                                                                                                   OF APPEALS
                                                                                                DIVISION 11

                                                                                     2214 JUL 15       AM lO: 145

                                                                                                       5 !;   ON
    IN THE COURT OF APPEALS OF THE STATE OF WASHI U1
                                                                                         f' i

                                           DIVISION II                                           PEP

                                                                                                        5


STATE OF WASHINGTON,                                                  No. 44549 -2 -II


                                 Respondent,


       v.




JONATHAN W. BROOKS,                                            UNPUBLISHED OPINION


                                 Appellant.


           WORSWICK, J. —    Jonathan Brooks appeals his convictions and sentence for manufacture

of a controlled substance, unlawful possession of a controlled substance, and two counts of bail

jumping. Brooks argues that ( 1) the trial court erred by denying his motion to suppress evidence

found during a search of his property because the search warrant lacked the support of probable

cause, (   2) Brooks received ineffective assistance of counsel at sentencing, and ( 3) the sentencing

court erroneously imposed a community custody condition. We hold that probable cause

supported the search warrant and the sentencing issues are moot. We affirm.

                                                 FACTS


           In March 2012, the West Sound Narcotic Taskforce received an anonymous tip regarding

a possible marijuana grow operation located inside a single -wide mobile home in Tahuya, Mason

County. The tipster reported that the odor of marijuana emanated from the home and that the

windows were covered with Styrofoam. Through a search of public records, police officers


learned that Brooks lived in the mobile home and that he had been convicted of a drug felony in

Idaho in 2008.
No. 44549 -2 -II



        After receiving the tip, Trooper Ryan Los and Detective Tasesa Maiava went to the

mobile home to conduct a " knock and talk" operation. Second Suppl. Clerk' s Papers at 4.

Although Trooper Los did not detect an odor from the driveway, as he approached the mobile

home he smelled the obvious odor of growing marijuana, which he had been trained to identify.

He observed that the mobile home' s windows were covered with pink Styrofoam insulation and


plastic sheathing. He further heard the hum of fans and ballasts coming from inside the mobile

home.


        No one answered when the officers knocked on the door. But the officers contacted a

neighbor who owned the mobile home and rented it to Brooks. The neighbor told the officers he

did not know if Brooks had medical authorization to possess or grow marijuana.

        Trooper Los applied for a search warrant based on his observations and his knowledge

from training and experience that marijuana grow operations often employed insulation, window

coverings, fans, and ballasts. A superior court judge issued the warrant authorizing a search of

the mobile home for evidence of violations of the Uniform Controlled Substances Act, chapter

69. 50 RCW.


        The officers executed the search warrant the following day. Brooks was present at the

time of this search, and he displayed a card showing that he was an authorized medical marijuana

user. Nonetheless, the officers searched the mobile home and found approximately 90 marijuana

plants inside.


        While executing the warrant, Detective Maiava also noticed a small detached shed on the

property. From outside the shed, Detective Maiava, who was trained to recognize the smell of

marijuana and the methods of growing marijuana, heard a humming sound consistent with fans



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No. 44549 - -II
          2



and ballasts. He also smelled the odor of growing marijuana coming from a vent attached to the

shed.




        By telephone, Detective Maiava requested the expansion of the search warrant to include

the detached   shed.'   The superior court judge granted this request.


        The officers found more plants inside the shed. The officers found a total of 111


marijuana plants on Brooks' s property.

        By second amended information, the State charged Brooks with five counts: manufacture

of a controlled substance, marijuana; unlawful possession of a controlled substance, marijuana;


possession with intent to manufacture or deliver a controlled substance, marijuana; and two


counts of bail jumping. The trial court refused to allow Brooks to raise his medical marijuana

authorization as a defense because he exceeded the maximum number of plants that a medical

                                   2
marijuana user    may   possess.




        Before trial, Brooks moved to suppress the evidence obtained during the search on the

ground that the search warrant lacked the support of probable cause. The trial court denied this

motion and Brooks' s subsequent motion to reconsider.




