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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40491-5-II

                             Respondent,

       v.

MATTHEW COLT CHAPMAN,                                      UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --     After a bench trial on stipulated facts, the trial court found 

Matthew Colt Chapman guilty of unlawful manufacture of marijuana in violation of the Uniform 

Controlled Substances Act,1 RCW 69.50.401(1), and in a separate jury trial, a jury found him 

guilty of fraudulent production of or tampering with medical marijuana documentation in violation 

of former RCW 69.51A.060(5) (1999).  Matthew2 appeals his conviction, asserting that he was a 

"qualifying patient" under  former  RCW 69.51A.010(3) (1999), even though his authorization 

card was expired the first time he presented it to a police officer.  Matthew also asserts that the 

trial court erred in denying him the opportunity to raise a complete medical marijuana affirmative 

1 Ch. 69.50 RCW.

2 We refer to members of the Chapman family by their first names for the sake of clarity.  We 
intend no disrespect. 

No. 40491-5-II

defense under former RCW 69.51A.040 (1999).  In a statement of additional grounds (SAG),3

Matthew asserts that the trial court erred when it denied his motion to suppress evidence seized 

following execution of a search warrant, alleging that the police officer made misrepresentations 

and omissions in the search warrant application that render the search warrant invalid.  We affirm.

                                            FACTS

       On December 30, 2007, a woman called 911 to report a man shooting a handgun out of 

his truck window and into the air.  The woman told the dispatcher that the man's name was 

"Cody Chapman" and that he was driving a white pickup truck.  1 Report of Proceedings (RP) at 

9.  Officers from the Cowlitz County Sheriff's Office and the Castle Rock Police Department 

responded.  The officers searched for Cody along the driveway to the house, in a white truck, an 

outbuilding or barn, and the house.  

       Inside the truck, Cowlitz County Sheriff's Deputy Cory Robinson saw the gun the woman 

had described on the passenger seat.  Robinson secured the gun which did not have a magazine or 

any ammunition  rounds in it.  Robinson, Castle Rock Police Officer Brandon McNew, and 

Cowlitz County Sheriff's Deputy Brent Harris saw a light inside the outbuilding.  As they 

approached the outbuilding, the officers could smell unburned marijuana.  The officers looked 

through an open outside door and saw a second door inside the outbuilding with several padlocks 

on it.  The officers announced their presence, received no reply, and went around the back of the 

outbuilding to investigate the source of the unburned marijuana smell.  

       Cowlitz County Sheriff's Deputies Robert Brewer and Harris knocked on the door of the 

house and Cody's mother answered, followed closely by his father, Matthew.  Brewer asked if 

3 RAP 10.10.

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No. 40491-5-II

Cody was home, entered the house, and arrested Cody for reckless endangerment.  While Cowlitz 

County Sheriff's Deputy Lisa Uhlich secured the Chapmans' property, Deputy Robinson obtained 

a search warrant to search the outbuilding.  

       Matthew gave Deputy Uhlich his medical marijuana authorization card.  Uhlich noted that 

the expiration date had been altered from "April 27, 2007," to  "April 27, 2008," to which 

Matthew replied, "Oh, really?"  Ex. 2; 2 RP at 257.  Matthew stated that he was "just trying to be 

legal." 2 RP at 258.  Cowlitz County Sheriff's Deputy Fred Taylor took photographs and video 

of the growing marijuana in the outbuilding.4  

       On January 10, 2008, Matthew obtained another medical marijuana authorization card 

with new start and expiration dates from his physician, Dr. Thomas Orvald.  On June 17, the State 

charged Matthew by information with unlawful manufacture of marijuana in violation of the 

Uniform Controlled Substances Act, RCW 69.50.401(2)(c).  Matthew waived his right to a 

speedy trial and, after several continuances, on July 2, 2009, the State amended the information to 

add a charge of fraudulent production of or tampering with medical marijuana documentation in 

violation of former RCW 69.51A.060(5).  

