In what might prove to be the “new normal” under Washington law, a Whatcom County judge overturned the warrant issued by a higher court that led to the search and closure of a medical marijuana dispensary in Bellingham in September. Evidence obtained through the warrant may not be used to prosecute the distributor, the judge determined.
While stressing his ruling was specific to the matter before him on Jan. 11, District Court Judge Matthew Elich admitted his decision may reflect the larger reconsideration of the law that must occur following marijuana reform measures enacted by the state Legislature and voters. The legislature in 2011 sought to clarify the medical use of cannabis; in 2012, voters elected to decriminalize the possession of a small amount of marijuana by adults.
Expressing his discomfort with overturning a search warrant issued in Whatcom County Superior Court by Judge Steven Mura, Elich nevertheless found state law clear and unambiguous that legislators intended medical marijuana patients to have access to the drug and that the dispensing of that drug for medical purposes did not constitute a crime. Even courts of limited jurisdiction must apply the law before them, he said.
“The legislature specifically declared that the ‘medical use of cannabis in accordance with the terms and conditions of [the Medical Cannabis Act of 2011] does not constitute a crime,’” Elich read from the statute. “This language is not ambiguous; it is not subject to interpretation. The legislature intended to decriminalize the medical use of cannabis.”
“They intended to decriminalize medical marijuana subject to certain conditions,” Bellingham City Attorney Shane Brady countered. The governor vetoed the sections of the Medical Cannabis Act that described those conditions, specifically the requirement that marijuana patients and dispensaries must be registered. The governor did not veto sections of the law describing the legislative intent of the act, which serves as a guide to understand the intended effect of the operative sections of the law.
On Sept. 11, 2012, Mura issued Bellingham Police a warrant to search a home near Whatcom Falls Park based on an officer’s testimony that the officer had noticed a strong smell of marijuana while jogging past the home. Further investigation suggested additional details that led the officer to believe there was a marijuana grow op on the premises. Based on those details, Mura issued the warrant, which led to the arrest of Nicholas J. Longo, 37, and the seizure of his product.
At the time of his arrest, the possession, distribution, manufacture and delivery of a controlled substance was a crime under state law, Brady observed. It continues to be a federal crime.
“The principle demonstrated by this case was integral to law enforcement actions relating to drug detection in Bellingham and Whatcom County,” Longo’s attorney William Johnston explained in earlier declarations to the court. “Longo’s position—that the 2011 amendments decriminalized the possession and use of medical marijuana by medical marijuana patients—had previously failed in a local court.
“I expected the city and state would fight for the continued viability of the Fry standard, which granted police and law enforcement discretion to arrest medical marijuana patients.”
City prosecutor Brady did reference the Fry standard, a 2010 ruling by the state Supreme Court in response to the arrest of Jason Fry and seizure of his medical marijuana dispensary in Stevens County in 2004. The standard grants police and law enforcement discretion to arrest medical marijuana patients; however, due to ambiguities in law, patients were allowed to use their medical condition as an affirmative defense in court, citing compassionate use, frequently receiving reduced or deferred sentences.
“A simple reading of the Cannabis Act,” Brady noted, “shows that if the patient is not registered, they are left with an affirmative defense and cannot have immunity” from prosecution. “Thus, if there is no registry, it is impossible to have immunity.”
“A lot has changed since 2010,” defense attorney Johnston remarked. “The legislature and voters of Washington have spoken very clearly about this: They want police and law enforcement resources directed toward something other than investigating pot violations.
“The legislature and voters clearly intend for medical marijuana patients to have access to the drug,” Johnston said. “Merely smelling marijuana in the air is insufficient grounds to issue a warrant that closes a business and ends patient access to marijuana.”
“Registration was a key condition of the statutory amendments. The governor vetoed the section creating the registry, which—if enacted—would have provided a quick and convenient method for law enforcement to identify qualified patients and providers,” Elich noted. “That information, pursuant to the vetoed language, would then be included in search warrant affidavits to establish probable cause that the suspect was using marijuana illegally. The veto eliminates that useful law enforcement tool and certainly creates complications for law enforcement, but it does not change the legislative intent.”
The legislature was well aware the governor had vetoed sections of their law, Elich observed, but they did not withdraw the act. The conclusion, he said, must be that the legislature intended patients to have access to medical marijuana and that activities related to that are not, in themselves, strictly a crime.
“The cops are angry; prosecutors are angry,” Johnston commented afterward. “For years they’ve thought of and treated these patients as criminals. They’ve chased after low-hanging fruit. But the voters have been clear they do not want them treated as criminals. Police and courts are having a hard time getting past that.
“Why is Bellingham city government still spending money prosecuting these cases when the message from the state has been so clear?” Johnston asked.
Brady said the city had not decided whether to appeal the ruling.
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