1 Detective Maiava did not inform the superior court judge that Brooks had presented a medical
marijuana card.




2 Brooks asserts that the trial court also based its ruling on its erroneous belief that Brooks' s
medical marijuana authorization card would be inadmissible hearsay. But the trial court assumed
for the sake of argument that the card would be admissible. Regardless, the trial court ruled that
the excessive number of plants prevented Brooks from making a prima facie showing of the
medical marijuana defense. Brooks does not challenge this ruling.




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       At the end of trial, a jury convicted Brooks of manufacture of a controlled substance,

unlawful possession of a controlled substance, and both counts of bail jumping. But the jury

acquitted Brooks of possession with intent to manufacture or deliver a controlled substance.


       At sentencing, Brooks' s attorney did not argue that any of Brooks' s convictions

constituted the same criminal conduct. Accordingly, in calculating Brooks' s offender score, the

trial court did not treat any of his convictions as the same criminal conduct. Brooks was

sentenced on each conviction to a standard range sentence of 13 months, to be served


concurrently.


       The trial court further ordered a 12 -month term of community custody, subject to various

conditions. One condition prohibited Brooks from consuming or possessing alcohol.

        Brooks appeals.


                                                ANALYSIS


                      I. PROBABLE CAUSE SUPPORTING SEARCH WARRANT


        Brooks first argues that his convictions for manufacture of a controlled substance and


possession of a controlled substance should be reversed because the trial court erred by denying

his motion to suppress evidence seized under a warrant issued without probable cause. We

disagree.


        Both the Fourth Amendment and article I, section 7 of the Washington Constitution

prohibit unreasonable searches.   State   v.   Patterson, 83 Wn.2d 49, 52, 515 P. 2d 496 ( 1973).   But


when a search is conducted pursuant to a valid warrant based on probable cause, the search is

reasonable and therefore constitutional. Patterson, 83 Wn.2d at 52.




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         Two different standards govern our review of a probable cause determination. State v.


Emery,     161 Wn.   App.   172, 201, 253 P. 3d 413 ( 2011), aff'd, 174 Wn.2d 741 ( 2012). First, we


review a magistrate' s findings of "the ` historical facts' in the case, i.e., the events ` leading up to

the stop   or search, '   for an abuse of discretion, giving due deference to the magistrate. In re Det.

of Petersen, 145 Wn.2d 789, 799 -800, 42 P. 3d 952 ( 2002) ( quoting              Ornelas v. United States, 517

U. S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 ( 1996)).           Second, we review de novo the trial


court' s legal conclusion that the facts establish probable cause. State v. Chamberlin, 161 Wn.2d

30, 40, 162 P. 3d 389 ( 2007).     Here, because Brooks challenges only the legal conclusion that

probable cause supported the search warrant, we apply the second standard.


           In reviewing this legal conclusion, we consider only the information presented to the

magistrate in support of the warrant application. State v. Murray, 110 Wn.2d 706, 709 -10, 757

P. 2d 487 ( 1988).    Probable cause exists when the supporting facts establish a reasonable

inference that evidence of criminal activity can be found at the place to be searched. State v.

Maddox, 152 Wn.2d 499, 505, 98 P. 3d 1199 ( 2004). But the probable cause standard does not


require a prima    facie showing    of criminal   activity. Maddox, 152 Wn.2d           at   505. Further, the


availability of an affirmative defense does not vitiate the existence of probable cause. State v.

Fry,   168 Wn.2d 1, 8, 228 P. 3d 1 ( 2010) ( lead    opinion) (   citing McBride v. Walla Walla County,

95 Wn. App. 33, 39 -40, 975 P. 2d 1029, 990 P. 2d 967 ( 1999)).

           In Fry, our Supreme Court considered whether a former version of the Medical Use of

Cannabis Act, chapter 69. 51A RCW, added to the showing necessary to establish probable cause

of unlawful marijuana possession.        168 Wn.2d    at   5 - 10 ( lead   opinion).   In former RCW

69. 51A. 040( 1) ( 1999), the legislature established an affirmative defense to marijuana -
                                                                                          related




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No. 44549 -2 -II



charges; this defense was available to a qualifying patient or caregiver who complied with the

Act' s requirements. See Fry, 168 Wn.2d at 7. But Fry' s lead opinion, signed by four justices,

reasoned that the legislature did not alter the showing needed to establish probable cause by

creating this affirmative defense. Fry, 168 Wn.2d at 10. Thus the Fry court affirmed the denial

of   the defendant' s   motion   to   suppress evidence obtained pursuant          to the   search warrant.   3 168

Wn.2d at 3, 10.


