[No. 25524-7-III. Division Three. January 8, 2008.]
[1] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. A trial court's conclusions of law entered in support of a ruling on a motion to suppress evidence in a criminal trial are reviewed de novo. [2] Criminal Law — Evidence — Suppression — Findings of Fact — Failure To Assign Error — Effect. Unchallenged findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence in a criminal trial are verities on appeal. [3] Searches and Seizures — Warrant — Probable Cause — Determination — In General. A search warrant may issue only upon a magistrate's finding of probable cause based on averments made by affidavit of sufficient facts and circumstances establishing that criminal activity is occurring and that evidence of such criminal activity will be found at the place to be searched. [4] Searches and Seizures — Warrant — Probable Cause — Determination — Odor of Marijuana. The detection of the odor of marijuana by a police officer who is trained and experienced in marijuana detection is sufficient, by itself, to establish probable cause for the issuance of a warrant to search for evidence of marijuana possession or manufacture. [5] Controlled Substances — Marijuana — Medical Use Act — Affirmative Defense — In General. Medical authorization for marijuana use is an affirmative defense under former RCW 69.51A.040(1) (1999) of the Medical Use of Marijuana Act. [6] Criminal Law — Defense — Affirmative Defense — Stage of Proceeding. Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings. [7] Controlled Substances — Marijuana — Medical Use Act — Negation of Probable Cause for Search — Investigation by State. A person's mere production of a document purporting to be a marijuana use authorization does not provide automatic protection against a reasonable police investigation and search into suspected marijuana possession or manufacture and does not prohibit further investigation by the State. [8] Controlled Substances — Marijuana — Medical Use Act — Affirmative Defense — Stage of Proceeding. The viability of the affirmative defense of medical use of marijuana is an issue for trial and is not an issue for police officers to consider in the course of investigating suspected marijuana possession or manufacture. [9] Controlled Substances — Marijuana — Medical Use Act — Affirmative Defense — Issues of Law — Review — Standard of Review. Questions of law concerning the affirmative defense of medical use of marijuana are reviewed de novo. [10] Controlled Substances — Marijuana — Medical Use Act — Affirmative Defense — Burden of Proof — Degree of Proof. A defendant asserting the affirmative defense of medical use of marijuana must show by a preponderance of the evidence that he or she meets the requirements of the Medical Use of Marijuana Act (chapter 69.51A RCW). [11] Controlled Substances — Marijuana — Medical Use Act — Affirmative Defense — Qualifying Patient — Severe Anxiety or Anger. Under the Medical Use of Marijuana Act (chapter 69.51A RCW) and the rules adopted by the State Medical Quality Assurance Commission in furtherance of the act, severe anxiety and anger are not qualifying conditions for the lawful use of marijuana. Nature of Action: Prosecution for unlawful manufacture of a controlled substance and unlawful possession of more than 40 grams of marijuana. Superior Court: After denying the defendant's motion to suppress evidence, granting the State's motion in limine to exclude the defendant's medical use of marijuana defense, and dismissing the charge of unlawful manufacture, the Superior Court for Stevens County, No. 05-1-00023-1, Allen Nielson, J., entered a judgment of guilty on September 19, 2006. Court of Appeals: Holding that the defendant's production of a marijuana use authorization did not negate a determination of probable cause for the issuance of the warrant to search his residence and that the defendant was not a qualifying patient and could not avail himself of the affirmative defense of medical use of marijuana, the court affirms the judgment. William D. Edelblute-, for appellant. John G. Wetle-, Prosecuting Attorney, and John A. Troberg-, Deputy, for respondent. ¶1 SCHULTHEIS, J. — Following the denial of a suppression motion, Jason Lee Fry was convicted on stipulated facts of possession of over 40 grams of marijuana. On appeal, he contends his production of an authorization for medical use of marijuana negated probable cause to search his house. He also asserts the trial court erred in rejecting his proposed defense under the Washington State Medical Use of Marijuana Act (Act), chapter 69.51A RCW. We affirm. FACTS ¶2 The facts are undisputed. On December 20, 2004, Stevens County sheriff's deputies went to Mr. Fry's house after obtaining information that he was growing marijuana. As officers approached the front porch, they could smell marijuana. When Mr. Fry opened the front door, the odor of marijuana was even stronger. Mr. Fry told the officers he had a prescription for marijuana and asked them to leave. His wife produced a document entitled "Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State" for Mr. Fry. Clerk's Papers (CP) at 8. The authorization stated that marijuana may help Mr. Fry's "severe anxiety, rage, & depression related to childhood." CP at 9. ¶3 Officers obtained a search warrant and found several containers of marijuana and numerous marijuana plants. The seized amount totaled more than two pounds (911 grams). The State charged Mr. Fry with manufacturing marijuana and possession of more than 40 grams of marijuana. ¶4 Mr. Fry moved to suppress the evidence, arguing that once the officers were shown the medical use document, probable cause for the search no longer existed. The State countered that medical use of marijuana under the Act is an affirmative defense for trial, not a defense to probable cause. ¶5 The court denied Mr. Fry's motion, finding the odor of marijuana provided probable cause to search his home and any evidence found as a result could either support or refute the medical marijuana affirmative defense. It also found that an affirmative defense does not negate probable cause, reasoning that such defenses are for the trier of fact not for earlier stages in the proceedings. The court granted Mr. Fry's request for a stay pending his motion for discretionary review. A commissioner of this court denied Mr. Fry's motion for discretionary review. ¶6 The State moved in limine to exclude the medical use defense, arguing that Mr. Fry was not a qualifying patient under the Act because severe anxiety is not a terminal or debilitating condition as defined by the Act. The trial court excluded use of the defense. Following a bench trial on stipulated facts, Mr. Fry was convicted of possession of over 40 grams of marijuana. The manufacture of marijuana charge was dismissed. DISCUSSION ¶7 We first address Mr. Fry's contention that the trial court erred in ruling that officers had probable cause to search his house after he produced medical authorization for marijuana use. Mr. Fry argues that his production of a medical use certificate negated probable cause for the search. Citing McBride v. Walla Walla County, 95 Wn. App. 33, 40, 975 P.2d 1029, 990 P.2d 967 (1999), the State counters that the medical use affirmative defense does not negate probable cause. Rather, the defense is to be determined by a judge or jury at trial, not law enforcement. selfdefense is an affirmative defense which can be asserted to render an otherwise unlawful act lawful. But the arresting officer does not make this determination. The officer is not judge or jury; he does not decide if the legal standard for selfdefense is met. Moreover, [the arresting officer] had only one side of the story. Mr. McBride's claim of selfdefense was then a mere assertion, not fact. The selfdefense claim did not vitiate probable cause. Id. at 40. ¶11 This reasoning applies here. Information relating to the validity of a suspect's medical use defense will almost always be within the defendant's knowledge. The defendant's assertion of the defense is not necessarily a fact; further development of the facts at trial may well show that the medical use defense is not viable. Therefore, the mere production of a document purporting to be a marijuana use authorization does not prohibit further investigation by the State. Here, probable cause to search Mr. Fry's house existed as soon as officers smelled marijuana. His production of a medical use document did not provide automatic protection against a reasonable police investigation and search. Whether the affirmative defense of medical use of marijuana was viable was an issue for trial. ¶13 Former RCW 69.51A.040(1) states, "any qualifying patient who is engaged in the medical use of marijuana . . . will be deemed to have established an affirmative defense to . . . charges [of violating marijuana law] by proof of his or her compliance with the requirements provided in this chapter." Under this statute, a qualifying patient means a person who: (a) Is a patient of a [licensed] physician . . . ; (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. RCW 69.51A.010(3). ¶14 The trial judge prevented Mr. Fry from bringing the defense on the ground that his condition was not a terminal or debilitating medical condition under the Act. A terminal or debilitating medical condition includes: (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or (c) Glaucoma . . . ; (d) Any other medical condition duly approved by the Washington state medical quality assurance board [commission] as directed in this chapter. Former RCW 69.51A.010(4) (1999) (alteration in original). ¶16 But Mr. Fry's reliance on Shepherd is misplaced. In that case, the defendant suffered from a debilitating spine condition. His physician's authorization for medical use stated that he was treating the defendant for a " 'terminal illness or debilitating condition as defined in RCW 69.51A.010' " but declined to specify the condition. Id. at 547. However, the Shepherd court was not asked to determine whether Mr. Shepherd's condition qualified under the Act. In fact, it appears the parties did not dispute that the defendant suffered from a debilitating condition. Shepherd is not instructive here. ¶18 Affirmed. SWEENEY, C.J., and BROWN, J., concur.