State v. Reis
State v. Reis
Opinion of the Court
¶1 William Reis was charged with manufacturing a controlled substance in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, after a search of his residence pursuant to a warrant revealed evidence of a marijuana growing operation. The trial court denied his motion to suppress the evidence. The issue on discretionary review is whether, following the 2011 amendments to the Washington State Medical Use of Cannabis Act (Act or MUCA), chapter 69.51A RCW, a search warrant must be based on probable cause of a violation of medical marijuana laws.
FACTS
¶2 On May 15, 2012, King County Sheriff’s Detective Thomas Calabrese sought a search warrant for William Reis’s residence in Burien. Calabrese’s affidavit contained the following information: After receiving an anonymous tip that a person named “William” was growing marijuana in the Shorewood area of Burien, Calabrese drove through Shorewood and observed marijuana plants on the back deck of Reis’s home. He saw a man transferring the plants from smaller pots to larger ones. From the vantage point of a neighboring property, Calabrese saw black plastic covering one of the basement windows of Reis’s home and condensa
¶3 The district court concluded there was probable cause to believe a violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, had been committed and issued a search warrant. The search warrant was served on May 21, 2012. Officers seized 6 mature cannabis plants from Reis’s back deck. From inside the home, they seized 31 juvenile cannabis plants and roughly 13 pounds of cannabis. Officers also found a digital scale, high-intensity grow lights, a ledger, receipts for marijuana sales, and a bill of sale from “Chronic LLC.” Clerk’s Papers (CP) at 4-5, 33.
¶4 Reis was charged with a VUCSA, manufacturing of marijuana, during a period of time intervening between
DISCUSSION
¶5 This court reviews conclusions of law in an order pertaining to suppression of evidence de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
¶6 A search warrant may be issued only upon a determination of probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause requires “ Tacts 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. Shupe, 172 Wn. App. 341, 348, 289 P.3d 741 (2012) (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)), review denied, 177 Wn.2d 1010, 302 P.3d 180 (2013). In reviewing the issuance of a search warrant, the court is limited to the information contained within the affidavit supporting probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).
¶8 Initially, a brief discussion of relevant Washington marijuana laws is useful. Following the state legislature’s 1971 passage of the Uniform Controlled Substances Act, codified as chapter 69.50 RCW, marijuana has been a Schedule I controlled substance. RCW 69.50.204(c)(22).The possession, manufacture, and delivery of marijuana is generally prohibited under Washington law.
If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.
Former RCW 69.51A.040(1) (1999). The statute was amended in 2007 but continued to provide for an affirmative defense to qualifying patients or designated providers charged with a violation of state laws relating to marijuana. Laws of 2007, ch. 371, § 5; former RCW 69.51A.040(2) (2010).
¶9 In State v. Fry, 168 Wn.2d 1, 5, 228 P.3d 1 (2010), the Washington Supreme Court considered whether a search warrant was supported by probable cause where police officers were informed that marijuana was being grown at a certain residence and smelled marijuana upon arrival but the defendant, Fry, presented a purported medical authorization form for marijuana. Fry argued that probable cause to search was negated when he produced the authorization. Id. at 3-4, 6. A plurality of the Court,
As an affirmative defense, the [medical marijuana] defense does not eliminate probable cause where a trained officer detects the odor of marijuana. A doctor’s authorization does not indicate that the presenter is totally complying with the Act: e.g., the amounts may be excessive. An affirmative defense does not per se legalize an activity and does not negate probable cause that a crime has been committed.
