State v. Nelson

• Decision Date: 28 October 2008
• Docket Number: No. DA 07-0339.,DA 07-0339.
• Citation: 195 P.3d 826,2008 MT 359
• Parties: STATE of Montana, Plaintiff and Appellee, v. Timothy Scott NELSON, Defendant and Appellant.
• Court: Montana Supreme Court

195 P.3d 826

2008 MT 359

STATE of Montana, Plaintiff and Appellee, v. Timothy Scott NELSON, Defendant and Appellant.

No. DA 07-0339.

Supreme Court of Montana.

Submitted on Briefs May 21, 2008.

Decided October 28, 2008.

For Appellant: Justin B. Lee, Burk, Lee & Bieler, PLLC, Choteau, Montana, Colin M. Stephens, John E. Smith Law Offices, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Tammy Plubell, Assistant Attorney General, Helena, Montana, Mary Ann Ries, Pondera County Attorney, Conrad, Montana.

For Amicus Curiae Patients and Families United and American Civil Liberties Union Foundation of Montana: Elizabeth L. Griffing, ACLU of Montana Foundation, Missoula, Montana, Craig Shannon, Patients and Families United, Missoula, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Timothy Scott Nelson (Nelson) appeals two sentencing conditions imposed on him in the District Court of the Ninth Judicial District Court, Pondera County. We reverse the imposition of the challenged sentencing conditions and remand for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Sometime in April 2006, Pondera County Deputy Sheriff Carl Suta (Deputy Suta) was contacted by a citizen informant who was known to Deputy Suta. The citizen informant stated that s/he had been at a house in Conrad, Montana, when s/he inadvertently went into a basement room containing several marijuana plants. After receiving this information, Deputy Suta and Agent Mark Hilyard (Agent Hilyard) of the Montana Department of Justice went to investigate. They observed a basement window covered with black plastic and a PVC pipe protruding from the basement, both of which indicated to Agent Hilyard the possibility that the basement was being used as a marijuana grow room.

¶ 3 On April 10, 2006, Agent Hilyard and Deputy Suta collected garbage from the residence. An examination of the garbage revealed Zig-Zag Premium Cigarette tubes, a Jiffy greenhouse expandable pellet container, a marijuana stem and burnt toothpick, and gold tinfoil that contained marijuana stems and seeds. The officers field tested these items and determined they were consistent with the use and production of marijuana plants. The garbage search also turned up mail with Nelson's name on it, and the names of two other residents of the house, Christine Hovde (Hovde) and Michelle Murray (Murray). Deputy Suta was familiar with Murray and knew that she had previously been involved with law enforcement. In December 2005, Murray had offered to provide information to a Teton County deputy about the existence of a methamphetamine lab, but later retracted her offer.

¶ 4 On April 24, 2006, Deputy Suta obtained a search warrant for the residence. A search of the house turned up evidence of a marijuana grow operation. While conducting this search, officers also found several items which suggested a possible clandestine methamphetamine lab, including a couple of cardboard boxes labeled "extra lab equipment" or "lab shit," and rubber gloves stained with iodine. Officers then stopped their search and obtained a second search warrant. As officers were leaving the house, Murray pulled into the driveway.

¶ 5 Upon conducting a search of the house pursuant to the second warrant, officers uncovered a significant amount of evidence indicating that the residents of the house were cooking methamphetamine there. Additionally, several marijuana pipes, seeds, and containers of marijuana were found in the house, along with a bottle of morphine. It was also discovered that Hovde's two school-aged children lived in the house and had access to all levels of the house, and that their clothing was mixed in with various components of the methamphetamine lab. Murray subsequently agreed to talk to the officers after being arrested and given a Miranda warning. She admitted to using marijuana, but denied any knowledge of the existence of a methamphetamine lab.

¶ 6 Based on the evidence obtained pursuant to the two searches, the Pondera County Attorney charged Nelson with the following seven counts on May 16, 2006: Count I, operation of unlawful clandestine laboratory; Count II, criminal possession of precursors to dangerous drugs; Count III, criminal possession or manufacture of dangerous drugs; Count IV, criminal endangerment; Count V, misdemeanor criminal possession of dangerous drugs; Count VI, felony criminal possession of dangerous drugs; and Count VII, criminal possession of drug paraphernalia.