       Matthew filed a motion to suppress evidence seized pursuant to the search warrant, 

namely the photographs of the growing marijuana, arguing that the warrant was invalid because 

the police did not have probable cause to enter his property and the affidavit contained material 

misrepresentations and omissions.  At a hearing on the motion to suppress on March 26, 

4 The Department of Health imposed guidelines, effective November 2, 2008, defining the 
quantity of marijuana that could reasonably be presumed a 60-day supply.  WAC 246-75-010.  
The amount of marijuana Matthew grew at the time the police discovered his operation is not at 
issue in this case.  RCW 10.01.040; State v. Kane, 101 Wn. App. 607, 610-11, 5 P.3d 741 
(2000).  

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No. 40491-5-II

following witness testimony given on January 15 and March 26, the trial court denied the motion, 

finding that the officers had probable cause to enter the outbuilding and ruled that the officers'

"incursion into . . . the anteroom for the purpose of clearing it" was proper.  1 RP at 154.    

       During a separate hearing on Matthew's motion in limine, the trial court allowed Matthew 

to raise the affirmative defense that he lawfully possessed and manufactured marijuana because he 

was a "qualifying patient."5 However, during a hearing held the morning of the first day of the 

scheduled jury trial, the trial court denied Matthew's proposed affirmative defense         jury 

instruction, thereby excluding evidence of the new authorization card Matthew received on 

January 10, 2008.  The trial court reasoned that it would not give the jury instruction because 

Matthew's card was expired at the time he handed his altered card to the police, and "the fact that 

it has an expiration date[] indicates a judgment by the physician that the diagnosis and 

authorization is not to be considered as unlimited or unvalid [sic]." 2 RP at 233.  Matthew then 

waived his right to a jury trial on the unlawful manufacture of marijuana charge and stipulated that 

he was growing marijuana on December 30, 2007.  Matthew proceeded to a jury trial on the 

fraudulent document production charge.  

       Following a bench trial, the trial court found Matthew guilty of unlawfully manufacturing 

5 A qualifying patient is a person who
              (a)  [i]s a patient of a physician licensed under chapter 18.71 or 18.57 
       RCW;
              (b) Has been diagnosed by that physician  as having a terminal or 
       debilitating medical condition; 
              (c) Is a resident of the state of Washington at the time of such diagnosis;
              (d) Has been advised by that physician about the risks and benefits of the 
       medical use of marijuana; and
              (e) Has been advised by that physician  that they may benefit from the 
       medical use of marijuana.
Former RCW 69.51A.010(3).

                                               4 

No. 40491-5-II

marijuana.  The trial court declared the first jury trial on the fraudulent document production 

charge a mistrial because of a hung jury.  After a second jury trial, the jury found Matthew guilty 

of fraudulently producing medical marijuana documentation.  The trial court sentenced Matthew 

to 15 days confinement for each count, to be served concurrently.  Matthew timely appeals his 

convictions for unlawfully manufacturing marijuana and fraudulent production of or tampering 

with medical marijuana documentation.  

                                          ANALYSIS

Medical Marijuana Affirmative Defense

       Matthew challenges the trial court's order excluding evidence of his January 10, 2008 

medical marijuana authorization card at trial.  Specifically, Matthew argues that the exclusion 

prevented him from asserting a complete affirmative defense that he was legally growing 

marijuana for medical purposes under former RCW 69.51A.040(1).6 Matthew also contends that 

the trial court erred in excluding as irrelevant his valid authorization card obtained 10 days after 

the police found the marijuana because the card proved that he was a "qualifying patient"

regardless of the authorization expiration date.  The State asserts that Matthew did not comply 

with the requirements of former RCW 69.51A.040 because his authorization was expired at the 

time he presented it to Deputy Uhlich.  The State argues that to dismiss the doctor's one-year 

6 Former RCW 69.51A.040(1) provides,
       If charged with a violation of state law relating to marijuana, any qualifying patient 
       who is engaged in the medical use of marijuana . . . will be deemed to have 
       established an affirmative defense to such charges by proof of his or her 
       compliance with the requirements provided in this chapter.  Any person meeting 
       the requirements appropriate to his or her status under this chapter shall be 
       considered to have engaged in activities permitted by this chapter and shall not be 
       penalized in any manner, or denied any right or privilege, for such actions.   

