State v. Brooks

STATE OF WASHINGTON, Respondent, v. JONATHAN W. BROOKS, Appellant.

No. 44549-2-II

Court of Appeals of Washington, Division 2

July 15, 2014

UNPUBLISHED OPINION

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.

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 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.^[1] 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 marijuana user may possess.^[2]

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.

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.

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 Del 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 69.51 A.040(l) (1999), the legislature established an affirmative defense to marijuana-related 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.2dat3, 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 69.51 A.040.

RCW69.51A.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 69.51 A 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...