State Of Washington v. William Michael Reis ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69911-3-1
Respondent, :>-^£
DIVISION ONE 95
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WILLIAM MICHAEL REIS, PUBLISHED OPINION
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Petitioner. FILED: March 31, 2014 ro T'S-: —^
Spearman, A.C.J. — 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 Medical Use of Cannabis Act, chapter
69.51 A RCW, a search warrant must be based on probable cause of a violation
of medical marijuana laws.1 We conclude that "qualifying patients" and
"designated providers" under the Act are able to assert only an affirmative
defense at trial to a charge of a violation of marijuana laws. The search warrant
here was supported by probable cause where it was based on evidence of a
marijuana growing operation. We affirm.
1The terms "marijuana" and "cannabis" are synonymous and will be used
interchangeably throughout our opinion. Chapter 69.51 A RCW uses both terms.
No. 69911-3-1/2
FACTS
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
condensation on that window, which was slightly open. He heard a distinct
humming sound coming from the northwest side of the home. Based on his
training and experience, Calabrese concluded that these were indications
marijuana was being grown indoors. He ran the license plate of the car in the
home's driveway and learned it was registered to William Reis. He learned that
Reis had been arrested in 2005 and been charged with violation of the Uniformed
Controlled Substances Act (VUCSA) and violation of the Uniformed Firearms Act
(VUFA) after a search of the same house revealed a marijuana-growing
operation in the basement. He also learned that Reis was found in possession of
1.3 grams of marijuana during a 2011 traffic stop. A booking photo of Reis
matched the appearance of the man Calabrese had seen tending to the
marijuana plants on the deck. Calabrese then attempted to contact Reis's
neighbors to inquire about unusual short traffic stays or circumstances around
the home that would indicate a drug-dealing operation. The neighbors refused to
No. 69911-3-1/3
speak to Calabrese, other than to state that they were fearful of Reis. On a later
date, Calabrese drove by Reis's home and again saw marijuana plants on the
back deck.
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 six 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 at 4-5, 33.
Reis was charged with a violation of the Uniform Controlled Substances
Act, manufacturing of marijuana, during a period of time intervening between
April 29, 2012 and May 21, 2012.2 Reis moved to suppress the evidence found in
his home, arguing that the search warrant was not supported by probable cause.
The trial court denied his motion.3 Reis sought discretionary review, which this
court granted.4
2 Reis's daughter, Rachael Reis, resides at Reis's home and was also charged with a
violation of the Uniform Controlled Substances Act. She is not a party to this petition for review.
3 The trial court concluded, "[l]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
growerof 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.
4 The trial court certified that its order involved a controlling question of law under RAP
2.3(b)(4).
No. 69911-3-1/4
DISCUSSION
This court reviews conclusions of law in an order pertaining to suppression
of evidence de novo. State v. Mendez, 137 Wash. 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).
A search warrant may be issued only upon a determination of probable
cause. State v. Cole, 128 Wash. 2d 262, 286, 906 P.2d 925 (1995). Probable cause
requires "'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. Shupe, 172 Wn.
App. 341, 348, 289 P.3d 741 (2012) (quoting State v. Thein, 138 Wash. 2d 133,
140, 977 P.2d 582 (1999)), rev, denied, 177 Wash. 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 Wash. 2d 177, 182, 196 P.3d 658 (2008).
Whether the search warrant in this case was supported by probable cause
involves the interpretation of RCW 69.51A.040. This court's purpose when
interpreting a statute is to enforce the intent of the legislature. Rental Housing
Ass'n of Puqet Sound v. City of Des Moines, 165 Wash. 2d 525, 536, 199 P.3d 393
(2009). If the plain language of the statute is unambiguous, this court's inquiry
ends and the statute is enforced "in accordance with its plain meaning." State v.
Armendariz, 160Wn.2d 106, 110, 156 P.3d 201 (2007). Under the "plain
meaning rule," this court examines the statutory scheme as a whole, considering
No. 69911-3-1/5
the language of the statute, related statutes, and other provisions of the same
act. City of Seattle v. Allison, 148 Wash. 2d 75, 81, 59 P.3d 85 (2002). This court
attempts to interpret statutes to give effect to all language in the statute and to
render no portion meaningless or superfluous. State v. J .P., 149 Wash. 2d 444, 450,
69 P.3d 318 (2003). Ifthe statute is subject to more than one reasonable
interpretation, it is ambiguous, and the court may resort to aids of statutory
construction, including examining legislative history. State v. Slattum, 173 Wn.
App. 640, 649, 295 P.3d 788, rev, denied, 178 Wash. 2d 1010, 308 P.3d 643
(2013).
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.5 See
RCW 69.50.401-.445 (establishing offenses and penalties). In 1998, however,
Washington citizens enacted Initiative 692, codified as chapter 69.51A RCW.6
The purpose of the Washington State Medical Use of Cannabis Act (MUCA) was
to allow certain individuals suffering from terminal or debilitating medical
conditions to use marijuana medicinally. RCW69.51A.005. The MUCA provided
patients and caregivers who met certain requirements an affirmative defense:
5 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
twenty-one 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.