                                               5 

No. 40491-5-II

authorization limitation would lead to absurd results, such as perpetual validation of documents 

and ignoring doctors'   limitations on treatments.  The State also argues that Matthew's 

authorization card was per se invalid because he had altered it and Matthew should not be 

permitted to benefit from the affirmative defense provided by the statute.7 We agree.  

       We review whether substantial evidence supports the trial court's factual findings, and 

whether those findings support the trial court's conclusion that Matthew failed to present a valid 

authorization card to Deputy Uhlich under former RCW 69.51A.040(2)(c).  State v. Bartolome, 

139 Wn. App. 518, 521-22, 161 P.3d 471 (2007).  We review de novo the question of law of 

whether Matthew complied with former RCW 69.51A.040.  State v. Adams, 148 Wn. App. 231, 

235, 198 P.3d 1057 (2009) (courts review interpretation of a statute de novo (citing State v. 

Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002))).  

Unchallenged findings are verities on appeal.  State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 

(2003) (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)).  

       A qualifying patient is required to "[p]resent his or her valid documentation to any law 

enforcement official who questions the patient regarding his or her medical use of marijuana."  

Former RCW 69.51A.040(2)(c).      Valid documentation is "[a] statement signed by a qualifying 

7 The Washington State legislature amended RCW 69.51A.040, effective July 22, 2011, by adding
a new paragraph, which provides, 
       A qualifying patient . . . who . . . does not present his or her valid documentation 
       to a peace officer who questions the patient . . . regarding his or her medical use of 
       cannabis but is in compliance with all other terms and conditions of this chapter 
       may establish an affirmative defense to charges of violations of state law relating to 
       cannabis. 
Laws of 2011, ch. 181, § 406.  This section does not apply to Matthew.  It was enacted after the 
events and trial at issue here and because he was not in compliance with all other terms of the 
chapter, his authorization card was fraudulently produced in violation of former  RCW 
69.51A.060(5).  

                                               6 

No. 40491-5-II

patient's physician, or a copy of the qualifying patient's pertinent medical records, which states 

that, in the physician's professional opinion, the potential benefits of the medical use of marijuana 

would likely outweigh the health risks for a particular qualifying  patient."   Former  RCW 

69.51A.010(5).  A defendant must obtain and possess valid documentation from a health care 

professional in advance of law enforcement's questioning his medical         marijuana use and 

possession.  State v. Hanson, 138 Wn. App. 322, 327-28, 157 P.3d 438 (2007); State v. Butler, 

126 Wn. App. 741, 750-51, 109 P.3d 493 (2005).  

       The United States Constitution guarantees criminal defendants a meaningful opportunity 

to present a complete defense.  U.S. Const. amend. VI; Holmes v. South Carolina, 547 U.S. 319, 

324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006).  "Criminal defendants have a due process right 

to have their defenses heard."  State v. Fry, 168 Wn.2d 1, 14, 228 P.3d 1 (2010) (Chambers, J., 

concurring) (citing State v. Lord, 161 Wn.2d 276, 301, 165 P.3d 1251 (2007)).  But a criminal 

defendant has no constitutional right to have irrelevant evidence admitted.  Lord, 161 Wn.2d at

294.    

       Here, although Matthew provided expired documentation on the day the police officers 

questioned him about the growing marijuana, he argues that he complied with the statute under 

Hanson by providing the police with valid documentation ten days after the incident and six 

months before he was charged.  Matthew misreads Hanson.  In Hanson, the police executed a 

search warrant on Hanson's motel room while he was not present and seized marijuana plants.  

138 Wn. App. at 325.  The next day, Hanson obtained a valid authorization card from his 

physician to use marijuana for medical purposes.  Hanson, 138 Wn. App. at 325.  The trial court 

refused to admit the authorization card at trial and after a stipulated bench trial, the trial court 

                                               7 

No. 40491-5-II

found Hanson guilty of manufacturing a controlled substance.  Hanson, 138 Wn. App. at 325.  

