                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            April 26, 2016
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 46304-1-II

                  Appellant/Cross Respondent,                   UNPUBLISHED OPINION

          v.

    ALFRED BURTON,

                  Respondent/Cross Appellant.

         BJORGEN, C.J. — The State appeals the trial court’s suppression of evidence and resulting

dismissal of its charges against Alfred Burton for possession of marijuana with intent to deliver.

It contends that the trial court erred as a matter of law by suppressing the fruits of a search of

Burton’s medical marijuana collective garden storefront on grounds that the search warrant was

not supported by probable cause. The State also argues that the trial court erred by interpreting

the Medical Use of Cannabis Act (MUCA)1 as effectively decriminalizing possession of

marijuana for qualifying collective gardens. The Supreme Court’s holding in State v. Reis, 183

Wn.2d 197, 351 P.3d 127 (2015), compels our agreement with the State. Therefore, we hold that

the trial court erred in suppressing evidence and dismissing the charges against Burton.

         Burton also cross appeals, arguing that the trial court erred by denying his motion to

strike several statements from the affidavit of probable cause following a Franks2 hearing on




1
    Ch. 69.51A RCW.
2
    Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
No. 46304-1-II


grounds that they were deliberately or recklessly inaccurate. Because the statements were

ultimately immaterial, we hold that the trial court did not err.

       Accordingly, we reverse the trial court’s suppression ruling and dismissal and remand for

further proceedings.

                                               FACTS

       Burton was an owner of Green Path of Washington, a medical marijuana collective

garden with a storefront in Graham. Green Path had a revolving membership whereby medical

marijuana patients joined the collective when they signed in after entering the storefront and

relinquished their membership when signing out before exiting. Marijuana was grown off site

but distributed at the storefront. Burton kept each patient’s qualification documentation on hand

in two black folders at the storefront.

       In April 2012, two sheriff’s deputies entered Green Path and spoke with Burton. The

deputies asked to see Green Path’s member documentation, but Burton refused to let them see

the documents without the collective’s attorney present. Burton explained to the deputies how

Green Path operated, and also told them that there were several strains of marijuana currently

available at the storefront. The deputies later obtained a warrant to search the premises based on

an affidavit declaring the basis for their probable cause to suspect that Burton possessed

marijuana at the Green Path storefront with the intent to deliver.

       The deputies searched the storefront and found 995.3 grams of processed marijuana, but

did not find any patient records. The State charged Burton with possession of marijuana with

intent to deliver, a violation of Washington’s Uniform Controlled Substances Act, chapter 69.50




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No. 46304-1-II


RCW. Burton moved for a Franks hearing, redaction of claimed misrepresentations in the

affidavit, and suppression of the evidence found during the resulting search.

       In his motion for a Franks hearing, Burton challenged some of the information in the

probable cause affidavit: (1) numerous references to Green Path as a “store” or “business,” and

to its members as “customers,” (2) omission of a witness and attribution to Burton of that

witness’s oral statements, and (3) the statement that “[t]he lobby of the building smelled strongly

of marijuana.” Clerk’s Papers (CP) at 5-8 (emphasis omitted). The trial court granted the

Franks hearing, and both parties presented evidence relating to the accuracy of the probable

cause affidavit.

       Following the Franks hearing, the trial court denied Burton’s motion to redact. The trial

court did not find the use of the commercial terminology problematic, as it used the same

terminology in its order, and commented that “‘business’ to this Court doesn’t necessarily imply

a retail operation.” Report of Proceedings (RP) at 102. The trial court found that the statement

that the deputies smelled marijuana was inaccurate and that the omitted witness was present

when the deputies spoke with Burton and may have made statements attributed to Burton.

However, the trial court concluded that these misrepresentations were neither deliberate nor

reckless and declined to strike the related statements.

       Despite denying Burton's motion to redact, the trial court suppressed the fruits of the search

on the basis of an insufficient showing of probable cause after it interpreted MUCA as

decriminalizing qualifying operations by a collective garden.          Specifically, former RCW

69.51A.085 (2011) provided that “[q]ualifying patients may create and participate in collective

gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical


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No. 46304-1-II


use,” subject to compliance with a list of conditions. The trial court ruled that compliance with

the conditions listed in former RCW 69.51A.085 rendered otherwise unlawful possession lawful.

Because the affidavit did not indicate that a quantity of marijuana in excess of the authorized 24-

72 ounces was present at the Green Path storefront and did not establish that Green Path lacked

qualifying members or the necessary documentation, it ruled that probable cause did not support

the search warrant and suppressed the evidence discovered during the search.

       With the evidence necessary for conviction suppressed, the trial court dismissed the case.

The State appeals the trial court’s suppression ruling, and Burton cross appeals the trial court’s

denial of his motion to redact portions of the probable cause affidavit.

                                            ANALYSIS

               I. PROBABLE CAUSE: MEDICAL MARIJUANA AFFIRMATIVE DEFENSE

       The State argues that the trial court erred in suppressing the fruits of the search on the

grounds that the police did not establish probable cause to suspect criminal activity. The State

bases this argument on its interpretation of MUCA under which possession with the intent to

deliver would remain criminal. In the State’s view, the claim that possession for delivery to

qualified medical patients was authorized by MUCA could only be raised as an affirmative

defense. Because our Supreme Court has endorsed this interpretation, we agree with the State

and hold that the trial court erred by suppressing the fruits of the search.

