{"id":3770,"date":"2010-03-24T06:57:32","date_gmt":"2010-01-25T08:42:32","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-01-25T08:42:32","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3770","title":{"rendered":"WA: MMJ authorization did not negate PC for marijuana"},"content":{"rendered":"

Telephonic search warrant was validly issued for defendant’s house on smell of burning marijuana. Defendant’s production of a medical marijuana authorization before the search did not negate probable cause because it was an affirmative defense to possession. State v. Fry<\/a>, 168 Wn. 2d 1 (2010) (dissent<\/a>):<\/p>\n

There is no contention that the facts, including the information and smell of marijuana, do not support a finding of probable cause to search the Frys’ residence. However, Fry contends the probable cause was negated once he produced the authorization. Although there was a later dispute over the validity of the authorization, there is no indication in the record that the officers or the magistrate questioned the validity at the time the search warrant was issued. Nevertheless, the officers’ search and arrest were supported by probable cause, and a claimed authorization form does not negate probable cause.<\/p>\n

. . .<\/p>\n

Possession of marijuana, even in small amounts, is still a crime in the state of Washington. See RCW 69.50.4014. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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