¶10 In 2011, the legislature made amendments to the MUCA. Laws of 2011, ch. 181. The legislature’s intent, in part, was to protect qualifying patients from arrest, prosecution, criminal sanctions, and civil consequences based solely on their medical use of marijuana and to protect designated providers from the same consequences based solely on their assistance with the medical use of marijuana. Laws of 2011, ch. 181, § 102, codified as RCW 69-.51A.005(2). Following the amendments, RCW 69.51A.040 now provides:
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 designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, and investigating peace officers and law*446 enforcement agencies may not be held civilly liable for failure to seize cannabis in this circumstance, if:
(l)(a) The qualifying patient or designated provider possesses no more than fifteen cannabis plants and:
(1) No more than twenty-four ounces of useable cannabis;
(ii) No more cannabis product than what could reasonably be produced with no more than twenty-four ounces of useable cannabis; or
(iii) A combination of useable cannabis and cannabis product that does not exceed a combined total representing possession and processing of no more than twenty-four ounces of useable cannabis.
(b) If a person is both a qualifying patient and a designated provider for another qualifying patient, the person may possess no more than twice the amounts described in (a) of this subsection, whether the plants, useable cannabis, and cannabis product are possessed individually or in combination between the qualifying patient and his or her designated provider;
(2) The qualifying patient or designated provider presents his or her proof of registration with the department of health, to any peace officer who questions the patient or provider regarding his or her medical use of cannabis;
(3) The qualifying patient or designated provider keeps a copy of his or her proof of registration with the registry established in *section 901[9 ] of this act and the qualifying patient or designated provider’s contact information posted prominently next to any cannabis plants, cannabis products, or useable cannabis located at his or her residence;
(4) The investigating peace officer does not possess evidence that:
(a) The designated provider has converted cannabis produced or obtained for the qualifying patient for his or her own personal use or benefit; or
(b) The qualifying patient has converted cannabis produced or obtained for his or her own medical use to the qualifying patient’s personal, nonmedical use or benefit;
*447 (5) The investigating peace officer does not possess evidence that the designated provider has served as a designated provider to more than one qualifying patient within a fifteen-day period; and
(6) The investigating peace officer has not observed evidence of any of the circumstances identified in *section 901(4) of this act.
RCW 69.51 A.040 thus provides protection against arrest, prosecution, criminal sanctions, and civil consequences for qualifying patients
¶12 The plain language of RCW 69.51A.040 provides that “[t]he medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences” if certain specified requirements are met. (Emphasis added.) But several of the “terms and conditions” of the statute, insofar as an individual asserts that he or she did not commit a crime and seeks the protections against arrest, prosecution, criminal sanctions, and civil consequences, cannot be met. Subsections (2), (3), and (6) set forth requirements relating to registration with the Department of Health or section 901. As the code reviser’s note to RCW 69.51 A.040 explains,
¶13 Reis contends that because section 901 was vetoed by the governor, the MUCA must be read as though section 901 and any provision referencing the registry was never considered by the legislature. He cites Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940) and Hallin v. Trent, 94 Wn.2d 671, 619 P.2d 357 (1980). Those cases support the proposition that when the governor acts on a bill voted on
¶14 Thus, under Hallin and Shelton Hotel, the MUCA must be read without the sections that were actually vetoed by the governor. Here, the governor vetoed section 901 but not section 401, which amended RCW 69.51 A.040.
¶15 We reject these arguments. Washington Federation does not support the proposition that subsections (2) and (6) and part of subsection (3) must be read out of the statute and not considered “terms and conditions.” In Washington Federation, the state legislature amended state civil service laws to permit performance to be considered in matters of compensation, reduction in force, and reemployment. Id. at 537. The governor approved the bill, Substitute H.B. 1226, 47th Leg., 1st Ex. Sess. (1982), but vetoed section 30 and all references thereto. Section 30 would have called for legislative review and approval of the proposed administrative rules for implementing the act, and the legislature’s failure to approve the rules would have voided several sections of the act. 101 Wn.2d at 538. The governor found that implementation of section 30 would have created too much uncertainty as to the effectiveness of the law. Id. A union brought suit against the State and governor, among others, challenging certain sections of the law and the validity of the governor’s veto of section 30. Id. at 539. The union argued that the governor’s veto was invalid, in relevant part, because it was prohibited under Const, art. Ill, § 12 (amend. 62) as an item veto.