6The legislature has amended the Act several times since its enactment.
No. 69911-3-1/6
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 69.51 A.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 69.51 A.040(2) (2010).
In State v. Fry, 168Wn.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,7 observing that RCW 69.51 A.040 established
an affirmative defense against marijuana charges, concluded that the
presentment of a person's purported authorization for medical marijuana was a
7This opinion was signed by four justices. Four other justices concurred in result only. Jd.
at 20 (Chambers, J., concurring).
No. 69911-3-1/7
requirement for the affirmative defense but nonetheless did not negate probable
cause for a search.8 Id. at 7-10. The plurality explained:
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.
jUatlO.
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 69.51 A.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 enforcement agencies may not
be held civilly liable for failure to seize cannabis in this
circumstance, if:
8The 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 6.
No. 69911-3-1/8
(1)(a) The qualifying patient or designated provider possesses no
more than fifteen cannabis plants and:
(i) 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^ 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;
(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.
9 The "Reviser's note" to RCW 69.51 A.040 states, "Section 901 of this act was vetoed by
the governor."
No. 69911-3-1/9
RCW 69.51A.040 thus provides protection against arrest, prosecution, criminal
sanctions, and civil consequences for qualifying patients10 and designated
providers11 who, among other things, register with the department of health.12 In
contrast, qualifying patients and designated providers who do not register but
otherwise meet the requirements of RCW 69.51A.040 and other specified
requirements may, as before the 2011 amendments, assert an affirmative
defense at trial. RCW 69.51A.043.
Reis argues that the plain language of RCW 69.51A.040, following the
2011 amendments, made the use and cultivation of medical marijuana
presumptively legal in certain circumstances. He contends Fry no longer applies
and that law enforcement must demonstrate probable cause of a violation of the
Act to obtain a search warrant. The State's response is two-fold. First it argues
that the heightened protections in RCW69.51A.040 against arrest, prosecution,
10 '"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 ofthe state ofWashington 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 69.51 A.010(4).
11 "'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.'"
RCW69.51A.010(1).
12 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 orassistance
with medical marijuana.
9
No. 69911-3-1/10
criminal sanctions, and civil consequences apply only to those qualifying patients
and designated providers who are included in a registry. Second, it contends that
because the registry was never established (due to the governor's veto of the
sections of chapter 181 that would have established a registry for qualifying
patients and designated providers), nobody can meet the requirements of the
statute. Thus, the State argues, a defendant who is in compliance with the
MUCA, as written subsequent to the governor's veto, may only assert an
affirmative defense to an alleged violation of Washington state marijuana laws.
We agree with the State.
The plain language of RCW 69.51 A.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. RCW 69.51 A.040 (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,
10
No. 69911-3-1/11
Section 901 was vetoed by the governor.13 Section 901 would have required the
department of health to adopt, by January 1, 2013, rules for the establishment of
a registration system. Section 901 also would have, with certain exceptions,
required law enforcement investigating a marijuana-related incident to make
reasonable efforts to determine whether the location or person under
investigation was registered before seeking a nonvehicle search warrant or arrest
warrant. Ch. 181, § 901(4) (vetoed). Because there was no registry established,
it is impossible for anyone to be registered or for police to check the registry
before seeking a search warrant. Thus, by default, qualifying patients and
designated providers are entitled only to an affirmative defense.
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 Wash. 2d 498, 104 P.2d 478 (1940) and Hallin v. Trent, 94 Wash. 2d 671, 619
P.2d 357 (1980). Those cases support the proposition that when the governor
13 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.
11
No. 69911-3-1/12
acts on a bill voted on by both houses of the legislature, he or she acts in a
legislative capacity and the intent of the legislature cannot be considered apart
from the governor's intent. Shelton Hotel, 4 Wash. 2d at 506; Hallin, 94 Wash. 2d at
677. Furthermore, "[t]he Governor's veto of a portion of a measure, if the veto is
not overridden, removes the vetoed material from the legislation as effectively as
though it had never been considered by the legislature." Hallin, 94 Wash. 2d at 677;
see also Shelton Hotel, 4 Wash. 2d at 506 ("'In exercising the veto power, the
Governor acts as a part of the legislative bodies and the act is to be considered
now just as it would have been ifthe vetoed provisions had never been written
into the bill at any stage of the proceedings.'") (quoting State ex rel Stiner v.
Yelle, 174 Wash. 402, 408, 25 P.2d 91 (1933)).