¶ 7 Nelson suffers from a degenerative disc disorder and has had four surgeries on his back. These injuries were sustained by Nelson when he was thrown from a vehicle in an accident involving a drunk driver. Nelson had applied with the Montana Department of Public Health and Human Services (DPHHS) to be a qualified patient in Montana's medical marijuana program (Program) and to be entitled to the lawful use of medical marijuana. The statutes governing the Program are set forth in the Medical Marijuana Act (MMA), Title 50, chapter 46, MCA, which implements a voter initiative approved on November 2, 2004. Under the MMA, it is legal for citizens to use medical marijuana in order to treat a variety of "debilitating medical conditions," provided they have received written certification from a physician that the potential benefits of medical marijuana use would outweigh the health risks, they are accepted in the Program by DPHHS, and otherwise comply with the requirements of the MMA. Sections 50-46-102 and -103, MCA. The debilitating conditions for which medical marijuana may be used are specifically defined in the MMA as follows:

(a) cancer, glaucoma, or positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(b) a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(i) cachexia or wasting syndrome;

(ii) severe or chronic pain;

(iii) severe nausea;

(iv) seizures, including but not limited to seizures caused by epilepsy; or

(v) severe or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis or Crohn's disease; or

(c) any other medical condition or treatment for a medical condition adopted by the department by rule.

Section 50-46-102(2)(a) through (c), MCA.

¶ 8 Furthermore, the MMA specifically defines "medical use" as,

[T]he acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of marijuana to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition.

Section 50-46-102(5), MCA. Additionally, the MMA further provides as follows:

(1) A qualifying patient or caregiver who possesses a registry identification card issued pursuant to 50-46-103 may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the department of labor and industry, for the medical use of marijuana or for assisting in the medical use of marijuana if the qualifying patient or caregiver possesses marijuana not in excess of the amounts allowed in subsection (2).

(2) A qualifying patient and that qualifying patient's caregiver may not possess more than six marijuana plants and 1 ounce of usable marijuana each.

Section 50-46-201(1) and (2), MCA (emphasis added).

¶ 9 On December 8, 2006, subsequent to being charged with the drug-related counts, Nelson was accepted by DPHHS into the Program, placed on DPHHS' confidential registry, and issued an identification card indicating his participation in the Program. On February 7, 2007, Nelson entered into a plea agreement with the State. In exchange for pleading nolo contendere to Count III, criminal possession or manufacture of dangerous drugs, Nelson received a three-year deferred imposition of sentence, and the State agreed to dismiss the remaining six counts. On February 26, 2007, Nelson appeared before the District Court and formally pled no contest to the charge in Count III.

¶ 10 During the sentencing hearing, the District Court expressed concerns about Nelson's use of medical marijuana, particularly given that Nelson apparently acted as a parent to Hovde's two school-aged children. The District Court asked Nelson's attorney Justin B. Lee (Lee) how Nelson participated in the Program. Lee explained that Nelson submitted an extensive application to DPHHS describing his chronic pain condition, and that upon acceptance into the Program he was allowed to use medical marijuana under the provisions of the MMA. However, Lee explained that a physician could not actually prescribe marijuana due to federal licensing restrictions. The State offered that it had spoken to officials at the Department of Corrections, who opined that they would not allow Nelson to smoke marijuana while under their supervision, but would allow him to use the pill form of marijuana, Dronabinol, as prescribed by a physician. Lee argued that such a restriction on Nelson's use of medical marijuana would be cost prohibitive for him due to the expense of Dronabinol, and was thus contrary to the intent behind the passage of the MMA, which was to allow individuals to obtain medical relief through the use of medical marijuana in a manner that was cost-effective.

¶ 11 The District Court was unpersuaded by Lee's argument and concluded it was in the best interests of the children to restrict Nelson to the prescription pill form of marijuana during the deferred term of his sentence. The District Court acknowledged the legitimacy of the MMA, but believed that restricting Nelson's use of medical marijuana in this manner would be less intrusive to family members and help him be a better parent to the children.

¶ 12 Nelson was...