STATE OF WASHINGTON v. MATTHEWS, 22875-1-II

• Decision Date: 12 February 1999
• Docket Number: No. 22875-1-II,22875-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT, v. TYLAN G. MATTHEWS, APPELLANT.

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; TYLAN G. MATTHEWS, APPELLANT.
[3]	No. 22875-1-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Grays Harbor County Docket No: 97-1-00165-2 Judgement or order under review Date filed: 01/26/1998 Judge signing: Hon. Gordon L. Godfrey
[6]	February 12, 1999
[7]	Counsel: Counsel for Appellant(s) Tylan G. Matthews (Appearing Pro Se) P.o. Box 59 Oakville, WA 98568 Counsel for Respondent(s) James G. Baker Grays Harbor Co Deputy Pros Atty P.o. Box 550 Montesano, WA 98563
[8]	The opinion of the court was delivered by: Houghton, J.
[9]	Judges: Authored by Elaine M. Houghton Concurring: Carroll C. Bridgewater J. Robin Hunt
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	Tylan Gay, Matthews*fn1 appeals his conviction for manufacture of marijuana and possession of more than 40 grams of marijuana. He challenges the search of his residence, the constitutionality of the Uniform Controlled Substances Act, and the trial court's rulings denying him religious and medical use defenses. We affirm.
[12]	FACTS
[13]	On June 10, 1996, appellant Matthews was sentenced to a term of confinement and 24 months of community supervision after a conviction for manufacturing marijuana. Matthews appealed his conviction. As a condition of release pending appeal, the trial court ordered Matthews to be on community supervision. Bill Corbett of the Department of Corrections (DOC) was assigned as Matthews' community corrections officer (CCO).
[14]	On June 20, 1996, CCO Pat Gosney reviewed the DOC standard conditions, requirements, and instructions for community supervision with Matthews. Matthews was told that, as a condition of his release, he was subject to a search of his person and residence. Matthews refused to sign the standard conditions document because he believed he was not subject to its provisions while his conviction was on appeal.
[15]	In March 1997, Sergeant Thomas Schmidt of the Grays Harbor County Drug Task Force (DTF) received a letter containing information associating Matthews with medical marijuana distribution. The letter was sent by an Ocean Shores police officer whose wife worked at an Aberdeen answering service, Westside Communications. Matthews had contacted Westside to request their services mailing out to interested callers an information packet on how to obtain marijuana for medical use from Switzerland. The sergeant's wife turned the information packet over to her husband, who forwarded it to Sergeant Schmidt. Schmidt checked Matthews' background, learned he was on community supervision, and forwarded the information to the DOC. The information eventually reached Corbett, but Corbett could not recall when he received it.
[16]	Early in May, Corbett was contacted by Detective Troy Thornburg of the Lewis County Unified Narcotics Enforcement Team (UNET), who told him that Matthews had been linked to an advertisement in an Arizona newspaper regarding medical marijuana use. The advertisement listed a post office box number that law enforcement traced to Matthews. On May 2, 1997, Thornburg faxed a copy of the advertisement to Corbett. Corbett was uncertain whether the advertisement offered for sale marijuana or marijuana-related literature. That same afternoon, Corbett requested and received permission from a DOC supervisor to conduct an administrative/supervisory search of Matthews' residence. Corbett then contacted Detective Tony Carlow of the DTF to request DTF assistance and a drug-sniffing dog for the search.
[17]	At 8:00 a.m. on May 5, 1997, the next business day, DTF officers Schmidt and Carlow met with Corbett and CCO Tom Perrine to discuss the search. The DOC and DTF officers then proceeded separately to Matthews' residence. Detective Doug Smythe of the DTF met them at the scene. After gaining entrance and handcuffing Matthews, the officers searched the residence and found small amounts of marijuana and drug paraphernalia.
[18]	Smythe had assisted in a 1995 search of Matthews' residence and knew that marijuana had been growing in the basement beneath the mobile home at that time. Smythe located the basement door, which was padlocked. Both Matthews and Jamie Matthews (Matthews' roommate who was home at the time)*fn2 claimed they did not know where the key was. Smythe pried the hasp from the door with a crow bar and opened a second plywood door leading to the basement. Smythe recognized the smell of growing marijuana and saw a metal halide light and shield covering 129 marijuana plants.*fn3 Matthews and Jamie Matthews were arrested.
[19]	Detective Carlow and another detective prepared an affidavit and obtained a search warrant. The DTF officers reentered the residence and conducted a search. The officers seized the plants, grow equipment, several jars of marijuana, a personal computer, and other evidence.
