Opinion
40491-5-II
01-31-2012
STATE OF WASHINGTON, Respondent, v. MATTHEW COLT CHAPMAN, Appellant.
UNPUBLISHED OPINION
QUINN-BRINTNALL, J.
After a bench trial on stipulated facts, the trial court found Matthew Colt Chapman guilty of unlawful manufacture of marijuana in violation of the Uniform Controlled Substances Act, RCW 69.50.401(1), and in a separate jury trial, a jury found him guilty of fraudulent production of or tampering with medical marijuana documentation in violation of former RCW 69.51A.060(5) (1999). Matthew appeals his conviction, asserting that he was a "qualifying patient" under former RCW 69.51A.010(3) (1999), even though his authorization card was expired the first time he presented it to a police officer. Matthew also asserts that the trial court erred in denying him the opportunity to raise a complete medical marijuana affirmative defense under former RCW 69.51A.040 (1999). In a statement of additional grounds (SAG), Matthew asserts that the trial court erred when it denied his motion to suppress evidence seized following execution of a search warrant, alleging that the police officer made misrepresentations and omissions in the search warrant application that render the search warrant invalid. We affirm.
Ch. 69.50 RCW.
We refer to members of the Chapman family by their first names for the sake of clarity. We intend no disrespect.
RAP 10.10.
FACTS
On December 30, 2007, a woman called 911 to report a man shooting a handgun out of his truck window and into the air. The woman told the dispatcher that the man's name was "Cody Chapman" and that he was driving a white pickup truck. 1 Report of Proceedings (RP) at 9. Officers from the Cowlitz County Sheriff's Office and the Castle Rock Police Department responded. The officers searched for Cody along the driveway to the house, in a white truck, an outbuilding or barn, and the house.
Inside the truck, Cowlitz County Sheriff's Deputy Cory Robinson saw the gun the woman had described on the passenger seat. Robinson secured the gun which did not have a magazine or any ammunition rounds in it. Robinson, Castle Rock Police Officer Brandon McNew, and Cowlitz County Sheriff's Deputy Brent Harris saw a light inside the outbuilding. As they approached the outbuilding, the officers could smell unburned marijuana. The officers looked through an open outside door and saw a second door inside the outbuilding with several padlocks on it. The officers announced their presence, received no reply, and went around the back of the outbuilding to investigate the source of the unburned marijuana smell.
Cowlitz County Sheriff's Deputies Robert Brewer and Harris knocked on the door of the house and Cody's mother answered, followed closely by his father, Matthew. Brewer asked if Cody was home, entered the house, and arrested Cody for reckless endangerment. While Cowlitz County Sheriff's Deputy Lisa Uhlich secured the Chapmans' property, Deputy Robinson obtained a search warrant to search the outbuilding.
Matthew gave Deputy Uhlich his medical marijuana authorization card. Uhlich noted that the expiration date had been altered from "April 27, 2007, " to "April 27, 2008, " to which Matthew replied, "Oh, really?" Ex. 2; 2 RP at 257. Matthew stated that he was "just trying to be legal." 2 RP at 258. Cowlitz County Sheriff's Deputy Fred Taylor took photographs and video of the growing marijuana in the outbuilding.
The Department of Health imposed guidelines, effective November 2, 2008, defining the quantity of marijuana that could reasonably be presumed a 60-day supply. WAC 246-75-010. The amount of marijuana Matthew grew at the time the police discovered his operation is not at issue in this case. RCW 10.01.040; State v. Kane, 101 Wn.App. 607, 610-11, 5 P.3d 741 (2000).
On January 10, 2008, Matthew obtained another medical marijuana authorization card with new start and expiration dates from his physician, Dr. Thomas Orvald. On June 17, the State charged Matthew by information with unlawful manufacture of marijuana in violation of the Uniform Controlled Substances Act, RCW 69.50.401(2)(c). Matthew waived his right to a speedy trial and, after several continuances, on July 2, 2009, the State amended the information to add a charge of fraudulent production of or tampering with medical marijuana documentation in violation of former RCW 69.51A.060(5).
Matthew filed a motion to suppress evidence seized pursuant to the search warrant, namely the photographs of the growing marijuana, arguing that the warrant was invalid because the police did not have probable cause to enter his property and the affidavit contained material misrepresentations and omissions. At a hearing on the motion to suppress on March 26, following witness testimony given on January 15 and March 26, the trial court denied the motion, finding that the officers had probable cause to enter the outbuilding and ruled that the officers' "incursion into . . . the anteroom for the purpose of clearing it" was proper. 1 RP at 154.
