Busted

[rkeywood]

So sorry to hear this Wingman. Know that all the positive thoughts & energies are sent your way! I wish there were something I could do to help. I'm a new MMJ patient & it scares me to think they can do this to any one of us. Absolutely disgusting! Very best of luck to you

 

[bsemaj]

@ Wingman,

United States Sentencing Guidelines § 2D1.1

Drug Primer (April 2011) - United States Sentencing Commission
You +1'd this publicly. Undo
File Format: PDF/Adobe Acrobat - Quick View
ง2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including. Possession ..... 520 U.S. 751, 757 (1997), and “commentary in the Guidelines ...

This has the plant info located in it. Along with the case law .

b. Marijuana Plants. A marijuana plant is defined as “an organism
having leaves and a readily observable root formation.” See
§2D1.1, comment. (n.17). See also United States v. Foree, 43 F.3d
1572, 1581 (11th Cir. 1995) (a cutting or seedling from a
marijuana plant is not considered a plant until the cutting or
seedling develops roots of its own). Neither the statute nor the
Drug Quantity Table differentiates between male and female
plants. See Note (E) to Drug Quantity Table (“regardless of sex”);
see also United States v. Proyect, 989 F.2d 84, 88 (2d Cir. 1993)
(upholding constitutionality of failure to differentiate).
Under §2D1.1, one marijuana plant is treated as equivalent to 100
grams of marijuana. See Note (E) to Drug Quantity Table. The
Guidelines make an exception to this equivalency if the actual dry
weight of harvested marijuana is greater, in which case the court
should use the actual dry weight of the harvested marijuana. See
id. Courts have generally applied the equivalency even if the
actual weight of harvested marijuana plants is lower than 100
grams per plant. See United States v. Olsen, 537 F.3d 660, 665 n.2
(6th Cir. 2008) (collecting cases). The Sixth Circuit has limited
this rule to manufacturing cases and has held that a sentence for
possession or distribution should be based on the actual weight of
the harvested plants. Id. at 663.
Note: One marijuana plant is treated as equivalent to 1 kilogram
(not 100 grams) of marijuana for purpose of setting the statutory
penalty range. See 21 U.S.C. §§ 841(b)(1)(A)(vii), (B)(vii), (D).




TITLE 11
Criminal Offenses
CHAPTER 11-44
Trespass and Vandalism
SECTION 11-44-2

§ 11-44-2 Injury or removal of vegetation – Buildings and fences. – Every person who shall take and carry away, without the consent of the owner, any corn, grain, fruit, or growing vegetable out of any field, garden, or orchard, or who shall willfully and without the consent of the owner root up, cut down, or otherwise injure or destroy or take and carry away any tree or underwood growing or standing upon the land of another, or remove any cord wood, or shall maliciously root up, cut down, or otherwise injure or destroy any tree, root, fruit, or vegetable growing in any garden, field, orchard, highway, common, or public square, or who shall take and carry away, without the consent of the owner, any cultivated plant, tree, or shrub from any graveyard or from any public or private grounds, or who shall wantonly or maliciously injure or destroy any plant or shrub growing upon the land or in the building of another, or who shall poison the earth about any plant or shrub so as to prevent or injure its growth, or who shall maliciously or wantonly in any way injure or deface any building not his or her own, or break the glass or any part of it in any building, or shall maliciously injure any fence or stone wall on or enclosing lands not his or her own, shall be imprisoned not exceeding one year or be fined not exceeding triple the value of the damage or one thousand dollars ($1,000), whichever is lower; and shall be required to pay the party injured a penalty not to exceed triple the value of the damage caused by the person; provided, that if any person shall knowingly use or permit to be used any vehicle for the commission of any of the offenses enumerated in this section, he or she shall also be penalized in the manner specified in title 31.

History of Section.
(G.L. 1896, ch. 279, § 23; P.L. 1900, ch. 736, § 1; C.P.A. 1905, § 1177; G.L. 1909, ch. 345, § 23; G.L. 1923, ch. 397, § 23; P.L. 1928, ch. 1215, § 1; G.L. 1938, ch. 608, § 23; G.L. 1956, § 11-44-2; P.L. 1980, ch. 276, § 2; P.L. 1982, ch. 237, § 1; P.L. 1992, ch. 426, § 1.)


