State v. Shupe, 29885–0–III.

• Citation: 289 P.3d 741
• Decision Date: 11 December 2012
• Docket Number: No. 29885–0–III.,29885–0–III.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Scott Que SHUPE, Appellant.

289 P.3d 741

STATE of Washington, Respondent,

v.Scott Que SHUPE, Appellant.

No. 29885–0–III.

Court of Appeals of Washington, Division 3.

Dec. 11, 2012.

Frank Louis Cikutovich, Stiley & Cikutovich, Spokane, WA, for Appellant.

Mark Erik Lindsey, Andrew J. Metts III, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

SWEENEY, J.

¶ 1 This appeal follows a successful prosecution for possession, possession with intent to deliver, and manufacture of marijuana. The defendant freely admitted that he possessed, delivered, and manufactured marijuana and he claimed to do so under authority of Washington's Medical Use of Marijuana Act, chapter 69.51A RCW. Neither the affidavit in support of the search warrants nor the evidence presented at trial addressed the defendant's showing that he was authorized to possess and deliver marijuana, and we therefore reverse the convictions.

FACTS

¶ 2 Scott Shupe, along with others, owned and operated a medical marijuana dispensary called “Change.” Change was located at 1514 West Northwest Boulevard in Spokane.

¶ 3 In early 2009, several detectives learned from the media that Change was selling medical marijuana. Detective Tafoya ^FN1 read in a news article that it was selling medical marijuana to patients who could lawfully possess the drug under the Medical Use of Marijuana Act. Detective Kevin Langford also saw a local newspaper advertisement for a medical marijuana dispensary named Change.

¶ 4 Several officers on the street also took notice of Change. One of these officers, Officer Gordon Grant, decided to enter Change after he smelled marijuana in Change's vicinity. He did not see any items for sale and smelled the strong odor of marijuana. Officer Robert Collins also entered Change and smelled the strong odor.

¶ 5 Detective Langford eventually got a copy of Change's business license. From that, he learned that Mr. Shupe was the chief executive officer of Change; Christopher Stevens and Noe Zarate were vice-presidents.

¶ 6 Police began conducting video surveillance of Change on May 21, 2009. They saw over 25 people come and go from Change every day. They frequently saw Mr. Shupe carrying a duffel or gym bag into and out of Change. The police also observed that three others—Christopher Stevens, Noe Zarate, and Mr. Shupe's son, Chaz Shupe—frequented Change. They saw Mr. Stevens carry a duffel bag into Change. Detective Langford later opined in an affidavit in support of a search warrant: “Scott Shupe is believed to be transporting [m]arijuana in the duffel bag that he carries into the business.” Clerk's Papers (CP) at 47.

¶ 7 In July 2009, Officer T. Douglas got some information about Change when she pulled over a car with expired license tabs. Officer Douglas smelled marijuana coming from the car and the driver explained that he possessed medical marijuana he bought at Change. He showed the officer a receipt that indicated that he bought 14 grams of “Blueberry” for $200. He also showed the officer the marijuana.

¶ 8 The officers made two other stops. They never sampled any of the marijuana discovered in those stops.

¶ 9 On August 3, the police got more information on Mr. Shupe. They got a complaint from a neighbor of 726 West Mansfield Avenue. They believed that 726 West Mansfield Avenue was Mr. Shupe's home because it was the address listed on the registration of a red Oldsmobile that they saw Mr. Shupe driving. The neighbor reported to Detective Greg Vandenberg that a marijuana plant was growing in the back yard of 726 West Mansfield Avenue. The neighbor also said that Mr. Shupe appeared to sell marijuana when the homeowner, Mr. Shupe's mother, left for work. However, the neighbor said that Mr. Shupe may not still live there.

¶ 10 On August 19, police saw Mr. Shupe leave Change and head for 726 West Mansfield Avenue. He got a light blue duffel bag out of his car and walked into the house with it.

¶ 11 On August 25, the Portland Police Department contacted Detective Langford. It reported that Mr. Shupe was found with four pounds of marijuana and $18,900 in cash. The Portland Police Department advised that Mr. Shupe said that the marijuana was medical marijuana that would be sold at Change.

¶ 12 On September 4, police saw two people come and go from 726 West Mansfield Avenue, Each visit was about 20 minutes long. Sometime after the visits, Mr. Shupe drove from 726 West Mansfield Avenue to Change. He carried a bag into Change. He returned to 726 West Mansfield Avenue a short time later.

¶ 13 On September 7, the police observed that the red Oldsmobile appeared to be broken down at 904 East Eleventh Avenue. Utility records showed that the lower unit of 904 East Eleventh Avenue was rented to Mr. Shupe and the mailbox there said “Scott Shupe.”