       Division Three of this court reversed, holding that Hanson satisfied the provisions of the 

statute.  Hanson, 138 Wn. App. at 327.  The court reasoned that the statute does not require that 

a qualifying patient obtain documentation in advance of a police search and seizure, and that 

Hanson provided his documentation the first day he was "questioned" by police, in accordance 

with the statute.  Hanson, 138 Wn. App. at 327.  The Hanson court expressly stated that if 

Hanson had been present on the day of the raid and had been asked to present valid 

documentation, he would not have been able to do so and would not have satisfied the statutory 

requirements.  138 Wn. App. at 327.  

       Here, unlike in Hanson, Matthew was present during the search of his property and did 

not present a valid authorization card to the police on the day of his son's arrest in accordance 

with former RCW 69.51A.040(2)(c).  138 Wn. App. at 327.  Instead, Matthew presented an 

expired card to Deputy Uhlich.  See State v. Ginn, 128 Wn. App. 872, 884, 117 P.3d 1155 (2005) 

(a primary caregiver is precluded from raising a medical marijuana affirmative defense under ch. 

69.51A RCW because a handwritten notarized letter does not strictly comply with the valid 

documentation statute),  review denied, 157 Wn.2d 1010 (2006).  Matthew provided valid 

documentation only after police questioning.  Thus, even if the trial court had admitted Matthew's 

new authorization card as evidence at trial, Matthew could not prove he was in compliance with 

the statute on December 30, 2007.  Former  RCW 69.51A.040(2)(c).  Obtaining a valid 

authorization card after questioning does not avail a qualifying patient of the consequences for 

failing to comply with the statute.  Former RCW 69.51A.040.  

Sufficiency of the Evidence

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No. 40491-5-II

       For the first time in his reply brief, Matthew appears to challenge the sufficiency of the 

evidence proving that he fraudulently produced medical marijuana documentation.  Specifically, 

Matthew argues that he did not provide the altered authorization card to Deputy Uhlich for the 

purpose of having it accepted as valid documentation, but provided it as "an offer of proof that he 

would be able to produce valid documentation in the future." Reply Br. of Appellant at 13.  We 

do not consider arguments raised for the first time in a reply brief and do not address this issue 

further.  RAP 10.3(c); State v. Alton, 89 Wn.2d 737, 739, 575 P.2d 234 (1978); State v. White,

123 Wn. App. 106, 114 n.1, 97 P.3d 34 (2004).  

Statement of Additional Grounds (SAG) 

       For the first time, in his SAG, Matthew asserts that the affidavit in support of the search 

warrant contains material misrepresentations and omissions of fact.  He alleges that the officers 

failed to include information relevant to the magistrate's determination of probable cause.  

Specifically, Matthew alleges that Deputy Robinson omitted from the affidavit that (1) Robinson 

seized the gun before searching for Cody in the outbuilding, (2) the police officers had walked 

past "numerous clearly visible 'No Trespassing Signs,'" (3) the padlocked door was inside the 

outbuilding, and (4) the location of the padlocked door and the vent where the officers smelled 

marijuana in relation to the house.  Clerk's Papers (CP) at 23.  Because he asserts that the search 

warrant was invalid, Matthew assigns error to the subsequent search of his property and asserts 

that the trial court erred when it did not suppress Deputy Taylor's photos of the marijuana.8  

8 In his SAG, Matthew attached his motion to suppress and supporting memorandum, which 
argued that the search warrant was invalid because the officers entered his property without a 
warrant in order to effectuate a warrantless misdemeanor arrest of his son, Cody.  However, 
Matthew does not challenge the probable cause for Cody's arrest on appeal and we do not 
address this issue further.  
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No. 40491-5-II

       We presume that an affidavit supporting a search warrant is valid.  Franks v. Delaware, 

438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Atchley, 142 Wn. App. 147, 

