                                                                           FILED
                                                                         JAN 09, 2013
                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 31280-1-111
                                             )
                    Respondent,              )
                                             )
      V.                                     )
                                             )
DANIEL K. ELLIS,                             )         PUBLISHED OPINION
                                             )
                    Appellant.               )

      BROWN, J.-Daniel K. Ellis appeals his conviction for second degree unlawful

firearm possession, contending the trial court erred in denying his suppression motion.

He contends the search warrant lacked probable cause to believe his marijuana

growing operation was criminal, considering tensions between the Uniform Controlled

Substances Act (CSA), chapter 69.50 RCW, and the Washington State Medical Use of

Cannabis Act (MUCA), chapter 69.51A RCW. We disagree with him and affirm.

                                         FACTS

      The facts are undisputed. In March 2012, Spokane County Sheriff's Deputy

Mark Benner visited Mr. Ellis's residence to arrest a third party on local warrants. He

smelled a marijuana odor with increasing potency as he approached the house.

Because two unfriendly dogs prevented him from accessing the front door, he began
No. 31280-1-111
State v. Ellis

looking for another way to contact the residents. Near the garage, he again smelled a

marijuana odor and saw a very bright light emitting from the edges of windows mostly

covered by black plastic. Peering inside, he saw walling and insulation encompassing

about a quarter of the interior space. Based on his training and experience, he believed

Mr. Ellis was growing marijuana at his residence.

       Deputy Benner submitted an affidavit and obtained a warrant to search the

residence for evidence of marijuana manufacturing in violation of the CSA. While

executing the search warrant, law enforcement found one active and two inactive

marijuana growing rooms, two valid MUCA growing permits, and a loaded shotgun. Mr.

Ellis is a convicted felon.

       The State charged Mr. Ellis with second degree unlawful firearm possession. He

moved to suppress the shotgun under the exclusionary rule, arguing the search warrant

lacked probable cause to believe his marijuana growing operation was criminal. The

trial court denied the motion in written factual findings and legal conclusions stating:

       1. 	 Courts have been struggling with the medical marijuana issues for over
            a decade.
       2. 	 The state legislature has attempted to fix those issues over time.
       3. 	 There is no realistic way for law enforcement to determine if someone
            is a medical marijuana user.
       4. An authorized medical marijuana user must still comply with state law.
       5. 	 Law enforcement did not know if the defendant was in compliance with
            the medical marijuana statute.

       1. 	 Under the medical marijuana laws, there are limits.
       2. 	 It is still a violation of the law to have excess marijuana.
       3. 	 HIPAA[1] privacy laws prevent asking doctors about medical marijuana
            patients.

      1 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104­
191, 110 Stat. 1936 (codified in titles 18, 26, 29, and 42 U.S.C.).
                                             2
No. 31280-1-111
State v. Ellis

       4. 	 That invasion has to be justified by either a warrant or exigent 

            circumstances. 

       5. 	 Law enforcement has the authority to determine a defendant's 

            compliance with state statutes regarding medical marijuana. 

       6. 	 Based on the state of the law, as it currently exists, the search warrant
            was valid.
       7. 	 Law enforcement was lawfully allowed to search the home and gather
            evidence.

Clerk's Papers at 35-36. The court found Mr. Ellis guilty following a stipulated facts trial.

He appealed.

                                        ANALYSIS

       The issue is whether the trial court erred in denying Mr. Ellis's suppression

motion. He challenges the court's legal conclusion that probable cause supported the

search warrant. Specifically, he argues while the affidavit may have presented probable

cause to believe he was growing marijuana, it did not, considering the activities

decriminalized by MUCA, present probable cause to believe he was violating the CSA in

doing so. We review legal conclusions regarding evidence suppression de novo. 2

State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated on other

grounds by Brendlin v. California, 551 U.S. 249,127 S. Ct. 2400,168 L. Ed. 2d 132

(2007). And, we review de novo whether qualifying sworn information as a whole




       2The factual findings regarding evidence suppression are verities on appeal
because Mr. Ellis does not challenge them. See State v. Christian, 95 Wn.2d 655, 656,
628 P.2d 806 (1981); RAP 10.3(g). But we still consider them in determining whether
they support the legal conclusions. See State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d
1266 (2009).
                                             3

     No. 31280-1-111
     State v. Ellis

     presents probable cause supporting a search warrant. 3 In re Det. of Peterson, 145

     Wn.2d 789, 800, 42 P .3d 952 (2002).

            A judicial officer may not issue a search warrant unless he or she determines

     probable cause supports it. U.S. CONST. amend. IV; CONST. art. I, § 7; CrR 2.3(c).

     "Probable cause exists if the affidavit in support of the warrant sets 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 Wn.2d 133, 140,977 P.2d 582 (1999) (citing

     State v. Cole, 128 Wn.2d 262.286,906 P.2d 925 (1995»; see State v. Patterson. 83


j    Wn.2d 49,58,515 P.2d 496 (1973). "Accordingly, 'probable cause requires a nexus

     between criminal activity and the item to be seized, and also a nexus between the item
j
     to be seized and the place to be searched.'" Thein, 138 Wn.2d at 140 (quoting State v.

1
§
     Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997». While the affidavit need not make

1
1
     a prima facie showing of criminal activity, it must show criminal activity is at least
i

i    probable. See State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004). 


