Affirmative Defense Rises and Lawful Use Falls

Edit: The matter is now settled. Affirmative Defense is all that remains: See our review here.

In the past, Courts interpreted the medical cannabis statue not to prohibit the arrest of those found with medical cannabis, but to provide for their eventual exoneration through court proceedings. This was later interpreted in the case State v. Fry.  This would mean that one has only an affirmative defense and no protection from arrest or prosecution for the medicinal use of cannabis. Shortly after that case, the floodgates opened and citizens that used cannabis medicinally were arrested whether they had authorizations or not. The theory of the police: let the prosecutor figure it out. The theory of the prosecutor: let the jury figure it out. The theory of the jury (usually): what an epic waste of time. In an effort to correct this issue, which led to the arrest without prosecution of hundreds of medical marijuana patients, the legislature, in 2011, amended the medical cannabis statute to provide that:

(a) Qualifying patients with terminal or debilitating medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of cannabis, shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of cannabis, notwithstanding any other provision of law…

Further, the legislature provided in a separate section that, assuming a qualifying patient was in compliance with the amount of marijuana allowed by the statute,

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….

A New Hope

Setting aside Gregoire’s gutting the 2011 legislative bill, there is no doubt that a potential criminal penalty inherent in the former iteration of the medical cannabis laws was repealed. This was recognized by the Washington Supreme Court on September 19, 2013. The court held that the 2011 law amends 69.50A and “makes qualifying marijuana a legal use, not simply an affirmative defense.”  State v. Kurtz.  Because qualifying patients are legally in possession of and, in some cases, growing marijuana, there is no possibility that a crime is occurring and similarly no evidence to support probable cause for an arrest, issuance of a warrant, or any other criminal sanctions against a qualifying patient. That is arrest protection.

While it was once the case that medical marijuana patients and their designated providers could be arrested and then must prove their innocence through an affirmative defense, we would argue that the legislature has made a clear an unequivocal amendment to the medical marijuana statute that should prevent medical marijuana patients from being arrested and charged for the medical use of marijuana under the supervision of a health care professional.  By amending RCW 69.50A, the Washington State Legislature withdrew its grant of authority to the state government to arrest or seize property from individuals who qualified as medical cannabis patients or their designated providers for possession of marijuana within the limits set by the statute.

In a United States District Court case on the other side of the state, the Court found that officers had done no investigation into whether the subjects of a search were in fact medical cannabis patients prior to securing a warrant to search a home, and that the warrant was silent on the medical cannabis status of the defendants.  The Court observed that State officers cannot obtain a valid search warrant where there is not probable cause of a state crime. The Court held that this omission was “fatal to the warrant as the warrant does not then show probable cause of a crime.”  United States v. Knyaston, (May 31, 2012). Sadly, the Knyaston decision does not control state cases and was later determined to be valid under the good faith doctrine (good faith doctrine would not apply in a state case). The decision is nonetheless instructive. Under the same legal theory, defense lawyers began arguing and cases were being appealed around the State that marijuana use is lawful.

Affirmative Defense Strikes Back

The first blow came in January, 2014, in a Division III opinion, State v. Ellis, in accordance with Fry, held that an affidavit supporting a search warrant presents probable cause to believe a suspect committed a Controlled Substances Act violation where it sets forth enough details to reasonably infer the suspect is growing marijuana on his or her property, and further held that the affidavit need not also show the Medical Use of Cannabis Act exception’s inapplicability.  The second blow came this last month with the Division I decision(s). Division I heard City of Kent and two companion cases where the State argued for affirmative defense and prevailed. In short, all three cases fell in line with Ellis.

The Court in Kurtz specifically found that qualifying medical marijuana use was a “legal use.”  After a full historical analysis of the previous affirmative defense, the court ends by saying that medical cannabis use, under the new law was legal. However, Division I and III have  taken this as dicta and not binding.

Nobody likes bad news. We still maintain that the Washington Supreme Court and the legislature have declared qualifying medical use of marijuana a legal use and have stated that no criminal or civil sanctions shall flow therefrom.  Regardless of its desire to do so, the appellate courts should not have ignored the Supreme Court’s analysis of the law. Yet, here we are. All these cases are up on appeal in the Washington Supreme Court. We look forward to the Supreme Court providing clarity to the murky waters. Stay tuned for the final chapter.

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