157, 173 P.3d 323 (2007).  Under the Fourth Amendment, factual inaccuracies or omissions in a 

warrant affidavit may invalidate the warrant if the defendant establishes that they are necessary to 

the finding of probable cause and made knowingly, intentionally, or with reckless disregard for the 

truth.  U.S. Const. amend. IV; Franks, 438 U.S. at 155-56; State v. Chenoweth, 160 Wn.2d 454, 

462, 158 P.3d 595 (2007); Atchley, 142 Wn. App. at 158 (citing State v. Garrison, 118 Wn.2d 

870, 874, 827 P.2d 1388 (1992)); State v. Sweet, 23 Wn. App. 97, 100-01, 596 P.2d 1080, review 

denied, 92 Wn.2d 1026 (1979).  "If the defendant succeeds in showing a deliberate or reckless 

omission, then the omitted material is considered part of the affidavit."  Atchley, 142 Wn. App. at 

158 (citing Garrison, 118 Wn.2d at 873).  "'If the affidavit with the matter deleted or inserted, as 

appropriate, remains sufficient to support a finding of probable cause, the suppression motion fails 

and no hearing is required.'"  Atchley, 142 Wn. App. at 158 (quoting Garrison, 118 Wn.2d at 

873).  

       "A search warrant may issue only upon a determination of probable cause."  Atchley, 142 

Wn. App. at 161 (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)).  "Probable 

cause exists where there are facts and circumstances sufficient to establish a reasonable inference 

that the defendant is involved in criminal activity and that evidence of the criminal activity can be 

found at the place to be searched."  Atchley, 142 Wn. App. at 161 (citing State v. Thein, 138 

Wn.2d 133, 140, 977 P.2d 582 (1999)).  "In determining probable cause, the magistrate makes a 

practical, commonsense decision and is entitled to draw reasonable inferences from all the facts 

and circumstances set forth in the affidavit."   Atchley, 142 Wn. App. at 161 (citing State v. 

                                               10 

No. 40491-5-II

Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004)).  

       Here, information regarding the timing of the police's seizure of the gun, the location of 

the padlock door and vent in relation to the house, and the location of the "No Trespassing" signs 

is immaterial to the magistrate's determination of probable cause prior to issuing the search 

warrant to permit the officers to search the outbuilding to investigate the source of the marijuana 

smell.  Atchley, 142 Wn. App. at 161.  A statement by an officer with training and experience in 

investigating marijuana grow operations and who is so familiar with the odor of growing 

marijuana that he actually detected the odor of marijuana, is sufficient evidence to support a 

finding of probable cause.  Cole, 128 Wn.2d at 289 (because affiant stated he had been an officer 

for over two years, had been involved with marijuana grow operations within that time, and was 

familiar with the smell of growing marijuana, affidavit supported finding of probable cause (citing 

State v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994))).

Deputy Robinson stated that he had training and experience investigating both unburned and 

burned marijuana.  Robinson stated that he and other officers smelled "the strong odor of unburnt 

marijuana" near the outbuilding, and that he noticed the odor was strongest next to a vent.  CP at 

27.  He could "hear fans running behind the locked door, which are commonly used, to ventilate 

marijuana grows." CP at 27.

       The search warrant for Matthew's property was based on information that Deputy 

Robinson discovered while lawfully searching for Cody following a citizen's report that he was 

discharging a firearm from his truck.  See Atchley, 142 Wn. App. at 157.  Because the facts 

contained in Robinson's affidavit were sufficient to establish a reasonable inference that evidence 

of criminal activity could be found in the outbuilding and because Matthew fails to show that 

                                               11 

No. 40491-5-II

Robinson's factual omissions were deliberate or reckless, we hold that the search warrant was 

valid.  Franks, 438 U.S. at 155-56; Cole, 128 Wn.2d at 289; Atchley, 142 Wn. App. at 158, 161.  

Because we hold that the search warrant was valid, we do not address Matthew's remaining 

"warrantless" search argument.  

       Accordingly, we affirm the trial court's order denying Matthew's motion to suppress 

evidence, and Matthew's convictions for unlawful manufacture of marijuana and fraudulent 

production of or tampering with medical marijuana documentation. 

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

VAN DEREN, J.

WORSWICK, A.C.J.

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