WA: State failed to defend search issue on appeal relying on harmless error and lost

The state contended that the search issue was of no consequence because the defendant admitted possession and growing of marijuana, but this was a medical marijuana case. The search should have been suppressed, and defendant made out his MMJ defense. Case reversed and dismissed. State v. Shupe, 172 Wn. App. 341, 289 P.3d 741 (2012)*:

¶21 The State contends (apparently) that Mr. Shupe’s objections to the search warrant for 726 West Mansfield Avenue and 904 East Eleventh Avenue are of no moment because Mr. Shupe admitted that he was guilty of the crimes charged. Resp’t’s Br. at 7. The State relies on Mr. Shupe’s closing argument: “Mr. Shupe admits he possessed marijuana. Mr. Shupe admits he delivered marijuana. Mr. Shupe admits he manufactured it.” Report of Proceedings (RP) at 552. The State’s contention misses Mr. Shupe’s essential point, which as we understand it, is that he possessed, sold and manufactured marijuana legally—that is as medical marijuana. Indeed, the State saw “no reason to deal with the defendant’s search warrant sufficiency issues as they have no relevance to the outcome of this case.” Resp’t’s Br. at 7. Why that is so is a bit obtuse.

. . .

Harmless error

¶32 Failure to suppress evidence obtained in violation of a defendant’s Fourth Amendment rights is constitutional error and is presumed to be prejudicial. State v. Tan Le, 103 Wn. App. 354, 367, 12 P.3d 653 (2000). The State bears the burden of demonstrating the error is harmless. Id. Constitutional error is harmless only if the State shows beyond a reasonable doubt that any reasonable jury would have reached the same result without the error. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).

¶33 The State made no attempt to address the issues surrounding the search warrant in the brief it filed here on appeal. And we are left then to conclude that there was no probable cause to support the search of 726 West Mansfield Avenue or 904 East Eleventh Avenue.

. . .

¶49 Mr. Shupe has established a prima facie case to support a medical marijuana defense. The State presented no evidence to rebut that defense.

¶50 We reverse the convictions and dismiss the prosecution.