Now this is a question I posed on ASA :

WHAT IS THE "FAIR" MARKET VALUE SET FOR "A" CANNABIS PLANT ?

I got this from one of the members, an answer I wasn't expecting :

I would love to chime in on this . That really all depends on what the end use is to be.

For example a healthy mother should produce up to 75+ clones a month at 10.00 ea. that's 9,000.00 annual . If it's one of our six way x's that took over three years to make and stabilize I would say a lot more than 12,500.00 per plant (they're priceless). Were these indoor/outdoor ? I lost two nurseries in the past few years I valued the generic strains (meaning anything easily acquired and common) at no less than 1500.00 min. per mother if she was uncut and within the first 90 days of rooting. These are just estimates and my opinion only. Remember and I am assuming you're an experienced grower ,inexperienced growers should never count on certain values there are just too many variables. Even with years of experience stuff sometimes happens. I wish you all of the luck and truly hope someone with real legal knowledge answers you and that you get the results you wish for. Sorry about your garden whatever it was.


I have more cases which show the value is $12,500 per plant per the DEA and drug task forces.. but, I don't recall if they are after the sentencing change or not..

I will have to go through them and check before I post them.. no sense in attempting to rely on old data.. even though leo does..

NO WARRANT = NO CASE !!

Here is why:

See Worrell, 219 F.3d at 1212 ("[A]ny form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom." (internal quotation marks omitted))

We have required proof of the following elements:

(1) that the plaintiff "was engaged in constitutionally protected activity";

(2) that the defendant's actions caused the plaintiff "to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity"; and

(3) that the "defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct." Id.

That approach has been followed by other circuits. See, e.g, Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300-01 (9th Cir. 1213*1213 1999); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998).

Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir. 1995) ("[G]overnment actors cannot intentionally suppress constitutionally protected expression because of its content and avoid First Amendment scrutiny simply by claiming that they were acting pursuant to an otherwise valid criminal law."), abrogated on other grounds by Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).


How many speech related documents do you have ??? Yours and how many others ??

All courts are bound to run into the first amendment before anything else.. and you obviously had plenty of speech related cannabis communications declarations hanging around which obviously some asshat intentionally suppressed without a judges approval to do so..

You have these numb nutts by the throat and they don't even know it..

Go Wingman

Now you know it..

 

[bsemaj]

Here is the case law for your case my friend.

STATE v. STOREY
8 A.3d 454 (2010)
STATE
v.
Kevin H. STOREY.
No. 2009-178-C.A.
Supreme Court of Rhode Island.

December 3, 2010.
Jane M. McSoley, Department of Attorney General, for Plaintiff.
Janice M. Weisfeld, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.



OPINION
Justice INDEGLIA, for the Court.
The defendant, Kevin H. Storey (defendant or Storey), appeals from his conviction for possession of a firearm after a previous conviction for a crime of violence (G.L.1956 § 11-47-5); possession of methylenedioxy amphetamine ("Ecstasy") (G.L.1956 § 21-28-4.01(c)(2)(i)); and possession of marijuana (§ 21-28-4.01(c)(2)(ii)). Specifically, the defendant challenges the warrant that was executed to search his residence. He contends that the affidavit supporting the warrant did not provide requisite probable cause, nor
[ 8 A.3d 457 ]

