State of Washington v. Douglas John Nelson

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! 	FILED
t 	JULY 3,2014
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, 	) 	No. 31760-9-111
)
Appellant, 	)
)
v. 	)
)
DOUGLAS JOHN NELSON, 	) 	UNPUBLISHED OPINION
)
Respondent. 	)
KORSMO, 1. - 	The trial court dismissed this prosecution in reliance on a federal
trial court opinion. We subsequently issued a contrary opinion and now reverse and
remand for trial in accordance with our earlier decision.
FACTS
In February 2012, officers from the city of Spokane obtained search warrants to
search two houses connected to Douglas Nelson. The search warrant affidavits for the
two houses described facts consistent with indoor marijuana growing. However, the
affidavit said nothing about whether officers had reason to believe that Mr. Nelson was
growing marijuana in violation of the medical marijuana laws. The affidavit did not
address medical marijuana at all.

No. 3 I 760-9-III
State v, Nelson
A search of these two residences returned a large amount ofmarijuana. The State
charged Mr. Nelson with one count of unlawful manufacture of marijuana and one count
of unlawful possession of marijuana with intent to deliver.
Mr. Nelson filed a motions to suppress the marijuana found during the searches
and to dismiss the charges. He argued that the search warrant failed to allege that a crime
had been committed because the affidavit did not allege that the marijuana was being
grown at the residences in violation of Washington's medical marijuana statutes. 	The
primary basis for this motion was a ruling from the United States District Court that, in
light of the state decriminalization of medical marijuana, required search warrant
affidavits to allege a violation of Washington's medical marijuana statutes. The superior
court agreed with the federal ruling, suppressed the marijuana as the fruit of an unlawful
search and seizure, and dismissed the charges for lack of evidence. The State then
appealed to this court.
ANALYSIS
This case presents a single question of law for review: Do the 20 II amendments
to Washington's medical marijuana statutes, which decriminalized the medical use of
marijuana, require law enforcement officers to allege a violation of the medical marijuana
statutes in order to establish probable cause that a crime has been committed?
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j
No. 31760-9-111
'; 	State v. Nelson
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At oral argument, both sides agreed that our recent decision in Ellis controls the
outcome of this appeal. State v. Ellis, 178 Wn. App. 801,2014 WL 2118650, review
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denied, No. 89928-2 (Wash. June 6, 2014). In Ellis, we noted that the Uniform
Controlled Substances Act (UCSA), chapter 69.50 RCW, generally criminalizes all
possession and manufacture of marijuana, while the Medical Use of Cannabis Act
(MUCA), chapter 69.51A RCW, decriminalizes the same thing if certain requirements
are met. ld. at 806. Interpreting these two acts together and looking at the MUCA's
legislative history, we concluded that "the MUCA exception applies to marijuana-based
arrests, prosecutions, and criminal sanctions, but not searches." ld. at 807. 	We then held
that a search warrant affidavit only needs to establish probable cause to believe that a
suspect violated the UCSA, and does not need to also establish the suspect's
noncompliance with the MUCA. ld. at 807-08. 	We also expressly disagreed with a
federal trial court decision, subsequently reversed by the Ninth Circuit, that Mr. Nelson
successfully had relied upon in the trial court. ld.
Adhering to Ellis, we hold that the lower court erred as a matter of law when it
granted Mr. Nelson's motions to suppress the marijuana and dismiss the charges.
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No. 31760-9-III
State v. Nelson
Accordingly, we reverse and remand for further proceedings.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
I CONCUR:
~/~!FSiddoway, C.J.
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No. 31760-9-111
FEARING, J. (concurring) - 	1concur in the majority's opinion based upon my
concurrence in State v. Ellis, 178 Wn. App. 801,2014 WL 2118650, review denied, No.
89928-2 (Wash. June 6, 2014).
~ 	J.
Fearin~1
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