[20]	The officers obtained a warrant to search the contents of the computer. They allegedly found marijuana and hemp literature and order forms for ordering marijuana for medical use by mail.*fn4 Lists of persons who had allegedly ordered marijuana from Matthews were also found, as well as information on organizations involved in campaigns to legalize marijuana and hemp-growing in the U.S.*fn5
[21]	Matthews was charged with manufacturing marijuana in violation of the Uniform Controlled Substances Act, RCW 69.50.401(a)(1).*fn6 The trial court accepted Matthews' waiver of attorney and allowed him to represent himself.
[22]	On July 21, 1997, the trial court granted the State's motion to amend the information. The amended information charged Matthews with the additional count of possession of more than 40 grams of marijuana. RCW 69.50.401(d). Matthews waived reading of the amended information in open court. The trial court explained the contents of the amended information to Matthews. The court set an arraignment on the amended charge for the following week, but apparently the arraignment never took place.
[23]	On August 22, 1997, Matthews filed a motion to disqualify the Judge. He argued that the Judge was prejudiced and had stated that "the search was good" before the motion to suppress was heard. The court denied the motion as untimely because it had already made discretionary rulings in the case.
[24]	On December 19, 1997, the court held a CrR 3.6 suppression hearing. Corbett, Perrine, and Schmidt testified for the State. They said that the CCO officers first gained entry to the residence and then radioed the DTF officers, who were waiting outside, to come in and assist. Matthews and Jamie Matthews testified that all of the officers entered together. According to the CCOs, they knocked on the door and identified themselves, and then Jamie Matthews opened the door. According to Matthews and Jamie Matthews, the officers knocked and then, without waiting for an answer, forced the door open, cracking the door's strike plate. Matthews submitted into evidence a photograph and videotape of the damaged door frame.
[25]	The trial court denied the motion to suppress and entered findings of fact and Conclusions of law. The court found that: (1) Matthews was informed that he was subject to DOC searches as a condition of his community supervision; (2) the DTF officers did not enter the residence until radioed by the CCO officers from inside; (3) Jamie Matthews voluntarily opened the front door and admitted the CCO officers; and (4) no force was used by the CCO officers to gain entry. The court concluded that: (1) Matthews was lawfully subject to the DOC search; (2) Corbett had sufficient information to provide a well-founded suspicion in support of the search; and (3) all evidence seized was admissible.
[26]	A jury trial had been set for January 13, 1998. On that morning, the court granted the State's motion in limine to preclude Matthews' defenses of religious use and medical necessity at trial. Matthews made an offer of proof for the record.
[27]	Matthews waived his right to a jury trial and submitted the case to the trial court on stipulated facts. The trial court found Matthews guilty of both counts. Matthews was sentenced to twelve months and one day on the manufacture count and two months on the possession count, to be served concurrently. Matthews appeals.
[28]	ANALYSIS
[29]	I. Motion to Suppress
[30]	Matthews assigns several errors to the trial court's denial of his motion to suppress the evidence. He contends that he was not subject to DOC searches, DOC impermissibly acted with law enforcement in conducting the search, the officers forced entry into his home, and the DOC lacked a well-founded suspicion to authorize the search.
[31]	A. Subject to Search
[32]	Matthews asserts he was not subject to DOC searches while his conviction was on appeal. As a condition of release pending appeal, the trial court ordered Matthews to "be on community supervision and . . . abide by rules and regulations of the {DOC}." Matthews was told by the DOC that he was subject to a search of his person and residence at the order of his CCO, but Matthews refused to acknowledge this condition by signing the DOC "Conditions, Requirements, and Instructions" form.
[33]	In State v. Lucas, Division One held that the State's interest in a defendant released pending appeal is the same as in a probationer or parolee. State v. Lucas, 56 Wn. App. 236, 240-41, 783 P.2d 121 (1989), review denied, 114 Wn.2d 1009 (1990). Probationers and parolees have diminished privacy rights under both the Fourth Amendment and Article I, Section 7 of the Washington Constitution. Warrantless searches are permitted if reasonable. State v. Patterson, 51 Wn. App. 202, 204-06, 752 P.2d 945, review denied, 111 Wn.2d 1006 (1988). The rationale for this exception to the warrant requirement is that a person judicially sentenced to confinement but released on parole remains in custodia legis until the expiration of his or her maximum sentence. State v. Simms, 10 Wn. App. 75, 82, 516 P.2d 1088 (1973), review

...