did it describe the place to be searched with sufficient particularity. Accordingly, the defendant asks this Court to find the search invalid and reverse the trial justice's denial of his motion to suppress the evidence seized. This case came before the Supreme Court for oral argument on September 28, 2010, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After an examination of the written and oral submissions of the parties, we are of the opinion that the appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Procedural History
On June 20, 2005, Det. Christopher Francesconi (Francesconi) applied for a warrant to search Storey's residence at 52 Wannisett Avenue in East Providence, Rhode Island for "evidence of illegal narcotics (specifically cocaine) and the sale of illegal narcotics which are stored at [the residence]." To support the warrant, Francesconi submitted to a District Court judge (judge)1 an affidavit that contained the following information aimed at justifying probable cause to search the single-family residence. Francesconi first identified his credentials as a five-and-a-half-year veteran of the East Providence Police Department on assignment with the Vice Unit. He included a further explanation that the Vice Unit investigates violations of the Uniform Controlled Substances Act in the City of East Providence. Next, Francesconi's affidavit recounted that "approximately two months" before the June 20, 2005 warrant application, the Vice Unit received a tip relaying Storey's current involvement in "the sale and distribution of cocaine from his residence."
Francesconi investigated this tip by conducting a criminal-background check of Storey and a "trash pull" at Storey's then-alleged residence at 52 Wannisett Avenue. The criminal-background check revealed that Storey was arrested numerous times between 1989 and 2002 for crimes including assault and battery, assault with a dangerous weapon, assault with intent to commit murder, damaging property, operating a motor vehicle without a license, and driving under the influence. Francesconi included all of this criminal-background information in the affidavit. The affidavit also stated that Francesconi conducted a trash pull at 52 Wannisett Avenue on June 17, 2005, a day scheduled for the city's trash pickup. Francesconi collected refuse placed on the curbside of the residence, took it to the police station, and then searched its contents. According to the affidavit, the garbage included "evidence of illegal narcotic activity." It then elaborated that "twelve cut plastic baggies and two pieces of mail in the name of Kevin Storey" were found in the trash2 and that one of the plastic baggies contained a "white powdery residue" that "tested positive for the presence of cocaine." In addition to the two pieces of mail, Francesconi's affidavit
[ 8 A.3d 458 ]

also declared that he "was able to confirm Storey's address [at 52 Wannisett Avenue] by various other police investigative techniques."
Based on this affidavit, the judge was satisfied that probable cause to search Storey's residence existed and issued the warrant on June 20, 2005. The warrant authorized the search of 52 Wannisett Avenue for "cocaine, other illegal narcotics, ledgers, U.S. currency, scales, paraphernalia and other items related to the sale and distribution of narcotics specifically cocaine."
On June 23, 2005, Francesconi and Det. Karl Jacobson (Jacobson), with several uniformed East Providence police officers, executed the search warrant at 52 Wannisett Avenue. After knocking, Francesconi served Danielle Saleeba (Saleeba), Storey's then-girlfriend and now wife, who also lived at the residence during the relevant period, with the search warrant. Francesconi testified that Storey soon emerged from the bathroom, acknowledged the police and their warrant, and upon Francesconi's query whether there was "any contraband inside the residence[,]" admitted that he had two rifles underneath his bed. Francesconi located the two weapons, a Marlin .22-caliber rifle and a loaded Springfield 12-gauge shotgun, and then proceeded to search other parts of the bedroom. There, the police discovered ammunition for the two weapons they had found, ammunition for a weapon of a caliber not found at the residence, two Ecstasy tablets, "a small quantity" of marijuana, an apparatus for smoking marijuana, and $1,587 in cash. After the weapons were located, Jacobson discovered bags containing cocaine inside Saleeba's purse. After the search and seizure of the weapons and drugs, the police took both Storey and Saleeba into custody. During questioning by the police at the station, Storey proceeded to make several incriminating statements about his ownership of the weapons and drugs.
On September 30, 2005, a criminal information was filed charging Storey with six counts, including the possession of cocaine with the intent to deliver (count 1), possession of a firearm after a previous conviction for a crime of violence (count 2), possession of a controlled substance with the intent to deliver while armed (count 3), possession of Ecstasy (count 4), conspiracy with Saleeba to possess a controlled substance (count 6), and possession of marijuana (count 7). Under the same information number, Saleeba was charged with possession of cocaine (count 5).
On February 20, 2006, during pretrial motions, Storey waived his right to a jury trial and moved to suppress the evidence seized from his residence.3 With regard to the motion to suppress, defendant argued that the judge erred by issuing the search warrant based on an affidavit that did not establish probable cause.4 The defendant asserted that the two-month-old, anonymous tip was unreliable and stale. He further contended that even combining the tip with defendant's several non-drug-related convictions and the trash pull revealing
[ 8 A.3d 459 ]

