State v. Fry

228 P.3d 1

168 Wash.2d 1

STATE of Washington, Respondent, v. Jason Lee FRY, Petitioner.

No. 81210-1.

Supreme Court of Washington, En Banc.

Argued March 12, 2009.

Decided January 21, 2010.

William D. Edelblute, Attorney at Law, Spokane Valley, WA, for Petitioner.

John Allan Troberg, Clallam County Prosecuting Atty., Port Angeles, WA, Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, Timothy Rasmussen, Stevens County Prosecutor, Colville, WA, for Respondent.

Alison Holcomb, ACLU of Washington, Paul J. Lawrence, Matthew J. Segal, K & L Gates LLP, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Pamela Beth Loginsky, Washington Ass'n of Prosecuting Atty., Olympia, WA, Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

J.M. JOHNSON, J.

¶ 1 Two police officers were informed of a marijuana growing operation at the residence of Jason and Tina Fry. When the officers approached the home, the smell of burning marijuana was apparent. Jason Fry did not consent to a search, and Tina Fry presented a document purporting to be authorization for medical marijuana. The officers obtained a telephonic search warrant, entered the Frys' home, and seized over two pounds of marijuana.

¶ 2 At trial, Jason Fry (Fry) argued the marijuana evidence should have been suppressed because presentation of a medical marijuana authorization automatically negates probable cause. The judge denied the motion to suppress and also declined to allow Fry to present a compassionate use defense on other grounds. Fry appealed both rulings.

¶ 3 We affirm the Court of Appeals, which upheld the trial court's decision to allow the evidence seized at the Frys' home pursuant to a warrant and declined to allow Fry to claim the compassionate use defense at trial.

FACTS AND PROCEDURAL HISTORY

¶ 4 On December 20, 2004, Stevens County Sheriff Sergeant Dan Anderson and Deputy Bill Bitton (officers) went to the residence of Jason and Tina Fry. The officers had received information there was a marijuana growing operation there.

¶ 5 The officers walked up to the front porch and smelled the scent of burning marijuana. Jason Fry opened the door, at which time the officers noticed a much stronger odor of marijuana. Fry told the officers he had a legal prescription for marijuana and told the officers to leave absent a search warrant. Tina Fry gave the officers documents entitled "medical marijuana authorization." The authorization listed Fry's qualifying condition as "severe anxiety, rage, & depression related to childhood." Clerk's Papers (CP) at 20-23.

¶ 6 The officers obtained a telephonic search warrant and found several containers with marijuana, growing marijuana plants, growing equipment, paraphernalia, and scales in the Frys' home. The marijuana was found to weigh 911 grams (more than 2 pounds).

¶ 7 Prior to trial, Fry made a motion to suppress the evidence seized by the officers pursuant to the search warrant. The motion also indicated Fry would assert the affirmative defense of medical marijuana authorization (compassionate use defense) pursuant to former RCW 69.51A.040 (1999).

¶ 8 After hearing arguments, the superior court judge denied Fry's motion to suppress. The court concluded the officers demonstrated probable cause to search the Frys' home based on the strong odor of marijuana and other facts described in the telephonic affidavit. The court also concluded that Fry did not qualify for the compassionate use defense because he did not have a qualifying condition.¹

¶ 9 After a stipulated facts bench trial, Fry was convicted of possession of more than 40 grams of marijuana. The court sentenced him to 30 days of total confinement, converted to 240 hours of community service. Fry appealed, and Division Three of the Court of Appeals held that Fry's production of a document purporting to be a marijuana use authorization did not prohibit the search of Fry's home by police officers who had probable cause and obtained a warrant. State v. Fry, 142 Wash.App. 456, 461, 174 P.3d 1258 (2008). The Court of Appeals also agreed with the trial court that Fry was not a "qualifying patient" and therefore was not able to claim the affirmative defense for medical marijuana use. Id. at 462-63, 174 P.3d 1258. Fry appealed the decision, and we granted review. State v. Fry, 164 Wash.2d 1002, 190 P.3d 55 (2008).

ISSUES

1. Whether a telephonic search warrant was supported by probable cause when police officers were informed that marijuana was being grown at a certain residence, the officers smelled marijuana upon arriving, but the defendant provided a medical authorization form for marijuana

2. Whether the trial court erred in disallowing Fry's medical marijuana defense

ANALYSIS

A. Whether a telephonic search warrant was supported by probable cause when police officers were informed that marijuana was being grown at a certain residence, the officers smelled marijuana upon arriving, but the defendant provided a medical authorization form for marijuana

¶ 10 Fry argues the marijuana evidence seized by the officers should have been suppressed. We review a trial court's conclusion of law pertaining to the suppression of evidence de novo. State v. Eisfeldt, 163 Wash.2d 628, 634, 185 P.3d 580 (2008) (quoting State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004)). As the findings of fact in this case were stipulated and uncontested, they are verities on appeal. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006) (citing State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003)).

¶ 11 The warrant clause of the Fourth Amendment to the United States Constitution and article I, section 7 of our own constitution requires that a search warrant be issued upon a determination of probable cause. State v. Vickers, 148 Wash.2d 91, 108, 59 P.3d 58 (2002).² "The probable cause requirement is a fact-based determination that represents a compromise between the competing interests of enforcing the law and protecting the individual's right to privacy." State v. Neth, 165 Wash.2d 177, 182, 196 P.3d 658 (2008) (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). "Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." State v. Maddox, 152 Wash.2d 499, 505, 98 P.3d 1199 (2004) (citing State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999)). "It is only the probability of criminal activity, not a prima facie showing of it, that governs probable cause." Maddox, 152 Wash.2d at 505, 98 P.3d 1199.

¶ 12 There is no contention that the facts, including the information and smell of marijuana, do not support a finding of probable cause to search the Frys' residence.³ However, Fry contends the probable cause was negated once he produced the authorization. Although there was a later dispute over the validity of the authorization, there is no indication in the record that the officers or the magistrate questioned the validity at the time the search warrant was issued. Nevertheless, the officers' search and arrest were supported by probable cause, and a claimed authorization form does not negate probable cause.

Former chapter 69.51A RCW (1999) (the Act)

¶ 13 By passing Initiative 692 (I-692), the people of Washington intended that

qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana.

Former RCW 69.51A.005 (1999). Additionally,

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) (emphasis added). Based on I-692 and the derivative statute, we have recognized that Washington voters created a compassionate use defense against marijuana charges. See State v. Tracy, 158 Wash.2d 683, 691, 147 P.3d 559 (2006). An affirmative defense admits the defendant committed a criminal act but pleads an excuse for doing so. State v. Votava, 149 Wash.2d 178, 187-88, 66 P.3d 1050 (2003) (citing State v. Riker, 123 Wash.2d 351, 367-68, 869 P.2d 43 (1994)). The defendant must prove an affirmative defense by a preponderance of the evidence. State v. Frost, 160 Wash.2d 765, 773, 161 P.3d 361 (2007). An affirmative defense does not negate any elements of the charged crime. Id.

¶ 14 Possession of marijuana, even in small amounts, is still a crime in the state of Washington. See RCW 69.50.4014. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys' residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the...