¶ 14 The next day, Mr. Shupe was seen riding away from 904 East Eleventh Avenue as a passenger in a car driven by Chaz Shupe. They drove to Change, went inside, and left a short time later. From there, police followed them to 726 West Mansfield Avenue, to a coffee shop downtown, and then back to 904 East Eleventh Avenue. Mr. Shupe and Chaz Shupe got out of the car and walked into the lower unit. Chaz Shupe carried a light blue duffel bag. Detective Langford said, again in the affidavit he later signed, that this was the same duffel bag that Mr. Shupe carried in and out of the shop when it is open for business.

¶ 15 Detective Langford applied for a warrant to search three addresses: 904 East Eleventh Avenue, 726 West Mansfield Avenue, and 1514 West Northwest Boulevard. His affidavit stated, in part, that in May 2009, Detective Tafoya became aware of a business selling marijuana to qualifying patients. The affidavit explained that the detective received the information from a news story on the Internet. The news report advised that Mr. Shupe dispensed marijuana and that he grew, possessed, and sold marijuana. The report stated the business was in Spokane but did not provide a location. The court issued a warrant. Chaz Shupe gave the police a key to 904 East Eleventh Avenue and police searched each address on September 10. Police arrested Mr. Shupe for delivery of a controlled substance, possession of a controlled substance with intent to deliver, and manufacture of a controlled substance.

¶ 16 Mr. Shupe pleaded not guilty and moved to suppress evidence obtained in the searches. He challenged the sufficiency of Detective Langford's affidavit because it was vague on dates, times, and specifics about the charges against Mr. Shupe for delivery of a controlled substance. The court concluded that there was probable cause for the charge of possession but thought that probable cause for delivery and intent to deliver was questionable. The court nevertheless denied Mr. Shupe's motion to suppress. The case proceeded to trial and Mr. Shupe moved to dismiss the charges after the State rested. The court denied the motion and a jury found him guilty of all three charges.

DISCUSSION

FAILURE TO LIST ASSIGNMENTS OF ERROR

¶ 17 The State first complains about Mr. Shupe's failure to set out specific assignments of error as required by court rule, RAP 10.3(a)(4). And, certainly, Mr. Shupe should follow the rules and list his assignments of error.

[1] [2] ¶ 18 But we will look past strict compliance with the rule, so long as we can identify the issues presented: “Whether or not a party sets forth assignments of error for each issue on appeal, [the] court will reach the merits if the issues are reasonably clear from the brief, the opposing party has not been prejudiced and [the] court has not been overly inconvenienced.” State v. Grimes, 92 Wash.App. 973, 978, 966 P.2d 394 (1998). Here, the parties agree on the facts, the State has not been prejudiced, and we have easily identified the issues raised by Mr. Shupe.

SUFFICIENCY OF THE AFFIDAVIT TO SUPPORT THE WARRANT

[3] [4] ¶ 19 Of course, the affidavit in support of the search warrant here must show probable cause. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). Probable cause requires that the State set “forth 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. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999). Said another way, there must be “ ‘a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.’ ” Id. (quoting State v. Goble, 88 Wash.App. 503, 509, 945 P.2d 263 (1997)).

[5] ¶ 20 We apply the Aguilar–Spinelli^FN2 test, to determine probable cause to support a search warrant based on an informant's tip. See State v. Jackson, 102 Wash.2d 432, 433, 688 P.2d 136 (1984). It requires that the State show the informant's (1) basis of knowledge and (2) veracity. Id. We will review de novo the court's legal conclusions here because the findings of fact, entered after the suppression hearing, are unchallenged. See State v. Vasquez, 109 Wash.App. 310, 318, 34 P.3d 1255 (2001), aff'd, 148 Wash.2d 303, 59 P.3d 648 (2002); see also State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003). Indeed, there are no serious factual disputes here on appeal. The State accepted Mr. Shupe's factual recitation for purposes of this appeal. Resp't's Br. at 1.

¶ 21 The State contends (apparently) that Mr. Shupe's objections to the search warrant for 726 West Mansfield Avenue and 904 East Eleventh Avenue are of no moment because Mr. Shupe admitted that he was guilty of the crimes charged. Resp't's Br. at 7. The State relies on Mr. Shupe's closing argument: “Mr. Shupe admits he possessed marijuana. Mr. Shupe admits he delivered marijuana. Mr. Shupe admits he manufactured it.” Report of Proceedings (RP) at 552. The State's contention misses Mr. Shupe's essential point, which as we understand it, is that he possessed, sold and manufactured marijuana legally—that is as medical marijuana. Indeed, the State saw ...