twelve cut plastic baggies, residue of cocaine, and two pieces of mail addressed to defendant, the affidavit still did not provide the requisite probability that criminal activity, specifically drug sales and distribution, was occurring at 52 Wannisett Avenue.
The trial justice disagreed. He first found that anonymous tips, such as the one included in Francesconi's affidavit, are not per se unreliable, and first-time, untested informants can provide information that supports a finding of probable cause. Furthermore, he determined that despite the two-month period between the tip and the trash pull, the tipster's "information [was] verified and corroborated by the fact that Storey still lives there, and within his trash the police do find a residue of cocaine." Essentially, the trial justice determined that the tip provided to the Vice Unit sometime around April 20, 2005 "was still correct with respect to what was still happening in that residence two months later in June [2005]." As to the non-drug-related arrests included in the affidavit, the trial justice recognized that "an individual's criminal background can play a part in the probable cause matrix" and the "recitation of [defendant's] assaultive behavior" was "not without some relevance." He then articulated that probable cause is determined using the "totality of [the] circumstances test," which requires the issuing magistrate to "make[] a practical, common sense decision * * * given all the circumstances set forth in the affidavit [that] there is, in fact, the probability that contraband or evidence of a crime would be found in a particular place." Based on this standard, the trial justice agreed with the judge that there was "sufficient information in the four corners of that affidavit and the fair inferences therefrom" to conclude probable cause existed to search defendant's residence. Accordingly, the trial justice found the search warrant valid and declined to suppress any evidence seized from defendant's residence.5
At the subsequent, jury-waived trial that commenced on February 20, 2006, defendant was convicted of three offenses: possession of a firearm after a previous conviction for a crime of violence (count 2), possession of Ecstasy (count 4), and possession of marijuana (count 7).6 On April 27, 2006, defendant was sentenced to a mandatory two years on count 2; three years suspended on count 4; and one year suspended on count 7. The sentences were consecutive. Judgment of conviction was entered on May 4, 2006, and defendant filed a timely notice of appeal the next day.
II
Standard of Review
"When reviewing a trial justice's decision granting or denying a motion to
[ 8 A.3d 460 ]

suppress, `we defer to the factual findings of the trial justice, applying a "clearly erroneous" standard.'" State v. Flores, 996 A.2d 156, 160 (R.I.2010) (quoting State v. Barkmeyer, 949 A.2d 984, 995 (R.I.2008)). Our review of "a trial justice's determination of the existence or nonexistence of probable cause" necessitates de novo treatment. Id. (quoting State v. Foster, 842 A.2d 1047, 1050 (R.I.2004)). However, "it is incumbent upon the trial justice and the reviewing court to accord great deference to the issuing magistrate's probable-cause determination, so long as there is a showing of `a substantial basis from which to discern probable cause.'" State v. Byrne, 972 A.2d 633, 638 (R.I.2009) (quoting State v. Correia, 707 A.2d 1245, 1249 (R.I.1998)).
Likewise, our review of whether a warrant states with sufficient particularity (or as nearly as may be) the description of the place to be searched also requires bifurcation. Again, any findings of fact made by the trial justice in denying a motion to suppress for want of particularity are afforded great deference per the clearly erroneous standard. State v. Jeremiah, 696 A.2d 1220, 1222 (R.I.1997) ("In assaying the Superior Court's decision to deny the motions to suppress [based on a challenge to `requisite particularity' of the `place or places to be searched'], we apply the clearly erroneous standard of review, mindful that we must examine the evidence in the light most hospitable to the state"). However, we examine anew the application of constitutional law regarding particularity to the facts. Cf. State v. Apalakis, 797 A.2d 440, 443 (R.I.2002) ("With respect to questions of law and mixed questions of law and fact involving constitutional issues, however, this Court engages in a de novo review * * *."); see also Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (stating that the analysis of a warrant's validity based on the Fourth Amendment's particularity requirement is a constitutional issue).
III
Analysis
On appeal, Storey challenges both the sufficiency of probable cause for issuance of the search warrant and the particularity of the warrant's description of the place to be searched.
A
The Basis for Probable Cause
Based on the totality of the circumstances presented in the affidavit, defendant argues that a finding of probable cause was not justified because: (1) the tip was anonymous, (2) the tip was stale, (3) the trash-pull evidence7 was insufficient to corroborate the tip, (4) his criminal-background information was irrelevant to the drug crime the police were investigating, and (5) Saleeba's residence at 52 Wannisett Avenue was not disclosed to the magistrate, which limited the magistrate's knowledge of material information and affected the inferences he made when determining the existence of probable cause.
[ 8 A.3d 461 ]

