State v. Reis

• Decision Date: 31 March 2014
• Docket Number: No. 69911–3–I.,69911–3–I.
• Citation: 180 Wash.App. 438,322 P.3d 1238
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. William Michael REIS, Petitioner.

180 Wash.App. 438

322 P.3d 1238

STATE of Washington, Respondent,

v.William Michael REIS, Petitioner.

No. 69911–3–I.

Court of Appeals of Washington,

Division 1.

March 31, 2014.

Kurt Edward Boehl, Stephanie Joanna Boehl, Law Office of Kurt E. Boehl, PLLC, Seattle, WA, for Petitioner.

Prosecuting Atty King County, James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

Robin Allister Romanovich, Attorney at Law, Seattle, WA, for Other Parties.

PUBLISHED OPINION

SPEARMAN, A.C.J.

¶ 1 William Reis was charged with manufacturing a controlled substance in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, after a search of his residence pursuant to a warrant revealed evidence of a marijuana growing operation. The trial court denied his motion to suppress the evidence. The issue on discretionary review is whether, following the 2011 amendments to the Medical Use of Cannabis Act, chapter 69.51A RCW, a search warrant must be based on probable cause of a violation of medical marijuana laws.¹ We conclude that “qualifying patients” and “designated providers” under the Act are able to assert only an affirmative defense at trial to a charge of a violation of marijuana laws. The search warrant here was supported by probable cause where it was based on evidence of a marijuana growing operation. We affirm.

FACTS

¶ 2 On May 15, 2012, King County Sheriff's Detective Thomas Calabrese sought a search warrant for William Reis's residence in Burien. Calabrese's affidavit contained the following information. After receiving an anonymous tip that a person named “William” was growing marijuana in the Shorewood area of Burien, Calabrese drove through Shorewood and observed marijuana plants on the back deck of Reis's home. He saw a man transferring the plants from smaller pots to larger ones. From the vantage point of a neighboring property, Calabrese saw black plastic covering one of the basement windows of Reis's home and condensation on that window, which was slightly open. He heard a distinct humming sound coming from the northwest side of the home. Based on his training and experience, Calabrese concluded that these were indications marijuana was being grown indoors. He ran the license plate of the car in the home's driveway and learned it was registered to William Reis. He learned that Reis had been arrested in 2005 and been charged with violation of the Uniformed Controlled Substances Act (VUCSA) and violation of the Uniformed Firearms Act (VUFA) after a search of the same house revealed a marijuana-growing operation in the basement. He also learned that Reis was found in possession of 1.3 grams of marijuana during a 2011 traffic stop. A booking photo of Reis matched the appearance of the man Calabrese had seen tending to the marijuana plants on the deck. Calabrese then attempted to contact Reis's neighbors to inquire about unusual short traffic stays or circumstances around the home that would indicate a drug-dealing operation. The neighbors refused to speak to Calabrese, other than to state that they were fearful of Reis. On a later date, Calabrese drove by Reis's home and again saw marijuana plants on the back deck.

¶ 3 The district court concluded there was probable cause to believe a violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, had been committed and issued a search warrant. The search warrant was served on May 21, 2012. Officers seized six mature cannabis plants from Reis's back deck. From inside the home, they seized 31 juvenile cannabis plants and roughly 13 pounds of cannabis. Officers also found a digital scale, high-intensity grow lights, a ledger, receipts for marijuana sales, and a bill of sale from “Chronic LLC.” Clerk's Papers at 4–5, 33.

¶ 4 Reis was charged with a violation of the Uniform Controlled Substances Act, manufacturing of marijuana, during a period of time intervening between April 29, 2012 and May 21, 2012.² Reis moved to suppress the evidence found in his home, arguing that the search warrant was not supported by probable cause. The trial court denied his motion.³ Reis sought discretionary review, which this court granted.⁴

DISCUSSION

¶ 5 This court reviews conclusions of law in an order pertaining to suppression of evidence de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

¶ 6 A search warrant may be issued only upon a determination of probable cause. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). Probable cause requires “ ‘facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched.’ ” State v. Shupe, 172 Wash.App. 341, 348, 289 P.3d 741 (2012) (quoting State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999)), rev. denied,177 Wash.2d 1010, 302 P.3d 180 (2013). In reviewing the issuance of a search warrant, the court is limited to the information contained within the affidavit supporting probable cause. State v. Neth, 165 Wash.2d 177, 182, 196 P.3d 658 (2008).