          After Fry was decided, the legislature substantially amended the Medical Use of

Cannabis Act. LAWS        of   2011,    ch.   181.   As currently   written,   RCW 69. 51A. 040 declares, " The


medical use of cannabis in accordance with the terms and conditions of this chapter does not

constitute a crime .. "      4 The legislature further declared,

          Nothing in this chapter or in the rules adopted to implement it precludes a
          qualifying patient or designated provider from engaging in the private, unlicensed,
          noncommercial production, possession, transportation, delivery, or administration
          of cannabis for medical use as authorized under RCW 69. 51A.040.

3
    As to this issue, four   other    justices "   concur[ red] with   the lead opinion in result only."      Fry, 168
Wn.2d     at   20 ( Chambers, J., concurring). The lone dissenter would have held that the warrant
lacked the support of probable cause. Fry, 168 Wn.2d at 23 ( Sanders, J., dissenting).
4
 RCW 69. 51A.040 further states that a medical marijuana patient or provider " may not be
arrested, prosecuted, or subject to other criminal sanctions or civil consequences" if ( the use,
                                                                                       1)
manufacture, or possession of marijuana complies with the requirements of chapter 69. 51A
RCW and (2) the patient or provider, inter alia, presents proof of registration as a medical
marijuana patient or provider. Here, Brooks concedes that he had more marijuana plants than
chapter 69. 51A RCW allows, but he claims that this fact was unknown to the magistrate at the
time the warrant was authorized. However, the governor vetoed sections of the 2011 bill that
would have established a registry of patients and providers. LAWS OF 2011, ch. 181, governor' s
veto message at 1374 -75. Because no registry exists, RCW 69. 51A.040 does not offer protection

from    all criminal or civil consequences of marijuana possession.                  Wn. App.
                                                                                   State    v.   Reis,

     322 P. 3d 1238, 1246 ( 2014), petition for review filed, No. 90281 -0 ( Wash. May 27, 2014).
But unregistered patients and providers have an affirmative defense under RCW 69. 51A.043.
Reis, 322 P. 3d at 1245.




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No. 44549 -2 -II




RCW 69. 51A.025.


          Brooks asserts that the statutory amendments buttressed the affirmative defense with " an

explicit exception        to the    general prohibition on possession of controlled substances."         Br. of


Appellant at 9. But Divisions One and Three of this court have recently considered the amended

statute and decided that it continues to merely provide an affirmative defense to marijuana -

related crimes.        State   v.   Reis,       Wn.    App. ,       322 P. 3d 1238, 1244 ( 2014), petition for review


filed, No. 90281 -0 ( Wash. May 27, 2014);                   State v. Ellis, 178 Wn. App. 801, 806, 315 P. 3d 1170

 2014),   review       denied, No. 89928 -2 ( Wash. June 6, 2014).            We follow those decisions. 5

          Given Fry' s holding that the availability of an affirmative defense cannot vitiate probable

cause, we hold that the State may obtain a search warrant without excluding the possibility that

marijuana is lawfully possessed under chapter 69. 51A RCW. Reis, 322 P. 3d at 1246; accord

Ellis, 178 Wn. App. at 807. Thus we reject Brooks' s assertion that, to establish probable cause,

the supporting affidavit must show that the cultivation of marijuana was not lawful under chapter
                   6
69. 51A RCW.