This Court's recent opinion, Byrne, 972 A.2d at 637-38, provides succinct guidelines for reviewing a search warrant's validity. As a threshold requirement, our first task is ensuring that the issued warrant was "based on a sworn affidavit by a police officer that was submitted to a neutral and detached judicial officer * * *." Id. at 637 (citing Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution). Here, as there is no dispute about the submission of a sworn affidavit or the impartiality of the magistrate, we proceed to the next step in the review: determining whether the search warrant was based on probable cause. Id. at 637 (citing State v. Verrecchia, 880 A.2d 89, 94 (R.I.2005)); see also Rule 41(c) of the Superior Court Rules of Criminal Procedure.
In doing so, we examine whether there was "a substantial basis from which to discern probable cause" from the "totality of the circumstances" found within "the four corners of the affidavit prepared in support of the warrant." Byrne, 972 A.2d at 638 (quoting Correia, 707 A.2d at 1249 and citing State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975) and Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Our review of the magistrate's determination permits that his assessment of probable cause may be based on facts contained in the affidavit, as well as on "the reasonable inferences that may be drawn from those facts." Id. We also recognize that "affidavits are to be interpreted in a realistic fashion that is consistent with common sense, and not subject to rigorous and hypertechnical scrutiny." Id. (citing Gates, 462 U.S. at 235-39, 103 S.Ct. 2317). Applying all these principles, our ultimate inquiry asks whether the magistrate made a "practical, common-sense determination" that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). Essentially, a magistrate is not required to assert with certainty that the search items will be found in that particular place, rather the magistrate "need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." Id. at 639 (quoting United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985)); see also State v. Pratt, 641 A.2d 732, 736 (R.I.1994) (stating that although the probable-cause standard requires "more than a mere suspicion," it demands "only the probability, and not a prima facie showing, of criminal activity") (quoting State v. Baldoni, 609 A.2d 219, 220 (R.I. 1992)). Finally, we firmly acknowledge the postulate that "the resolution of doubtful or marginal [probable-cause] cases * * * [is] largely determined by the preference to be accorded to warrants"8 Byrne, 972 A.2d at 639 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
1
Facts Disclosed in the Affidavit
At the outset, we note that defendant challenges individual portions of the affidavit, but fails to fully acknowledge that the probable cause, totality-of-the-circumstances
[ 8 A.3d 462 ]

