Opinion
No. 36433-6-II.
July 29, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 07-1-00212-7, James E. Warme, J., entered June 14, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
Valerie Johnson appeals her conviction for violation of the Uniform Controlled Substances Act — possession of morphine. She argues that the trial court erred in denying her motion to suppress evidence that she illegally purchased morphine from the Cowlitz-Wahkiahum Narcotics Task Force (Task Force) because detectives illegally obtained the morphine tablets that were sold to her. We affirm.
FACTS
The facts in this case were presented through a police report. A confidential informant approached Task Force officers and informed them that Johnson wanted to purchase morphine without a prescription. Detectives purchased 23 30mg morphine sulfate tablets from a local pharmacist and gave the pharmacist a receipt on Task Force letterhead. Task Force officers then sold 20 of the 23 tablets to Johnson on February 14, 2007. The officers arrested Johnson and the State charged her with possession of morphine.
Johnson moved to suppress the drug evidence, arguing that the detectives illegally obtained the morphine tablets by failing to first obtain a prescription or court order. The trial court denied the motion, finding that the officers obtained the tablets "as part of a law enforcement drug investigation." Clerk's Papers (CP) at 44. After a stipulated bench trial, the trial court found Johnson guilty as charged. The trial court sentenced Johnson within the standard range. Johnson now appeals.
ANALYSIS
Johnson argues that the detectives acquired the morphine feloniously when they obtained the drugs without a court order or prescription; thus, the trial court should have excluded the evidence. Johnson also argues that the trial court should have suppressed the evidence because the detectives' manner of acquiring the drugs constituted misconduct that violated her right to due process. These arguments fail.
The factual findings support the trial court's conclusion that the detectives "acquired the controlled substance — morphine sulfate — from a licensed pharmacist in the State of Washington as part of a law enforcement drug investigation." CP at 44. Although Johnson has not submitted the police report from which the above facts were taken, sufficient record exists to support appellate review.
This "finding" is really a conclusion of law. The phrase "as part of a law enforcement drug investigation" carries legal implications, so we will treat it as a conclusion of law. CP at 44; Para-Medical Leasing, Inc. v. Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987). See also State v. Hutsell, 120 Wn.2d 913, 918-19, 845 P.2d 1325 (1993); Thweatt v. Hommel, 67 Wn. App. 135, 141-42 n. 7, 834 P.2d 1058 (1992).
The trial court entered findings of fact regarding the detectives' conduct in obtaining the morphine and Johnson does not dispute these facts. She assigns no error to any findings, and her counsel admitted at the suppression hearing that the parties did not dispute any facts. The facts are not in dispute, then, that the officers obtained morphine from a pharmacist without a valid prescription. Additionally, the State admits in its brief that while the record is not complete, "the findings and conclusions at CP 43-45 may be able to support appellate review of the appellant's claim . . ." Resp't's Br. at 4. We find that Johnson has not failed to perfect the record.
RCW 69.50.4013(1) states:
It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
Morphine is a Schedule II controlled substance. RCW 69.50.206(b)(1)(xiii). The Uniform Controlled Substances Act does not, however, impose liability "upon any authorized state, county or municipal officer engaged in the lawful performance of his duties." RCW 69.50.506(c). The State had to prove, then, that the officers were (1) authorized officers and (2) engaged in the lawful performance of their duties. RCW 69.50.506(a); State v. McReynolds, 80 Wn. App. 894, 899, 912 P.2d 514 (1996).
McReynolds is not directly on point, but does set out the elements of the statutory exception. McReynolds examined whether a confidential informant was entitled to jury instructions on the exception where he sold drugs without law enforcement authority. McReynolds, 80 Wn. App. at 899-90.
The trial court found, and Johnson did not challenge, that the officers involved "sought to conduct a sale of controlled substances to [Johnson]," obtained the morphine sulfate "from a licensed pharmacist . . . as part of a law enforcement drug investigation," and provided the pharmacist with a "written receipt on Cowlitz-Wahkiakum Narcotics Task Force letterhead." CP at 43-44. The receipt itself stated that the tablets were acquired as part of "an active drug investigation." CP at 44. Finally, the trial court found that the officers used the tablets "in a controlled sale involving [Johnson]." CP at 44.
The findings support the trial court's conclusion that the officers obtained the morphine as part of a law enforcement drug investigation. Because this is permitted under RCW 69.50.506, the trial court did not err in refusing to exclude the evidence and the officers' conduct did not violate Johnson's right to due process. We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and HUNT, J. concur.