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 69.51A.040.14 Reis
contends, nevertheless, that any references to Section 901 or registration/the
registry that remain in Section 401/RCW 69.51A.040 are "incidentally vetoed"
and "manifestly obsolete" after the Governor's veto, quoting Washington Fed'n of
State Employees, AFL-CIO. Council 8, AFSCME v. State. 101 Wash. 2d 536, 682
P.2d 869 (1984). Thus, he contends, subsections (2) and (6) and part of
subsection (3) (through the words "section 901 of this act") of RCW 69.51A.040
were effectively removed from the statute as "terms and conditions" of lawful use
for qualifying patients and designated providers. Similarly, Reis contends that,
14 The governor did not strike any language relating to the registry/registration or Section
901 from Section 401. As Reis notes, the governor may only veto entire sections of
nonappropriation bills, not portions within sections. Const, art. 3, § 12 (amend. 62).
12
No. 69911-3-1/13
following the governor's veto of Section 901, the affirmative defense established
in RCW 69.51A.043 for those who fail to register is removed as though it had
never been considered by the legislature. Thus, he contends, the 2011
amendments to the MUCA made medical marijuana use presumptively legal for
all qualifying patients and designated providers who met the remaining terms and
conditions set forth in RCW 61.51 A.040.
We reject these arguments. Washington Federation does not support the
proposition that subsections (2), (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. \± at 537. The Governor approved the bill, Substitute House
Bill 1226, 47th Legislature, 1st Ex. Sess. (1982), but vetoed Section 30 and all
references thereto. Section 30 would have called for legislative review and
approval ofthe proposed administrative rules for implementing the act, and the
legislature's failure to approve the rules would have voided several sections of
the act. jd. at 538. The Governor found that implementation of Section 30 would
have created too much uncertainty as to the effectiveness of the law. \± 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. Jg\ at
539. The union argued that the Governor's veto was invalid, in relevant part,
13
No. 69911-3-1/14
because it was prohibited under Const, art. 3, § 12 (amend. 62) as an item
veto.15 Id. at 543. The Washington Supreme Court rejected the union's argument:
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.
Id at 544. RCW 1.08.015(2)(m) provides that the code reviser shall edit and
revise laws enacted by the legislature, "to the extent deemed necessary or
desirable by the reviser and without changing the meaning of any such law, in
the following respects only . . . (m) Strike provisions manifestly obsolete."
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 69.51 A.043, which is available for those who do
not register. A material distinction between the two categories of individuals
under RCW 69.51A.040 and RCW 69.51A.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.
15 Under Const, art. 3, § 12 (amend. 62),
If any bill presented to the governor contains] 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 contains] one or more appropriation
items he may object to any such appropriation item or items.
14
No. 69911-3-1/15
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.16 The statute provides different protections for
qualifying patients and designated providers who register and those who do not
register. Under RCW 69.51A.043, qualifying patients and designated providers
who are not registered but meet other requirements may only assert an
affirmative defense at trial. Reis's interpretation would permit those who do not
register to receive the same protection against arrest, prosecution, criminal
sanctions, and civil consequences that the statute provides only for those who
registered. Reis's argument ignores the affirmative defense set forth in RCW
69.51A.043 because, if medical marijuana use is presumed legal, there would be
no need for an affirmative defense. An affirmative defense admits the defendant
committed a criminal act but pleads an excuse for doing so. Fry, 168 Wash. 2d at 7
(citing State v. Votava. 149 Wash. 2d 178, 187-88, 66 P.3d 1050 (2003)).
Reis also cites a recent Washington Supreme Court case, State v. Kurtz,
178 Wash. 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." ]d 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. ]d at 479. Kurtz cannot be read to
16 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.
15
No. 69911-3-1/16
stand for the proposition that the amendments decriminalized marijuana use for
defendants who were unregistered and therefore not qualified marijuana users.
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 Wash. 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.
In sum, while the legislative intent of the 2011 amendments, as codified in
RCW 69.51 A.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 assistance with medical cannabis,
RCW 69.51A.040 cannot currently be enforced to the extent an individual asserts
medical marijuana use "in accordance with the terms and conditions of this
chapter." The protections against arrest, prosecution, criminal sanctions, and civil
consequences would apply only to qualifying patients and designated providers
who are registered. Currently no one can register. Thus, qualifying patients and
designated providers are left to assert an affirmative defense. It is undisputed
that, under Fry, the possible existence of an affirmative defense does not negate
16
No. 69911-3-1/17
probable cause.17 The trial court did not err in denying Reis's motion to
suppress.18
Affirmed.
WE CONCUR:
jpCA\.
JU t=r£2
17 Reis concedes that a search warrant affidavit need not defeat affirmative defenses and
that, ifthe Act merely provides an affirmative defense, the court's inquiry would end.
18 A recent decision by Division III, State v. Ellis, Wn. App. _, 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, itdid
not present probable cause to believe he was violating the Act in doing so. Jd. at 1172. Division III
held that an affidavit supporting a search warrant need not also show the inapplicability of the Act.
jd. at 1173. 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 "functionsabout the same as the old medical use
affirmative defense provided in former RCW69.51A.040(1) (1999)." Id 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. \± We do not
depart from the result in Ellis.
17