test looks to the entire mosaic of presented information. "Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, `probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.'" State v. Schmalz, 744 N.W.2d 734, 738 (N.D.2008) (quoting State v. Thieling, 611 N.W.2d 861, 863 (N.D. 2000)). Here, the affidavit presents not only an anonymous tip, twelve cut plastic baggies, the residue of cocaine, and prior non-drug-related criminal activity, but it also presents the confluence of all these information sources. Given the proper inferences a magistrate may make, the amalgamation of this information points to the "fair probability" that drugs and the indicia of drug distribution will be found at Storey's residence. We cannot disagree that the magistrate had a substantial basis from which to discern probable cause based on the totality of the instant facts.
i
Anonymous Tip
Furthermore, even deconstructing the affidavit into its major components does not change the outcome of our analysis. Although the impetus for investigating Storey for cocaine distribution was an anonymous tip, including this tip in the affidavit as part of the probable-cause matrix is not constitutionally problematic. We previously have established that first-time, anonymous informants are not per se unreliable. State v. Grossi, 588 A.2d 607, 608 (R.I.1991) (citing State v. Ricci, 472 A.2d 291, 297 (R.I.1984)). Additionally, this Court recognizes that a tip with unknown reliability can be corroborated by independent police investigation, and together the tip and the other investigation can establish probable cause. See State v. Keohane, 814 A.2d 327, 330 (R.I. 2003) (explaining that "use of an anonymous informant as the source of the initial investigation is not fatal to the state's case" where the tip is "thereafter corroborated"). Here, the information that led the Vice Unit toward an investigation of Storey was received on or about April 20, 2005, and later was corroborated by evidence removed from Storey's trash on June 17, 2005.
ii
Tip Staleness
Although the Vice Unit received the tip almost two months before the warrant was issued, we hold that the trash-pull evidence refreshed the viability of that information and was properly included in the affidavit. See State v. Spaziano, 685 A.2d 1068, 1069-70 (R.I.1996) (holding that "anonymous tips received in 1993 and 1994 * * * were [not] too old to support a finding of probable cause for the search warrant * * * [where the] affidavit also contained sufficient current information" from a 1995 surveillance of the defendant's property); see also United States v. Schaefer, 87 F.3d 562, 568 (1st Cir.1996) ("When an affidavit tendered in support of a warrant application contains information that is remote in time, a magistrate may still hold it to be adequate if it also contains sufficient recent facts corroborating the older data and linking that data to the present."). Here, the combination of an older tip, plus fresh evidence discovered close in time to the warrant application was sufficient to show that the tip was not stale and to establish probable cause.
Even more persuasive that the tip was refreshed by the trash pull is the fact that the information contained in the April 2005 tip (cocaine distribution) was directly consistent with the evidence
[ 8 A.3d 463 ]

Francesconi found in the trash on June 17, 2005 (cocaine residue and cut baggies). This consistency made it reasonable for the magistrate to infer that the drug use and distribution had been ongoing at the residence since the April 2005 tip and would continue throughout June 2005, after the warrant was issued. See Commonwealth v. Matias, 440 Mass. 787, 802 N.E.2d 546, 552 (2004) (holding that "the trash pull conducted on * * * the day the affidavit was submitted, revealed evidence `consistent with' [the six-month-old tip]" which justified the inference that the information relayed in the tip was a "`protracted or continuous' activity that was still ongoing [on the date of the trash pull]"). Despite the two-month period between the tip and the trash pull, we are persuaded that the consistency of these two pieces of evidence justified the magistrate's inference that Storey's drug distribution was ongoing and there was "a fair probability that contraband or evidence of a crime [would] be found" at Storey's residence. Byrne, 972 A.2d at 638 (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317).
To support his staleness argument, Storey cites several cases that do not help his cause. Storey first argues that the affidavit in State v. King, 693 A.2d 658 (R.I. 1997), presented more reliable and detailed tips than the anonymous tip in this case, which should further persuade this Court that the instant tip was stale. However, King actually supports this Court's opinion that older tips are viable even if the affiant fails "to specify the dates or the times of the observations by the informants," provided that the tip is properly corroborated and refreshed by recent, relevant evidence. Id. at 662. The other cases cited by Storey are equally ineffective because they involved stale, controlled-drug purchases without the advent of more recent evidence. See Hemler v. Superior Court, 44 Cal.App.3d 430, 118 Cal.Rptr. 564, 566 (1975); People v. Damian, 299 Ill.App.3d 489, 233 Ill.Dec. 528, 701 N.E.2d 171, 175 (1998). We hold that the tip to the Vice Unit was not stale and was properly considered by the magistrate as part of the totality-of-the-circumstances test.
iii
Tip Corroboration from the Trash Pull
We are not persuaded that the evidence removed from the trash pull did not corroborate the tip or augment the fair probability that indicia of drug use and distribution would be found at Storey's residence. The defendant argues that one baggie containing residue of cocaine is not sufficient to indicate the requisite probability for drug distribution. Rather, defendant maintains that one baggie is equivalent with personal use. He further argues that "twelve cut plastic baggies" in no way supports probable cause because Francesconi's affidavit did not specifically connect such innocuous items with drug distribution. We do not subscribe to these arguments.
This Court initially notes that neither the affidavit nor the warrant was drawn so narrowly as to limit the police to search for indicia of drug distribution and sales only. In the affidavit, Francesconi articulated his belief that "there is evidence of illegal narcotics (specifically cocaine) and the sale of illegal narcotics which are stored at 52 Wannisett Avenue." (Emphasis added.) Clearly, Francesconi requested the opportunity to search for both the drugs and evidence of drug sales. Consistent with Francesconi's affidavit, the issued warrant permitted a search for "[c]ocaine, other illegal narcotics, ledgers, U.S. currency, scales, paraphernalia and other items related to the sale and distribution of narcotics specifically cocaine." (Emphasis added.) Again, the warrant authorized the
[ 8 A.3d 464 ]