       In Reis, our Supreme Court interpreted the 2011 amendments to MUCA to determine

whether they decriminalized possession for medical distribution. 183 Wn.2d 197. The court

held that despite statutory language indicating a legislative intent to decriminalize such

possession, the amended statutes actually provided only for an affirmative defense. Id. at 207. It


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No. 46304-1-II


reasoned that because the statutory language as enacted decriminalized possession only for

qualified patients and providers whose names appear on a nonexistent state registry, all current

patients and providers could only avail themselves of a separately provided affirmative defense

to any criminal charges. Id. at 214-15.3 The court also indicated that the possibility a person

will successfully assert the affirmative defense does not negate probable cause to search

locations where the police suspect a provider is keeping marijuana for distribution. Id. at 218.

          Reis controls our decision. Under Reis, the trial court erred by suppressing evidence of

the search on grounds that possession of medical marijuana had been decriminalized for

providers complying with the requirements of MUCA.4 As the appellant in Reis conceded, the

presence of the affirmative defense does not negate probable cause for a search. Id. at 218; see

also State v. Fry, 168 Wn.2d 1, 8, 228 P.3d 1 (2010) (holding that under the previous medical

marijuana statutes, the existence of an applicable affirmative defense did not negate probable

cause).

          Burton argues that even as an affirmative defense, compliance with the community

garden provisions of MUCA renders lawful otherwise unlawful possession with intent to deliver.

He directs our attention to McBride v. Walla Walla County, 95 Wn. App. 33, 975 P.2d 1029

(1999), in which Division Three of our court addressed, in the context of a civil suit for false



3
  Governor Gregoire vetoed a provision establishing a state registry for qualified patients and
their providers. Reis, 183 Wn.2d at 201. Because MUCA as amended and currently codified
decriminalizes possession of marijuana only for providers who are listed on that registry, our
Supreme Court determined that there is currently no way to qualify for decriminalized
possession for distribution to qualified patients. Id. at 207.
4
 We recognize that the trial court did not have the benefit of the Supreme Court’s holding in
Reis when it made its suppression ruling.

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No. 46304-1-II


arrest, whether the availability of an affirmative defense can negate probable cause. The court in

McBride held that

       [s]elf-defense is an affirmative defense which can be asserted to render an
       otherwise unlawful act lawful. But the arresting officer does not make this
       determination. The officer is not judge or jury; he does not decide if the legal
       standard for self-defense is met.

Id. at 40. Burton relies primarily on the statement that an affirmative defense may “render an

otherwise unlawful act lawful.” See Br. of Resp’t at 31-32 (emphasis omitted). The court in

McBride, however, clearly explained that “[t]he self-defense claim did not vitiate probable

cause.” Id. Our Supreme Court further clarified this matter in Fry, discussing McBride and

stating that “[a]n affirmative defense does not per se legalize an activity and does not negate

probable cause that a crime has been committed.” 168 Wn.2d at 10. McBride does not support

Burton’s argument, and the availability of an affirmative defense does not negate probable cause.

                          II. DENIAL OF BURTON’S MOTION TO REDACT

       In his cross appeal, Burton claims that the trial court erred by denying his motion to

redact certain statements in the probable cause affidavit because they constituted deliberate

misrepresentations or reckless misstatements of fact. We disagree, because even if the trial court

had granted the motion, the affidavit would still have supported a finding of probable cause.

       Where a law enforcement officer deliberately or recklessly omits material facts or

includes material misstatements of fact in a probable cause affidavit, a court may invalidate any

search warrant issued on the basis of the affidavit. State v. Ollivier, 178 Wn.2d 813, 847, 312

P.3d 1 (2013), cert. denied, 135 S. Ct. 72 (2014). If a defendant makes “a substantial

preliminary showing of such a material misrepresentation or omission,” he is entitled to a Franks

hearing at which he may produce evidence showing the misrepresentation. Id. The trial court

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No. 46304-1-II


must determine whether the evidence supports the information in the affidavit, then assess the

validity of the warrant on the basis of only the qualifying information. Id.

       We review the trial court’s findings following a Franks hearing to determine whether

they are supported by substantial evidence, State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58

(2002), but review de novo the trial court’s legal determination that the qualifying information

shows probable cause. Ollivier, 178 Wn.2d at 848.

       In light of Reis, the inaccuracies in the affidavit that Burton challenged were immaterial

and therefore need not have been stricken. Burton contested the accuracy of references to Green

Path as a commercial enterprise rather than a collective garden and statements regarding whether

Burton was a qualified patient under MUCA. He asserts that these were material facts because

they showed that Burton’s activities were lawful and thereby negated probable cause for a search

warrant. Under Reis, however, MUCA only provides an affirmative defense, which cannot

negate probable cause to suspect a violation of the Uniform Controlled Substances Act. 183

Wn.2d at 218.

       Burton also challenged the statement that the Green Path storefront lobby smelled

strongly of marijuana. The trial court actually agreed that the statement was inaccurate, finding

that the deputies “could not see or smell growing marijuana.” CP at 29; RP at 44-45. Whether

the deputies smelled marijuana, though, was immaterial because the trial court found that Burton

told them that the premises were generally used for storing and distributing marijuana. See State

v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003); cf. State v. Olson, 73 Wn. App. 348, 357,

869 P.2d 110 (1994). Because such possession and distribution is unlawful subject only to an

affirmative defense, this information gave the deputies probable cause to search the premises.


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No. 46304-1-II


                                         CONCLUSION

        Reis demands the conclusion that probable cause to suspect that a provider is violating

the Uniform Controlled Substances Act is a valid basis for a search warrant, regardless of

whether the provider complies with MUCA. Therefore, the trial court erred in suppressing the

fruits of the search and dismissing the case. Because the claimed misrepresentations in the

probable cause affidavit were immaterial, the trial court did not err by denying Burton’s motion

to redact. Accordingly, we reverse the trial court’s suppression of the evidence and its dismissal

and remand for further proceedings.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    BJORGEN, C.J.
 We concur:



 MAXA, J.




 MELNICK, J.




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