331 P.3d 115
Wash. Ct. App.2014Background
- June–July 2010: Officers flew over Davis’s property and observed two greenhouses; one partially open revealed ~20 large marijuana plants.
- Detective Lewis conducted a second flyover seeing green coloration through covered greenhouse tops and took an aerial photo.
- Lewis obtained a warrant to search the two greenhouses, the house, and a shed on the single-parcel property (residence ~50–70 feet from greenhouses; single access road).
- Execution of the warrant uncovered ~121 growing plants (mostly in greenhouses), processed/packaged marijuana, scales, cash, paperwork in the house, and dried plants in the shed.
- Davis was charged and convicted of manufacture of marijuana; he moved to suppress evidence from the house and shed, arguing (1) the affidavit failed to account for the 2011 MUCA amendments and (2) no nexus linked the greenhouses to the residence/shed.
- Trial court denied suppression; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause given MUCA changes | Davis: Affidavit insufficient because 2011 MUCA amendments (medical exception) could make observed plants lawful | State: 2011 amendments not applicable to 2010 warrant; MUCA affirmative defense does not defeat probable cause | Warrant valid; 2011 MUCA not retroactive and MUCA defenses do not negate probable cause |
| Nexus to search house/shed | Davis: No factual nexus tying greenhouse grow to residence/shed, so search of those structures lacked probable cause | State: Close proximity, single parcel/driveway, ownership, and aerial photo support inference that house/shed were used in operation | Sufficient nexus existed; probable cause to search house and shed affirmed |
Key Cases Cited
- State v. Emery, 161 Wn. App. 172 (discusses standards for reviewing probable cause determinations)
- State v. Maddox, 152 Wn.2d 499 (probable cause requires probability, not prima facie showing; reasonable inferences allowed)
- State v. Thein, 138 Wn.2d 133 (warrant must show nexus between place searched and evidence; conclusory assertions insufficient)
- State v. Olson, 73 Wn. App. 348 (review limited to information before the magistrate)
- State v. Cole, 128 Wn.2d 262 (warrant issuance requires probable cause)
- State v. Ellis, 178 Wn. App. 801 (medical-use affirmative defense does not negate probable cause for a search)
- State v. Gebaroff, 87 Wn. App. 11 (magistrates may infer where evidence is likely kept, including nearby structures)
- State v. Brown, 166 Wn. App. 99 (statute amendments not applied retroactively)
- State v. Goble, 88 Wn. App. 503 (nexus requirement between criminal activity and place to be searched)