police to search for both drugs and drug distribution and sales. Here, Storey cannot reasonably argue that the police searched in a location where drugs could not be found in contravention of the warrant.
However, regardless of the warrant's dual authority to search for both drugs and the indicia of drug distribution and sales, this Court nonetheless holds that the magistrate did have a substantial basis to discern the probable cause to search for evidence of distribution and sales, as well. The guidelines for analyzing affidavits are clear; we do so in a way "consistent with common sense, and not subject to rigorous and hypertechnical scrutiny." Byrne, 972 A.2d at 638. Francesconi's affidavit states that there was "evidence of illegal narcotic activity" in Storey's trash. In the very next sentence Francesconi explains that there were "twelve cut plastic baggies" and one baggie that contained cocaine residue in the garbage. Based on the juxtaposition of these two sentences and common sense, the magistrate could infer that Francesconi, an experienced police officer assigned to the Vice Unit, recognized that the trace of cocaine, plus numerous, cut baggies was "evidence of illegal narcotic activity." A magistrate is entitled to credit an experienced police officer's opinion indicated in the affidavit on whether an item is evidence of drug sales and distribution and use it to support a finding of probable cause. See Agurs v. State, 415 Md. 62, 998 A.2d 868, 896 (2010) ("Reviewing courts, like warrant-issuing magistrates in the first instance, are entitled to give credence to the expertise and experience of police officers in developing knowledge about the practices and proclivities of drug dealers.").9
Storey cites State v. Josephson, 123 Idaho 790, 852 P.2d 1387 (1993), to support his argument that the trash-pull evidence did not corroborate the drug-distribution tip. Storey suggests that the insufficient evidence discovered in Josephson's trash consisting of "two marijuana cigarette butts, an empty pack of `Zig-Zag' rolling papers, a bag apparently containing marijuana residue, and five [marijuana] plant stems" is analogous to the evidence in Storey's trash that included residue of cocaine and twelve cut plastic baggies. Id. at 1390. However in that case, the affidavit stated that the trash pull occurred one month before the affiant-officer applied for the search warrant. Id. at 1388, 1391. Although the Josephson court did consider whether the contents of the trash pull were sufficient evidence of distribution, the length of time between the trash pull and the warrant application also contributed to the court's final conclusion that probable cause to search Josephson's residence one month later was not shown. Id. at 1392. The facts here are distinguishable from Josephson because the instant trash pull occurred just three days before Francesconi's warrant application and did provide probable cause to search for the indicia of distribution.
Further arguing that the tip was not corroborated by the trash pull, Storey
[ 8 A.3d 465 ]