            The CSA generally criminalizes growing marijuana: "Except as authorized by this

~    chapter, it is unlawful for any person to manufacture ... a controlled substance,"
1
            3 Further, we interpret a statute de novo. Multicare Med. Ctr. v. Dep't of Soc. & 

1
   Health Servs., 114 Wn.2d 572, 582 n.15, 790 P.2d 124 (1990). When doing so, we
1    "discern and implemenf our legislature's intent. State v. J.P., 149 Wn.2d 444, 450. 69
     P.3d 318 (2003); see State ex reI. Great N. Ry. v. R.R. Comm'n of Wash., 52 Wash. 33, 



I

j
     36,100 P. 184 (1909). If the statute's meaning is plain, we effectuate it as an 

     expression of our legislature's intent. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 

     Wn.2d 1, 9,43 P.3d 4 (2002); Walkerv. City of Spokane, 62 Wash. 312, 318,113 P. 

     775 (1911). 


                                                   4
1
1

1
i
I

1
   No. 31280-1-111
~    State v. Ellis


I    including marijuana. 4 RCW 69.50.401(1); see RCW 69.50.401 (2)(c), .204(c)(22). But

     MUCA decriminalizes growing marijuana if a person meets certain requirements:

1          The medical use of cannabis in accordance with the terms and conditions
           of this chapter does not constitute a crime and a qualifying patient or

I
1
           designated provider in compliance with the terms and conditions of this
           chapter may not be arrested, prosecuted, or subject to other criminal
           sanctions ... for ... manufacture ... of ... cannabis under state law ....

     RCW 69.51A.040. Still, this provision's reach is narrow: "Nothing in this chapter shall

     be construed to supersede Washington state law prohibiting the ... manufacture ... of
1
     cannabis for nonmedical purposes." RCW 69.51A.020 .
1
.1
J
,           Interpreting these statutes together, we conclude MUCA created a potential
,I
i
~    medical use exception to the CSA's general rule criminalizing marijuana manufacturing.

     At least for purposes of probable cause, this new exception functions about the same as

I    the old medical use affirmative defense provided in former RCW 69.51A.040(1) (1999).
I
I    See generally Vitaliy Mkrtchyan, Note, Initiative 692, Now and Then: The Past, Present,
I
!    and Future of Medical Marijuana in Washington State, 47 GONZ. L. REV. 839, 863-64
j
     (2012) (discussing the medical use exception's possible limitations). In State v. Fry,

     168 Wn.2d 1,228 P.3d 1 (2010), a plurality of our Supreme Court held the medical use
1
1
j
     affirmative defense did not vitiate probable cause supporting a search warrant. The

     lead opinion affirmed this division's analysis on this issue while the concurring opinion

     expressed no view on this issue. Id. at 10 (J.M. Johnson, J., lead opinion). affg State v.

     Fry, 142 Wn. App. 456, 460-61, 174 P.3d 1258 (2008); id. at 20 (Chambers. J.,


           4  Because law enforcement obtained and executed the warrant in March 2012,
     we do not consider the November 2012 amendments made by Initiative 502, Laws of
     2013. ch. 3 (codified in chapters 46.04,46.20,46.61. and 69.50 RCW).

                                                  5
No. 31280-1-111
State v. Ellis

concurring). Because MUCA did not per se legalize marijuana or alter the established

elements of a CSA violation, the thrust of Fry survived Laws of 2011, ch. 181, § 401

(codified at RCW 69.51A.040).

      Our conclusion is consistent with legislative history. While our legislature initially

sought to prohibit searches for evidence of marijuana-based crimes unless supported

by probable cause of some MUCA noncompliance, those provisions were eventually

removed or vetoed. Compare S.B. 5073, §§ 401,901,904, 62d Leg., Reg. Sess.

(Wash. 2011), and ENGROSSED SECOND SUBSTITUTE S.B. 5073, §§ 401,901-902, 62d

Leg., Reg. Sess. (Wash. 2011), with LAws OF 2011, ch. 181, §§ 401,901, andVeto

Message on Engrossed Second Substitute S.B. 5073, from Governor Christine Gregoire

to the President and Members of the Senate (Apr. 29, 2011), reprinted in LAws OF 2011,

at 1374-76. Consequently, the MUCA exception applies to marijuana-based arrests,

prosecutions, and criminal sanctions, but not searches. See RCW 69.51A.040; S.B.

REP. on Engrossed Second Substitute S.B. 5073 as Amended by the House on Apr. 11,

2011, at 7, 62d Leg., Reg. Sess. (Wash. 2011); Veto Message on Engrossed Second

Substitute S.B. 5073, supra.

      Considering all, we hold an affidavit supporting a search warrant presents

probable cause to believe a suspect committed a CSA violation where, as here, it sets

forth enough details to reasonably infer the suspect is growing marijuana on his or her

property. The affidavit need not also show the MUCA exception's inapplicability. In so

holding, we respectfully disagree with United States v. Kynaston, No. CR-12-0016­

WFN, slip op. at 2 (E.D. Wash. May 31,2012) (granting a suppression motion and


                                            6

No. 31280-1-111
State v. Ellis

concluding that under Washington law, an affidavit supporting a search warrant for

evidence of a marijuana-based crime "must show probable cause that the criteria of the

medical marijuana exception have not been met"), rev'd, No. 12-30208 (9th Cir. July 24,

2013). Here, the trial court did not err in denying Mr. Ellis's suppression motion.

      Affirmed.



                                                  Brown, J.

I CONCUR:




                                             7