The veto of Governor Spellman was of an entire section and was valid. The deleted references to section 30 were incidentally vetoed purely as a ministerial act. If not deleted, the code reviser, pursuant to RCW 1.08.015(2)(m), would have taken out such “manifestly obsolete” references.
¶16 In Washington Federation, section 30 was vetoed, and the references to section 30 could be removed from the other parts of the legislation without changing the meaning of the sections of the legislation not vetoed. Here, the registration requirements under RCW 69.51A.040 are substantive requirements under the legislation passed, particularly when read in conjunction with the affirmative defense under RCW 69.51A.043, which is available for those who do not register. A material distinction between the two categories of individuals under RCW 69.51 A.040 and RCW 69.51 A.043 is the fact of registration. The registration requirements are not merely “manifestly obsolete” references to a vetoed section that have no practical effect on the intended functioning of the statute. Washington Federation is distinguishable.
¶17 We disagree that the governor’s veto eliminated the affirmative defense. Such an interpretation is at odds with the plain language of the statute as amended by the legislation.
¶18 Reis also cites a recent Washington Supreme Court case, State v. Kurtz, 178 Wn.2d 466, 309 P.3d 472 (2013), to support his contention that the Act legalizes medical cannabis possession. In Kurtz, the court stated that “in 2011 the legislature amended the Act making qualifying marijuana use a legal use, not simply an affirmative defense.” Id. at 476. But the issue in Kurtz was whether the former Act superseded the common law medical necessity defense for marijuana. The court held that it did not. Id. at 479. Kurtz cannot be read to stand for the proposition that the amendments decriminalized marijuana use for defendants who were unregistered and therefore not qualified marijuana users.
¶19 Reis argues that if there is any ambiguity in the statute, the rule of lenity requires this court to construe the statute strictly against the State and in his favor. The rule of lenity requires that where two possible constructions of a statute are permissible, the statute must be strictly construed against the State and in favor of the accused. State v. Gore, 101 Wn.2d 481, 485-86, 681 P.2d 227 (1984). But RCW 69.51 A.040 is not ambiguous; it plainly sets forth certain requirements that cannot be met by anyone until and unless the Act is amended to provide for a registry. The rule of lenity does not apply.
¶20 In sum, while the legislative intent of the 2011 amendments, as codified in RCW 69.51A.010(2), was that qualifying patients and designated providers shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences based solely on their use of or
¶21 Affirmed.
Review granted at 181 Wn.2d 1022 (2014).
The terms “marijuana” and “cannabis” are synonymous and will be used interchangeably throughout our opinion. Chapter 69.51A RCW uses both terms.
Reis’s daughter, Rachael Reis, resides at Reis’s home and was also charged with a VUCSA. She is not a party to this petition for review.
The trial court concluded, “[I]t is clear that the legislature did not intend to decriminalize all marijuana grow operations, nor put the burden upon law enforcement to demonstrate that a grower of marijuana is not a qualified medical marijuana patient or a designated provider.” CP at 92. Thus, it concluded, probable cause for a search warrant does not require law enforcement officers to investigate whether a person growing marijuana is authorized to possess or cultivate marijuana for medical purposes.
The trial court certified that its order involved a controlling question of law under RAP 2.3(b)(4).
Initiative 502, passed in November 2012, legalized possession of small amounts of marijuana for individuals over 21 years of age. See RCW 69.50.4013 (possession, by person 21 years of age or older, of useable marijuana in amounts not exceeding those set forth in RCW 69.50.360(3) is not a violation of any provision of Washington state law). Initiative 502 has no bearing on this case.
The legislature has amended the Act several times since its enactment.
This opinion was signed by four justices. Four other justices concurred in result only. Fry, 168 Wn.2d at 20 (Chambers, J., concurring).
The Fry plurality also observed, “It is difficult to imagine how a law enforcement officer, having been presented with a medical marijuana authorization, would be able to determine that the marijuana is otherwise being lawfully possessed . . . without some kind of search.” Id. at 10.
rpRe “^Reviser’s note” to RCW 69.51A.040 states, “Section 901 of this act was vetoed by the governor.”