          As Brooks concedes, the police officers' sworn statements established probable cause to


believe that marijuana was being grown inside the mobile home and detached shed. The police


5
    In his reply brief, Brooks         cites   State   v.   Kurtz, 178 Wn.2d 466, 476, 309 P. 3d 472 ( 2013),   and


asserts that the statutory amendments " made marijuana use under the Act `legal' rather than
merely providing an affirmative defense." Reply Br. of Brooks at 1 - 2. But Kurtz cannot be read
to stand for this proposition. Reis, 322 P. 3d at 1245.


6 We also reject Brooks' s assertion that, to the extent RCW 69. 51A.040 is ambiguous, it should
be interpreted in his favor. Because RCW 69. 51A.040 is not ambiguous, the rule of lenity does
not apply here. Reis, 322 P. 3d 1245 -46.




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No. 44549 -2 -II



officers corroborated the anonymous tipster' s allegations that the odor of growing marijuana

emanated from Brooks' s mobile home and that Styrofoam covered its windows. They further

heard the sound of fans and ballasts coming from inside the mobile home and detached shed,

which also emitted the odor of marijuana. From their training and experience, the officers knew

that these observations likely were signs of a marijuana grow operation. Thus the trial court

correctly determined that the supporting affidavit established probable cause to believe that a

violation of the Uniform Controlled Substances Act was occurring inside the mobile home and

detached shed.


          Arguing to the contrary, Brooks relies on State v. Neth, 165 Wn.2d 177, 185, 196 P. 3d

658 ( 2008). In Neth, our Supreme Court held that probable cause to search an automobile was


lacking   where a police officer   had   observed "[     i] nnocuous objects that are equally consistent with

lawful   and unlawful conduct,"    such as empty plastic bags that might be used to store illegal

drugs.    165 Wn.2d at 185. According to Brooks, the smell of marijuana is equally consistent

with the lawful possession of medical marijuana and the unlawful possession of marijuana.


          But Fry contradicts Brooks' s argument. Despite the Medical Use of Cannabis Act,

marijuana possession remained a crime           in Washington.         Fry, 168 Wn.2d at 7. By invoking an

affirmative defense based on medical marijuana use, a defendant admits to " commit[ ing] a .

criminal act   but   pleads an excuse   for   doing   so."   Fry, 168 Wn.2d at 7. Thus the smell of

marijuana is not equally consistent with lawful conduct. Brooks' s argument fails.


7 We acknowledge that Initiative Measure No. 502 substantially decriminalized marijuana
possession.    See RCW 69. 50. 401( 3); LAws OF 2013,            ch.   3, §   1.   But the initiative does not bear
on our analysis because it took effect after Brooks' s offense occurred.




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No. 44549 -2 -II



         II. INEFFECTIVE ASSISTANCE OF COUNSEL AND SENTENCING ISSUES ARE MOOT


       Brooks next argues, and the State apparently concedes, that he received ineffective

assistance of counsel when his attorney failed to argue that his convictions for manufacture of a

controlled substance and possession of a controlled substance constituted the same criminal


conduct for sentencing purposes. Brooks also appears to argue that the sentencing court erred by

ordering Brooks to refrain from consuming or possessing alcohol as a community custody

condition. Because Brooks has been released into the community and is not on community

custody, these issues are moot.

          A   case   is   moot   if   a court can no   longer   provide effective relief. '   State v. Ross, 152


Wn.2d 220, 228, 95 P. 3d 1225 ( 2004) ( quoting                State v. Gentry, 125 Wn.2d 570, 616, 888 P. 2d

1105 ( 1995)).   We take judicial notice of public records revealing that Brooks' s probation is

closed. ER 201; Docket Entry, State v. Brooks, No. 12- 1- 00105 -7 ( Wash. Super. Ct. Mason

County   Sept. 27, 2013) ( noting the entry            of a   document   captioned, "   Probation Report


Supervision Closed ") ( accessed           via Appellate Court Records and Data System ( ACORDS)).

Because Brooks has been released from confinement and he is no longer on community custody,

we cannot provide effective relief. Therefore the sentencing issues he raises are moot.




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        Affirmed.


        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.




We concur:




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