State v. Browne
State v. Browne
Opinion of the Court
¶1 The trial court excluded Paul Browne’s medical marijuana defense because he had more plants than were permitted by the Washington Administrative Code (WAC). We conclude this was error under the facts of this case and remand the case for a new trial.
FACTS
¶2 Mr. Browne was the designated medical marijuana provider for his son, Daniel DeHart-Browne. Mr. DeHartBrowne suffers from cyclical vomiting syndrome.
¶3 Mr. DeHart-Browne and Mr. Browne live in a rural Douglas County location. Mr. DeHart-Browne’s mother
¶4 On August 20, 2009, Douglas County Sheriff’s Deputy Rich Poppie, a “certified marijuana spotter,” flew over the property in a fixed wing aircraft and took photographs. The information he supplied to Detective Tim Scott was presented to a court commissioner, who authorized a search of the property. The deputies seized 88
¶5 The prosecutor filed a single count of unlawful manufacture of marijuana. Mr. Browne moved to dismiss the charges, arguing that the search warrant affidavit lacked probable cause and that the destruction of the plants violated his due process rights. He attached an affidavit from Gary Ackerson, a cannabis expert. Mr. Ackerson explained that the plants needed to be preserved in order to determine which ones were female plants capable of producing medical marijuana, which ones were “useless male” plants, and the condition of the female plants. In his opinion, the photographs were inadequate to convey the necessary information.
¶6 The defense brought an additional motion for a Franks
¶7 The court subsequently took up the motion to dismiss. The court denied the motion, ruling that the 15 plant limit
¶8 The court then heard a series of motions in limine from the prosecution. The court ruled that Mr. Ackerson was a qualified “expert on growing medical marijuana” but excluded his testimony because his affidavit had already established he could not opine on the amount of usable marijuana from the seized plants. The court clarified its previous ruling and stated that the WAC did not permit a defendant to overcome the presumptive 15 plant limit with evidence that the patient needed more than that number of plants for necessary medical use. A defendant would be able to present appropriate testimony that a patient’s 60-day supply could exceed 24 ounces of marijuana if the amount was medically necessary for the patient.
¶9 Mr. Browne sought discretionary review of these rulings. This court declined to accept interlocutory review. The parties then agreed to a stipulated trial in order to facilitate appellate review. The trial court encouraged the appeal in order to clarify the scope of the medical marijuana affirmative defense.
¶10 The court found Mr. Browne guilty at the stipulated trial. He received a 20-day jail sentence and promptly appealed to this court.
ANALYSIS
¶11 The sole issue addressed in the published portion of this opinion concerns the court’s ruling on the WAC’s 15 plant limit. We agree with the appellant that the 15 plant limit can be exceeded when there has been a demonstrated medical need. Accordingly, we reverse and remand for a new trial.
¶13 At the times relevant to this case, the 60-day supply was defined in the administrative code by the Department of Health. This regulation in pertinent part read:
(3) Presumptive sixty-day supply.
(a) A qualifying patient and a designated provider may possess a total of no more than twenty-four ounces of useable marijuana, and no more than fifteen plants.
(b) Amounts listed in (a) of this subsection are total amounts of marijuana between both a qualifying patient and a designated provider.
(c) The presumption in this section may be overcome with evidence of a qualifying patient’s necessary medical use.
Former WAC 246-75-010(3) (2008).
¶14 The task presented is to construe the noted language of former WAC 246-75-010(3) that governed at the time of this incident. Appellate courts perform de novo review of questions of statutory and regulatory interpretation. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (statutes); Skinner v. Civil Serv. Comm’n, 168 Wn.2d 845, 849, 232 P.3d 558 (2010) (regulations).
¶16 We discern no ambiguity in this provision. The title of subsection (3) is “presumptive sixty-day supply.” Former WAC 246-75-010(3). Subsection (3)(a) expressly defines the 60-day supply in terms of no more than 24 ounces of useable marijuana and no more than 15 plants.
¶17 Subsection (3)(c) then provides an exception, noting that the “presumption in this section” could be “overcome with evidence of a qualifying patient’s necessary medical use.” Former WAC 246-75-010(3)(e). Nothing in this exception indicates that it was limited to processed marijuana. The presumptive limits of subsection (3)(a) recognize that both plants and processed marijuana can be possessed. By its terms, the necessary use exception of subsection (3)(c) also applies to plants. The trial court erred by limiting the exception solely to harvested marijuana.
¶18 Mr. Browne argues that the exclusion of Mr. Ackerson’s testimony exacerbated this error, while the prosecution argues that the error was harmless because Mr. Browne did not have the prescribing doctor available as
¶19 However, we are not in a position to rule on the State’s argument. There was no record on this issue because the trial judge struck the defense based on the number of plants.
¶20 Mr. Browne also argues that the exclusion of Mr. Ackerson’s testimony should be overturned. Since we are remanding the case, we leave this issue, too, to the trial judge. It may be that Mr. Ackerson can supply information connecting the amount of marijuana needed by Mr. DeHart
¶21 The conviction is reversed and the case remanded for further proceedings consistent with this opinion.
¶22 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Additional facts relating to the issues addressed in the unpublished portion of this opinion will be related in conjunction with the analysis of each issue.
Cyclical vomiting syndrome appears to be a “debilitating medical condition” under RCW 69.51A.010(6)(f) (“[djiseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications”).
The record reflects that Mr. DeHart-Browne was hospitalized 30 times during the two years this matter was pending in the trial court.
The record is conflicting whether she and Mr. Browne ever married, although the stipulated facts indicate they are married. It appears that the two do not live together on the property.
Mr. Browne contests this number; he stated that there were only 40 plants and only 15 of those were the ones he was growing for his son. He alleged that the remaining plants belonged to Ms. DeHart and her friend.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Former WAC 246-75-010 and former RCW 69.51A.080 (2007) (directing Department of Health to adopt 60-day supply rules) were repealed after the legislature in 2011 codified the presumptive limits established by WAC 246-75--010 in current RCW 69.51A.040 and RCW 69.51A.045.
By defining “plant” in terms of a “growling]” plant, the WAC necessarily distinguished them from harvested or processed plants. Former WAC 246-75-010(2)(b).
We do not opine on the necessity of medical testimony for establishing Mr. DeHart-Browne’s qualifying patient status.
In a case where there was no defense attempt to establish that the presumptive limits were insufficient, a trial court could strike the affirmative defense when the defendant has too many plants or too much processed marijuana, but that was not this case. In fairness to the trial judge, it should be noted that the defense appeared to be evolving from an original contention that only 15 plants belonged to Mr. Browne to a newer, and not altogether consistent, claim that Mr. Browne needed more than 15 plants to care for his son.
We believe that an objective standard governs this inquiry. The question is not how many plants Mr. Browne needed under his particular circumstances to produce the required amount, but how many plants a reasonably competent farmer would need.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.