During a separate hearing on Matthew's motion in limine, the trial court allowed Matthew to raise the affirmative defense that he lawfully possessed and manufactured marijuana because he was a "qualifying patient." However, during a hearing held the morning of the first day of the scheduled jury trial, the trial court denied Matthew's proposed affirmative defense jury instruction, thereby excluding evidence of the new authorization card Matthew received on January 10, 2008. The trial court reasoned that it would not give the jury instruction because Matthew's card was expired at the time he handed his altered card to the police, and "the fact that it has an expiration date[] indicates a judgment by the physician that the diagnosis and authorization is not to be considered as unlimited or unvalid [sic]." 2 RP at 233. Matthew then waived his right to a jury trial on the unlawful manufacture of marijuana charge and stipulated that he was growing marijuana on December 30, 2007. Matthew proceeded to a jury trial on the fraudulent document production charge.
A qualifying patient is a person who
(a) [i]s a patient of a physician licensed under chapter 18.71 or 18.57 RCW;
(b) Has been diagnosed by that physician 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 physician about the risks and benefits of the medical use of marijuana; and
(e) Has been advised by that physician that they may benefit from the medical use of marijuana.Former RCW 69.51A.010(3).
Following a bench trial, the trial court found Matthew guilty of unlawfully manufacturing marijuana. The trial court declared the first jury trial on the fraudulent document production charge a mistrial because of a hung jury. After a second jury trial, the jury found Matthew guilty of fraudulently producing medical marijuana documentation. The trial court sentenced Matthew to 15 days confinement for each count, to be served concurrently. Matthew timely appeals his convictions for unlawfully manufacturing marijuana and fraudulent production of or tampering with medical marijuana documentation.
ANALYSIS
Medical Marijuana Affirmative Defense
Matthew challenges the trial court's order excluding evidence of his January 10, 2008 medical marijuana authorization card at trial. Specifically, Matthew argues that the exclusion prevented him from asserting a complete affirmative defense that he was legally growing marijuana for medical purposes under former RCW 69.51A.040(1). Matthew also contends that the trial court erred in excluding as irrelevant his valid authorization card obtained 10 days after the police found the marijuana because the card proved that he was a "qualifying patient" regardless of the authorization expiration date. The State asserts that Matthew did not comply with the requirements of former RCW 69.51A.040 because his authorization was expired at the time he presented it to Deputy Uhlich. The State argues that to dismiss the doctor's one-year authorization limitation would lead to absurd results, such as perpetual validation of documents and ignoring doctors' limitations on treatments. The State also argues that Matthew's authorization card was per se invalid because he had altered it and Matthew should not be permitted to benefit from the affirmative defense provided by the statute. We agree.
Former RCW 69.51A.040(1) provides,
If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged 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.
The Washington State legislature amended RCW 69.51A.040, effective July 22, 2011, by adding a new paragraph, which provides,
A qualifying patient . . . who . . . does not present his or her valid documentation to a peace officer who questions the patient . . . regarding his or her medical use of cannabis but is in compliance with all other terms and conditions of this chapter may establish an affirmative defense to charges of violations of state law relating to cannabis.Laws of 2011, ch. 181, § 406. This section does not apply to Matthew. It was enacted after the events and trial at issue here and because he was not in compliance with all other terms of the chapter, his authorization card was fraudulently produced in violation of former RCW 69.51A.060(5).
We review whether substantial evidence supports the trial court's factual findings, and whether those findings support the trial court's conclusion that Matthew failed to present a valid authorization card to Deputy Uhlich under former RCW 69.51A.040(2)(c). State v. Bartolome, 139 Wn.App. 518, 521-22, 161 P.3d 471 (2007). We review de novo the question of law of whether Matthew complied with former RCW 69.51A.040. State v. Adams, 148 Wn.App. 231, 235, 198 P.3d 1057 (2009) (courts review interpretation of a statute de novo (citing State v. Shepherd, 110 Wn.App. 544, 550, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002))). Unchallenged findings are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)).
