                                                                          FILED 

                                                                        JULY 3, 2014 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )        No. 31561-4-111
                    Appellant,               )
                                             )
      v.                                     )
                                             )
MARC EUGENE REED,                            )        UNPUBLISHED OPINION
                                             )
                    Respondent.              )

      SIDDOWAY, C.J.      The superior court dismissed the State's charges that Marc

Eugene Reed unlawfully possessed and manufactured marijuana, after concluding that its

search warrant was not supported by probable cause. In reaching that conclusion, it

relied upon the decision of a federal district court in Eastern Washington whose

reasoning we recently rejected in State v. Ellis, 178 Wn. App. 801, 2014 WL 2118650,

review denied, No. 89928-2 (Wash. June 6,2014). Consistent with our decision in Ellis,

we now reverse and remand for trial.

                    FACTS AND PROCEDURAL BACKGROUND

      Detective Jerry Hensley was told by a confidential informant about a marijuana

grow operation that the informant had seen in a white garage behind a home on North

WaInut Street in Spokane. The detective traveled to the home; saw the garage; and

noticed that-while the temperature outside was approximately 29 degrees Fahrenheit­
No. 31561-4-111
State v. Reed


this particular garage, unlike others in the area, had no frost on its roof or icicles hanging

from the roofline. Suspecting that the absence of frost and icicles was due to heat

generated by a grow operation, he contacted A vista Utilities and obtained power

consumption records for the address. The records showed a large and growing increase

in electrical consumption that had begun earlier in the year. When the detective returned

to the home again after obtaining the power consumption records, he could smell the odor

of growing marijuana from the public alley, within five feet of the garage. He again

observed the absence of frost or icicles on the garage roof.

       That same day, he applied for and obtained a search warrant for the home and

outbuildings. Police executed the search warrant and discovered a marijuana grow

operation with packaged marijuana, scales, and U.S. currency. Detective Hensley

arrested Mr. Reed, the owner of the home. After being informed of his constitutional

rights, Mr. Reed waived his rights and told the detective that he was growing marijuana

for his personal use and to sell as an income supplement. The State thereafter charged

Mr. Reed with manufacture of a controlled substance and possession of a controlled

substance with intent to deliver.

       Mr. Reed moved to suppress evidence of the grow operation and to dismiss the

charges. He argued that the search warrant failed to allege that a crime had been

committed because the affidavit did not allege that the marijuana was being grown in

violation of Washington's medical marijuana statutes. The primary basis for this motion

                                              2

1
J
·1

1    No. 31561-4-111
     State v. Reed


     was a ruling from the United States District Court for the Eastern District of Washington 1

     that, following the state decriminalization of medical marijuana, search warrant affidavits

     must establish a probable violation of Washington's medical marijuana statutes.

            The superior court was persuaded by the federal ruling, concluding in part

     that

            [i]f [the search warrant] affidavit were presented to a magistrate prior to the
            2011 amendments ofRCW 69.51A, there would be sufficient probable
            cause to issue a search warrant. However, since the 2011 amendments, an
            affidavit for a search warrant must set forth facts showing the probability
            that the defendant is manufacturing marijuana, and is doing so in violation
            of the medical marijuana laws.

     Clerk's Papers at 49. The superior court suppressed the marijuana as the fruit of an

     unlawful search and seizure, and dismissed the charges for lack of evidence. The State

     appeals.

                                             ANALYSIS

            This case presents a single question of law for review: Do the 2011 amendments

     to Washington's medical marijuana statutes, which decriminalized the medical use of

     marijuana, require law enforcement officers to allege a violation of the medical marijuana

     statutes in order to establish probable cause that a crime has been committed?




            1 The unpublished decision relied upon by the trial court was United States v.
     Kynaston, No. CR-12-0016-WFN, 2012 WL 2117635 (E.D. Wash.), rev'd, 534 F. App'x
     624 (9th Cir. 2013), cert denied, 134 S. Ct. 1779 (2014).

                                                   3
No. 31561-4-111
State v. Reed


       At oral argument, both sides agreed that our recent decision in Ellis controls the

outcome of this appeal. In Ellis, we noted that the Uniform Controlled Substances Act

(UCSA), chapter 69.50 RCW, generally criminalizes all possession and manufacture of

marijuana, while the Washington State Medical Use of Cannabis Act (MUCA), chapter

69.51A RCW, decriminalizes the same thing if certain requirements are met. 178 Wn.

App. at 806. Interpreting these two acts together and looking at the MUCA's legislative

history, we concluded that "the MUCA exception applies to marijuana-based arrests,

prosecutions, and criminal sanctions, but not searches." Id. at 807. We then held that a

search warrant affidavit only needs to establish probable cause to believe that a suspect

violated the UCSA, and does not need to also establish the suspect's noncompliance with

the MUCA. Id. at 807-08. We also expressly disagreed with the federal trial court

decision, subsequently reversed by the Ninth Circuit, that Mr. Reed successfully had

relied upon in the trial court. Id.

       Adhering to Ellis, we hold that the lower court erred as a matter of law when it

granted Mr. Reed's motions to suppress the marijuana and dismiss the charges.

Accordingly, we reverse and remand for further proceedings.

       A majority of the panel has determined that this opinion will not be printed in the




                                             4

No. 31561-4-111
State v. Reed


Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.



                                            Sidd~1 Lft
1 CONCUR:




                                           5

                                       No. 31561-4-III



         FEARING, J. (concurring) -   I concur based upon my concurring opinion in State v.

Ellis, 178 Wn. App. 801,2014 WL 2118650, review denied, No. 89928-2 (Wash. June 6,

2014).




                                                         J-~ 3­
                                                  Fearing, J.    d)