“Qualifying patient” means a person who:
(a) Is a patient of a health care professional;
(b) Has been diagnosed by that health care professional as having a terminal or debilitating medical condition;
(c) Is a resident of the state of Washington at the time of such diagnosis;
(d) Has been advised by that health care professional about the risks and benefits of the medical use of marijuana; and
(e) Has been advised by that health care professional that they may benefit from the medical use of marijuana.
RCW 69.51A.010(4).
“Designated provider” means a person who:
(a) Is eighteen years of age or older;
(b) Has been designated in writing by a patient to serve as a designated provider under this chapter;
(c) Is prohibited from consuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider; and
(d) Is the designated provider to only one patient at any one time.
RCW 69.51A.010(1).
The legislature’s intent in enacting the 2011 amendments, as stated in RCW 69.51A.005(2), was to protect qualifying patients and designated providers from arrest, prosecution, criminal sanctions, and civil consequences based solely on their use of or assistance with medical marijuana.
The governor was concerned that the sections of the legislation that would direct employees of the state Departments of Health and Agriculture to authorize and license cannabis businesses would require such employees to violate federal criminal law and expose them to federal prosecution, particularly where “the United States Attorneys have made it clear that state law would not provide these individuals safe harbor from federal prosecution.” Laws of 2011, ch. 181, governor’s veto message at 1375. With regard to the registry provisions, the governor explained that these were associated with or dependent upon the licensing sections:
I am also open to legislation that establishes a secure and confidential registration system to provide arrest and seizure protections under state law to qualifying patients and those who assist them. Unfortunately, the provisions of Section 901 that would provide a registry for qualifying patients and designated providers beginning in January 2013 are intertwined with requirements for registration of licensed commercial producers, processors and dispensers of cannabis. Consequently, I have vetoed section 901 .... I am not vetoing Sections 402 or 406, which establish affirmative defenses for a qualifying patient or designated provider who is not registered with the registry established in section 901. Because these sections govern those who have not registered, this section is meaningful even though section 901 has been vetoed.
Id. at 1376 (emphasis added).
The governor did not strike any language relating to the registry/registration or section 901 from section 401. As Reis notes, the governor may veto only entire sections of nonappropriation bills, not portions within sections. Const, art. Ill, § 12 (amend. 62).
Under Const, art. Ill, § 12 (amend. 62),
If any bill presented to the governor contain[s] several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contain[s] one or more appropriation items he may object to any such appropriation item or items.
Moreover, the governor did not intend to invalidate the affirmative defense provisions. As the governor pointed out in her veto message, because RCW 69.51A.043, RCW 69.51A.045, and RCW 69.51A.047 always governed those who are not registered, the affirmative defense provisions are “meaningful even though section 901 has been vetoed.” Laws of 2011, ch. 181, governor’s veto message at 1376.
Reis concedes that a search warrant affidavit need not defeat affirmative defenses and that if the Act merely provides an affirmative defense, the court’s inquiry would end.
A recent decision by Division Three, State v. Ellis, 178 Wn. App. 801, 315 P.3d 1170 (2014), addresses a similar issue. There, the defendant argued that while the affidavit for a warrant to search his home may have presented probable cause to believe he was growing marijuana, it did not present probable cause to believe he was violating the Act in doing so. Id. at 804-05. Division Three held that an affidavit supporting a search warrant need not also show the inapplicability of the Act. Id. at 807. The court reasoned that the Act created a potential medical use exception to the Controlled Substances Act’s general rule criminalizing marijuana manufacturing and that for probable cause purposes the exception “functions about the same as the old medical use affirmative defense provided in former RCW 69.51A.040(1) (1999).” Id. at 806. Because the Act did not per se legalize marijuana or alter the elements of a Controlled Substances Act violation, the court concluded that the reasoning of Fry survived the 2011 amendments to the Act. Id. at 807. We do not depart from the result in Ellis.
Reference
- Full Case Name
- The State of Washington v. William Michael Reis
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