A qualifying patient is required to "[p]resent his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana." Former RCW 69.51A.040(2)(c). Valid documentation is "[a] statement signed by a qualifying patient's physician, or a copy of the qualifying patient's pertinent medical records, which states that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient." Former RCW 69.51A.010(5). A defendant must obtain and possess valid documentation from a health care professional in advance of law enforcement's questioning his medical marijuana use and possession. State v. Hanson, 138 Wn.App. 322, 327-28, 157 P.3d 438 (2007); State v. Butler, 126 Wn.App. 741, 750-51, 109 P.3d 493 (2005).
The United States Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. U.S. Const. amend. VI; Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). "Criminal defendants have a due process right to have their defenses heard." State v. Fry, 168 Wn.2d 1, 14, 228 P.3d 1 (2010) (Chambers, J., concurring) (citing State v. Lord, 161 Wn.2d 276, 301, 165 P.3d 1251 (2007)). But a criminal defendant has no constitutional right to have irrelevant evidence admitted. Lord, 161 Wn.2d at 294.
Here, although Matthew provided expired documentation on the day the police officers questioned him about the growing marijuana, he argues that he complied with the statute under Hanson by providing the police with valid documentation ten days after the incident and six months before he was charged. Matthew misreads Hanson. In Hanson, the police executed a search warrant on Hanson's motel room while he was not present and seized marijuana plants. 138 Wn.App. at 325. The next day, Hanson obtained a valid authorization card from his physician to use marijuana for medical purposes. Hanson, 138 Wn.App. at 325. The trial court refused to admit the authorization card at trial and after a stipulated bench trial, the trial court found Hanson guilty of manufacturing a controlled substance. Hanson, 138 Wn.App. at 325.
Division Three of this court reversed, holding that Hanson satisfied the provisions of the statute. Hanson, 138 Wn.App. at 327. The court reasoned that the statute does not require that a qualifying patient obtain documentation in advance of a police search and seizure, and that Hanson provided his documentation the first day he was "questioned" by police, in accordance with the statute. Hanson, 138 Wn.App. at 327. The Hanson court expressly stated that if Hanson had been present on the day of the raid and had been asked to present valid documentation, he would not have been able to do so and would not have satisfied the statutory requirements. 138 Wn.App. at 327.
Here, unlike in Hanson, Matthew was present during the search of his property and did not present a valid authorization card to the police on the day of his son's arrest in accordance with former RCW 69.51A.040(2)(c). 138 Wn.App. at 327. Instead, Matthew presented an expired card to Deputy Uhlich. See State v. Ginn, 128 Wn.App. 872, 884, 117 P.3d 1155 (2005) (a primary caregiver is precluded from raising a medical marijuana affirmative defense under ch. 69.51A RCW because a handwritten notarized letter does not strictly comply with the valid documentation statute), review denied, 157 Wn.2d 1010 (2006). Matthew provided valid documentation only after police questioning. Thus, even if the trial court had admitted Matthew's new authorization card as evidence at trial, Matthew could not prove he was in compliance with the statute on December 30, 2007. Former RCW 69.51A.040(2)(c). Obtaining a valid authorization card after questioning does not avail a qualifying patient of the consequences for failing to comply with the statute. Former RCW 69.51A.040. Sufficiency of the Evidence
For the first time in his reply brief, Matthew appears to challenge the sufficiency of the evidence proving that he fraudulently produced medical marijuana documentation. Specifically, Matthew argues that he did not provide the altered authorization card to Deputy Uhlich for the purpose of having it accepted as valid documentation, but provided it as "an offer of proof that he would be able to produce valid documentation in the future." Reply Br. of Appellant at 13. We do not consider arguments raised for the first time in a reply brief and do not address this issue further. RAP 10.3(c); State v. Alton, 89 Wn.2d 737, 739, 575 P.2d 234 (1978); State v. White, 123 Wn.App. 106, 114 n.1, 97 P.3d 34 (2004). Statement of Additional Grounds (SAG)
For the first time, in his SAG, Matthew asserts that the affidavit in support of the search warrant contains material misrepresentations and omissions of fact. He alleges that the officers failed to include information relevant to the magistrate's determination of probable cause. Specifically, Matthew alleges that Deputy Robinson omitted from the affidavit that (1) Robinson seized the gun before searching for Cody in the outbuilding, (2) the police officers had walked past "numerous clearly visible 'No Trespassing Signs, '" (3) the padlocked door was inside the outbuilding, and (4) the location of the padlocked door and the vent where the officers smelled marijuana in relation to the house. Clerk's Papers (CP) at 23. Because he asserts that the search warrant was invalid, Matthew assigns error to the subsequent search of his property and asserts that the trial court erred when it did not suppress Deputy Taylor's photos of the marijuana.
