is well settled that HN5Go to this Headnote in the case.when a trained officer smells marijuana, this alone provides probable cause for a search. State v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110 (1994).

WA(5)[5-8] ¶10 HN6Go to this Headnote in the case.Medical authorization for marijuana use is an affirmative defense under the Act. Former RCW 69.51A.040(1) (1999). HN7Go to this Headnote in the case.Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings. McBride, 95 Wn. App. 33. The issue in McBride was whether the affirmative defense [***5] of self-defense negated probable cause to arrest the defendant for assault. The defendant did not dispute hitting the victim but claimed officers lacked probable cause to arrest him because they had information he was acting in self-defense. In concluding that the self-defense claim did not weaken probable cause, the court reasoned:

Self-defense is an affirmative defense which can be asserted to render an otherwise unlawful act lawful. But the arresting officer does not make this determination. The officer is not judge or jury; he does not decide if the legal standard for self-defense is met. Moreover, [the arresting officer] had only one side of the story. Mr. McBride's claim of self-defense was [*461] then a mere assertion, not fact. The self-defense claim did not vitiate probable cause.

Id. at 40.

¶11 This reasoning applies here. Information relating to the validity of a suspect's medical use defense will almost always be within the defendant's knowledge. The defendant's assertion of the defense is not necessarily a fact; further development of the facts at trial may well show that the medical use defense is not viable. Therefore, the mere production of a document purporting to be a marijuana [***6] use authorization does not prohibit further investigation by the State. Here, probable cause to search Mr. Fry's house existed as soon as officers smelled marijuana. His production of a medical use document did not provide automatic protection against a reasonable police investigation and search. Whether the affirmative defense of medical use of marijuana was viable was an issue for trial.

WA(9)[9] ¶12 Next, we address whether the trial court erred in disallowing Mr. Fry's medical marijuana defense. Again, because HN8Go to this Headnote in the case.this involves a question of law, our review is de novo. Ross, 106 Wn. App. at 880.

¶13 HN9Go to this Headnote in the case.Former RCW 69.51A.040(1) states, ??any qualifying patient who is engaged in the medical use of marijuana ? will be deemed to have established an affirmative defense to ? charges [of violating marijuana law] by proof of his or her compliance with the requirements provided in this chapter.? HN10Go to this Headnote in the case.Under this statute, a qualifying patient means a person who:

(a) Is a patient of a [licensed] physician ? ;

(b) Has been diagnosed by that physician as having a terminal or debilitating medical condition;

(c) Is a resident of the state of Washington at the time of such diagnosis;

(d) Has been advised by that physician [***7] about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that physician that they may benefit from the medical use of marijuana.

RCW 69.51A.010(3).

[*462] ¶14 The trial judge prevented Mr. Fry from bringing the defense on the ground that his condition was not a terminal or debilitating medical condition under the Act. HN11Go to this Headnote in the case.A terminal or debilitating medical condition includes:

(a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or

(b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or

(c) Glaucoma ? ;

(d) Any other medical condition duly approved by the Washington state medical [**1261] quality assurance board [commission] as directed in this chapter.

Former RCW 69.51A.010(4) (1999) (second alteration in original).

WA(10)[10] ¶15 HN12Go to this Headnote in the case.Mr. Fry is required to show by a preponderance of the evidence that he has met the requirements of the Act. State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235 (2002). He fails to do so. Relying primarily on Shepherd, Mr. Fry claims that because that court found the defendant was a ??qualifying patient? under the Act even though his medical [***8] use document did not specify his terminal or debilitating condition, Mr. Fry must qualify because his physician determined that he had a debilitating condition.

¶16 But Mr. Fry's reliance on Shepherd is misplaced. In that case, the defendant suffered from a debilitating spine condition. His physician's authorization for medical use stated that he was treating the defendant for a ????terminal illness or debilitating condition as defined in RCW 69.51A.010??? but declined to specify the condition. Id. at 547. However, the Shepherd court was not asked to determine whether Mr. Shepherd's condition qualified under the Act. In fact, it appears the parties did not dispute that the defendant suffered from a debilitating condition. Shepherd is not instructive here.

WA(11)[11] ¶17 Mr. Fry's physician authorized the use of marijuana to treat Mr. Fry's severe anxiety and anger. Although [*463] former subsection (4)(d) of the Act permits the Washington State Medical Quality Assurance Commission to approve conditions in addition to those listed in former RCW 69.51A.010(4), Mr. Fry's condition is not among them. Therefore, as a matter of law, Mr. Fry is not a qualifying patient and cannot avail himself of the medical marijuana defense. [***9] We conclude the trial court did not err in prohibiting Mr. Fry from presenting the medical use defense.

¶18 Affirmed.

Sweeney, C.J., and Brown, J., concur.

Review granted at 164 Wn.2d 1002 (2008).
jamessr Reviewed by jamessr on . Most recent MMJ cases in Washington-posted in sections PRIOR HISTORY: Appeal from Clallam Superior Court. Docket No: 07-1-00107-6. Judgment or order under review. Date filed: April 17, 2008. Judge signing: Honorable S Brooke Taylor, George Wood. State v. Otis, 151 Wn. App. 572, 213 P.3d 613, 2009 Wash. App. LEXIS 1980 (Wash. Ct. App., 2009) CASE SUMMARY PROCEDURAL POSTURE: The Clallam Superior Court, Washington, convicted defendant of manufacturing marijuana. Defendant appealed. OVERVIEW: On review, defendant contended the trial Rating: 5