¶ 7 Whether the search warrant in this case was supported by probable cause involves the interpretation of RCW 69.51A.040. This court's purpose when interpreting a statute is to enforce the intent of the legislature. Rental Housing Ass'n of Puget Sound v. City of Des Moines, 165 Wash.2d 525, 536, 199 P.3d 393 (2009). If the plain language of the statute is unambiguous, this court's inquiry ends and the statute is enforced “in accordance with its plain meaning.” State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007). Under the “plain meaning rule,” this court examines the statutory scheme as a whole, considering the language of the statute, related statutes, and other provisions of the same act. City of Seattle v. Allison, 148 Wash.2d 75, 81, 59 P.3d 85 (2002). This court attempts to interpret statutes to give effect to all language in the statute and to render no portion meaningless or superfluous. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). If the statute is subject to more than one reasonable interpretation, it is ambiguous, and the court may resort to aids of statutory construction, including examining legislative history. state v. Slattum, 173 Wash.App. 640, 649, 295 P.3d 788,rev. denied,178 Wash.2d 1010, 308 P.3d 643 (2013).

¶ 8 Initially, a brief discussion of relevant Washington marijuana laws is useful. Following the state legislature's 1971 passage of the Uniform Controlled Substances Act, codified as chapter 69.50 RCW, marijuana has been a Schedule I controlled substance. RCW 69.50.204(c)(22). The possession, manufacture, and delivery of marijuana is generally prohibited under Washington law.⁵SeeRCW 69.50.401–.445 (establishing offenses and penalties). In 1998, however, Washington citizens enacted Initiative 692, codified as chapter 69.51A RCW.⁶ The purpose of the Washington State Medical Use of Cannabis Act (MUCA) was to allow certain individuals suffering from terminal or debilitating medical conditions to use marijuana medicinally. RCW 69.51A.005. The MUCA provided patients and caregivers who met certain requirements an affirmative defense:

If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.

Former RCW 69.51A.040(1) (1999). The statute was amended in 2007 but continued to provide for an affirmative defense to qualifying patients or designated providers charged with a violation of state laws relating to marijuana. Laws of 2007, ch. 371, § 5; former RCW 69.51A.040(2) (2010).

¶ 9 In State v. Fry, 168 Wash.2d 1, 5, 228 P.3d 1 (2010), the Washington Supreme Court considered whether a search warrant was supported by probable cause where police officers were informed that marijuana was being grown at a certain residence and smelled marijuana upon arrival but the defendant, Fry, presented a purported medical authorization form for marijuana. Fry argued that probable cause to search was negated when he produced the authorization. Id. at 3–4, 6, 228 P.3d 1. A plurality of the Court,⁷ observing that RCW 69.51A.040 established an affirmative defense against marijuana charges, concluded that the presentment of a person's purported authorization for medical marijuana was a requirement for the affirmative defense but nonetheless did not negate probable cause for a search.⁸Id. at 7–10, 228 P.3d 1. The plurality explained:

As an affirmative defense, the [medical marijuana] defense does not eliminate probable cause where a trained officer detects the odor of marijuana. A doctor's authorization does not indicate that the presenter is totally complying with the Act: e.g., the amounts may be excessive. An affirmative defense does not per se legalize an activity and does not negate probable cause that a crime has been committed.

Id. at 10, 228 P.3d 1.

¶ 10 In 2011, the legislature made amendments to the MUCA. Laws of 2011, ch. 181. The legislature's intent, in part, was to protect qualifying patients from arrest, prosecution, criminal sanctions, and civil consequences based solely on their medical use of marijuana and to protect designated providersfrom the same consequences based solely on their assistance with the medical use of marijuana. Laws of 2011, ch. 181, § 102, ...