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State v. Ellis

Court of Appeals of Washington, Division 3

January 9, 2014

The State of Washington, Respondent,
v.
Daniel K. Ellis, Appellant

Appeal from Spokane Superior Court. Docket No: 12-1-00764-1. Date filed: 11/05/2012. Judge signing: Honorable Salvatore F Cozza.

Susan M. Gasch (of Gasch Law Office ), for appellant.

Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey and Andrew J. Metts III, Deputies, for respondent.

AUTHOR: Stephen M. Brown, J. Laurel H. Siddoway, A.C.J., George B. Fearing, J. concurred.

OPINION

Page 1248

Brown, J.

[178 Wn.App. 802] ¶ 1 Daniel K. Ellis appeals his conviction for second degree unlawful firearm possession, contending the trial court erred in denying his suppression motion. He contends the search warrant lacked probable cause to believe [178 Wn.App. 803] his marijuana growing operation was criminal, considering tensions between the Uniform Controlled Substances Act (CSA), chapter 69.50 RCW, and the Washington State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW. We disagree with him and affirm.

FACTS

¶ 2 The facts are undisputed. In March 2012, Spokane County Sheriff's Deputy Mark Benner visited Mr. Ellis's residence to arrest a third party on local warrants. He smelled a marijuana odor with increasing potency as he approached the house. Because two unfriendly dogs prevented him from accessing the front door, he began looking for another way to contact the residents. Near the garage, he again smelled a marijuana odor and saw a very bright light emitting from the edges of windows mostly covered by black plastic. Peering inside, he saw walling and insulation encompassing about a quarter of the interior space. Based on his training and experience, he believed Mr. Ellis was growing marijuana at his residence.

¶ 3 Deputy Benner submitted an affidavit and obtained a warrant to search the residence for evidence of marijuana manufacturing in violation of the CSA. While executing the search warrant, law enforcement found one active and two inactive marijuana growing rooms, two valid MUCA growing permits, and a loaded shotgun. Mr. Ellis is a convicted felon.

¶ 4 The State charged Mr. Ellis with second degree unlawful firearm possession. He moved to suppress the shotgun under the exclusionary rule, arguing the search warrant lacked probable cause to believe his marijuana growing operation was criminal. The trial court denied the motion in written factual findings and legal conclusions stating:

1. Courts have been struggling with the medical marijuana issues for over a decade.
[178 Wn.App. 804] 2. The state legislature has attempted to fix those issues over time.
3. There is no realistic way for law enforcement to determine if someone is a ...

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