Oral Argument: February 6, 2014.
PUBLISHED IN PART
Appeal from Douglas Superior Court. Docket No: 09-1-00167-1. Date filed: 09/24/2012. Judge signing: Honorable John Hotchkiss.
Frank L. Cikutovich (of Stiley & Cikutovich ), for appellant.
Steven M. Clem, Prosecuting Attorney, and Walter G. Edgar, Deputy, for respondent.
AUTHOR: Kevin M. Korsmo, J. WE CONCUR: Stephen M. Brown, A.C.J., George B. Fearing, J.
[181 Wn.App. 758] ¶ 1 -- The trial court excluded Paul Browne's medical marijuana defense because he had more plants than were permitted by the Washington Administrative Code (WAC). We conclude this was error under the facts of this case and remand the case for a new trial.
¶ 2 Mr. Browne was the designated medical marijuana provider for his son, Daniel DeHart-Browne. Mr. DeHart-Browne suffers from cyclical vomiting syndrome. The disease would frequently hospitalize him. Mr. Browne was also his son's daily caregiver and saw to his everyday needs. Mr. Browne grew medical marijuana for his son and was typically able to harvest anywhere between a fourth of a pound to a full pound of useable medical marijuana from his annual harvest in September and October.
¶ 3 Mr. DeHart-Browne and Mr. Browne live in a rural Douglas County location. Mr. DeHart-Browne's mother  lives on the same
property although in a different structure. In 2008, a drug task force had searched the property pursuant to a warrant and seized marijuana plants. Mr. DeHart-Browne was arrested but was released once he [181 Wn.App. 759] showed his medical marijuana authorization. The police returned six plants to Mr. DeHart-Browne along with the marijuana he had drying at the time. Mr. Browne was out of the country at the time of this search.
¶ 4 On August 20, 2009, Douglas County Sheriff's Deputy Rich Poppie, a " certified marijuana spotter," flew over the property in a fixed wing aircraft and took photographs. The information he supplied to Detective Tim Scott was presented to a court commissioner who authorized a search of the property. The deputies seized 88  growing marijuana plants. The next day the court commissioner authorized the destruction of the plants other than a small sample to be preserved for evidentiary purposes.
¶ 5 The prosecutor filed a single count of unlawful manufacture of marijuana. Mr. Browne moved to dismiss the charges, arguing that the search warrant affidavit lacked probable cause and that the destruction of the plants violated his due process rights. He attached an affidavit from Gary Ackerson, a cannabis expert. Mr. Ackerson explained that the plants needed to be preserved in order to determine which ones were female plants capable of producing medical marijuana, which ones were " useless male" plants, and the condition of the female plants. In his opinion, the photographs were inadequate to convey the necessary information.
¶ 6 The defense brought an additional motion for a Franks  hearing on the basis that the 2009 search warrant affidavit made no mention of the 2008 search and the resulting knowledge of Mr. DeHart-Browne's authorized marijuana use. After a hearing, the court denied the request.
¶ 7 The court subsequently took up the motion to dismiss. The court denied the motion, ruling that the 15 plant limit [181 Wn.App. 760] established in the administrative code included plants at each stage of development and could not be exceeded. Given the size of this grow operation, the defense was not available. Thus, much of Mr. Ackerson's testimony was irrelevant and the destroyed plants therefore had no exculpatory value.
¶ 8 The court then heard a series of motions in limine from the prosecution. The court ruled that Mr. Ackerson was a qualified " expert on growing medical marijuana," but excluded his testimony because his affidavit had already established he could not opine on the amount of usable marijuana from the seized plants. The court clarified its previous ruling and stated that the WAC did not permit a defendant to overcome the presumptive 15 plant limit with evidence that the patient needed more than that number of plants for necessary medical use. A defendant would be able to present appropriate testimony that a patient's 60-day supply could exceed 24 ounces of marijuana if the amount was medically necessary for the patient.
¶ 9 Mr. Browne sought discretionary review of these rulings. This court declined to accept interlocutory review. The parties then agreed to a stipulated trial in order to facilitate appellate review. The trial court encouraged the appeal in order to ...