In his SAG, Matthew attached his motion to suppress and supporting memorandum, which argued that the search warrant was invalid because the officers entered his property without a warrant in order to effectuate a warrantless misdemeanor arrest of his son, Cody. However, Matthew does not challenge the probable cause for Cody's arrest on appeal and we do not address this issue further.
We presume that an affidavit supporting a search warrant is valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Atchley, 142 Wn.App. 147, 157, 173 P.3d 323 (2007). Under the Fourth Amendment, factual inaccuracies or omissions in a warrant affidavit may invalidate the warrant if the defendant establishes that they are necessary to the finding of probable cause and made knowingly, intentionally, or with reckless disregard for the truth. U.S. Const. amend. IV; Franks, 438 U.S. at 155-56; State v. Chenoweth, 160 Wn.2d 454, 462, 158 P.3d 595 (2007); Atchley, 142 Wn.App. at 158 (citing State v. Garrison, 118 Wn.2d 870, 874, 827 P.2d 1388 (1992)); State v. Sweet, 23 Wn.App. 97, 100-01, 596 P.2d 1080, review denied, 92 Wn.2d 1026 (1979). "If the defendant succeeds in showing a deliberate or reckless omission, then the omitted material is considered part of the affidavit." Atchley, 142 Wn.App. at 158 (citing Garrison, 118 Wn.2d at 873). "'If the affidavit with the matter deleted or inserted, as appropriate, remains sufficient to support a finding of probable cause, the suppression motion fails and no hearing is required.'" Atchley, 142 Wn.App. at 158 (quoting Garrison, 118 Wn.2d at 873).
"A search warrant may issue only upon a determination of probable cause." Atchley, 142 Wn.App. at 161 (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)). "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." Atchley, 142 Wn.App. at 161 (citing State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). "In determining probable cause, the magistrate makes a practical, commonsense decision and is entitled to draw reasonable inferences from all the facts and circumstances set forth in the affidavit." Atchley, 142 Wn.App. at 161 (citing State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004)).
Here, information regarding the timing of the police's seizure of the gun, the location of the padlock door and vent in relation to the house, and the location of the "No Trespassing" signs is immaterial to the magistrate's determination of probable cause prior to issuing the search warrant to permit the officers to search the outbuilding to investigate the source of the marijuana smell. Atchley, 142 Wn.App. at 161. A statement by an officer with training and experience in investigating marijuana grow operations and who is so familiar with the odor of growing marijuana that he actually detected the odor of marijuana, is sufficient evidence to support a finding of probable cause. Cole, 128 Wn.2d at 289 (because affiant stated he had been an officer for over two years, had been involved with marijuana grow operations within that time, and was familiar with the smell of growing marijuana, affidavit supported finding of probable cause (citing State v. Olson, 73 Wn.App. 348, 356, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994))). Deputy Robinson stated that he had training and experience investigating both unburned and burned marijuana. Robinson stated that he and other officers smelled "the strong odor of unburnt marijuana" near the outbuilding, and that he noticed the odor was strongest next to a vent. CP at 27. He could "hear fans running behind the locked door, which are commonly used, to ventilate marijuana grows." CP at 27.
The search warrant for Matthew's property was based on information that Deputy Robinson discovered while lawfully searching for Cody following a citizen's report that he was discharging a firearm from his truck. See Atchley, 142 Wn.App. at 157. Because the facts contained in Robinson's affidavit were sufficient to establish a reasonable inference that evidence of criminal activity could be found in the outbuilding and because Matthew fails to show that Robinson's factual omissions were deliberate or reckless, we hold that the search warrant was valid. Franks, 438 U.S. at 155-56; Cole, 128 Wn.2d at 289; Atchley, 142 Wn.App. at 158, 161. Because we hold that the search warrant was valid, we do not address Matthew's remaining "warrantless" search argument.
Accordingly, we affirm the trial court's order denying Matthew's motion to suppress evidence, and Matthew's convictions for unlawful manufacture of marijuana and fraudulent production of or tampering with medical marijuana documentation.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: VAN DEREN, J. WORSWICK, A.C.J.