suggests that Francesconi erred by not undertaking an investigation to rule out the possibility that the residue of cocaine actually belonged to Saleeba, not Storey. The defendant argues that Francesconi's failure to inform the magistrate that Saleeba's mail also was found in the trash affected the magistrate's ability to properly assess whether the tip was corroborated by the trash pull. We disagree. Even if the magistrate had known that there was a second occupant in the house at the time of the warrant application, it would not significantly have affected his probable-cause analysis. The 52 Wannisett Avenue property was a single-family residence and there was no indication that Storey lacked control over the entire premises. See State v. Davis, 16 Wn.App. 657, 558 P.2d 263, 264-65 (1977) ("Possession and control of premises need not be exclusive, but may be inferred from such circumstances as payment of rent, or possession of keys."). As such, there was a fair probability that Storey could have hidden his drugs anywhere in the house, regardless of Saleeba's presence. "A warrant is valid when it authorizes the search of a street address with several dwellings if the defendant[] [is] in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect." United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir.1985). Combining the trash-pull evidence with a tip alleging Storey's drug-distribution activities at that residence, there was a substantial basis for the magistrate to conclude that probable cause existed, regardless of second-occupant Saleeba's presence.
iv
Inclusion of Non-Drug-Related Criminal Background
We see no error in the affidavit's inclusion of Storey's non-drug-related criminal background as some justification for finding probable cause. Regardless of admissibility at trial, the magistrate may consider all criminal information as part of the totality of the circumstances, even if the crimes are unrelated to the subject matter of the warrant. See United States v. Conley, 4 F.3d 1200, 1207 (3d Cir.1993) (holding that the inclusion of "prior arrests and convictions" in a warrant is "permissible" though "especially" helpful at establishing probable cause where the prior crimes involved the "same general nature as the one which the warrant is seeking to uncover").
2
Facts Not Disclosed in the Affidavit
We do not give weight to defendant's argument that the omission of evidence indicating Saleeba's occupancy at 52 Wannisett Avenue was a "selective inclusion of facts" intended to "bolster the case against Mr. Storey." The defendant did not seek a Franks hearing before the trial justice and, therefore, waives his right to suggest the application of Franks v. Delaware to this Court. In re Miguel A., 990 A.2d at 1223 (articulating the raise-or-waive rule); see Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that upon a "substantial preliminary showing * * * the Fourth Amendment requires that a hearing be held at the defendant's request" to flesh out the "allegation of perjury or reckless disregard [in the affidavit] * * * by a preponderance of the evidence"). Furthermore, beyond the speculation advanced by Storey, we see no evidence in the record that Francesconi's "omission [was] `designed to mislead' or [was] made `in reckless disregard of whether [it] would mislead.'" United States v. Tate, 524 F.3d 449,
[ 8 A.3d 466 ]

455 (4th Cir.2008) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990) (emphases omitted)).
Thus, we are satisfied that the four corners of the affidavit provided a substantial basis for the magistrate to find probable cause in this case.
B
The Warrant's Description of the Places To Search
Lastly, defendant challenges the warrant on the grounds that it did not state with sufficient particularity the location to be searched. Storey contends that the warrant was overbroad because it failed to describe "any specific room, floor, or location within" 52 Wannisett Avenue where the police should have centered their search. He argues that a narrowly tailored search was especially vital here because a second person, Saleeba, also occupied the house. These arguments do not persuade us.
The Fourth Amendment requires an issued warrant to "particularly describ[e] the place to be searched, and the persons or things to be seized." Similarly, article 1, section 6, of the Rhode Island Constitution requires that a warrant "describ[e] as nearly as may be, the place to be searched and the persons or things to be seized." Naturally, the probable cause and particularity requirements go hand in hand. See State v. DeLaurier, 533 A.2d 1167, 1171 (R.I.1987) ("The purpose of the particularity requirement is to prevent exploratory searches made on mere suspicion rather than on judicially determined probable cause").
In our view, there was probable cause to search the entire premises of the single-family house. That Saleeba also lived at 52 Wannisett Avenue with Storey does not change the particularity calculus. See DeLaurier, 533 A.2d at 1170 (validating a search warrant even though the affidavit only referenced one occupant because "search warrants are not directed at persons; they authorize the search of `place' and the seizure of `things,' and as a constitutional matter they need not even name the person from whom the things will be seized") (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 555, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)); see also United States v. Ayers, 924 F.2d 1468, 1480 (9th Cir.1991) ("A search warrant for the entire premises of a single family residence is valid, notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of a residence"). Because there was probable cause to search the entire place articulated in the warrant, it was not necessary for the magistrate to take into account who else was living there when he authorized the place to be searched.
The defendant's reliance on State v. Jeremiah, 696 A.2d 1220 (R.I.1997), and State v. Costakos, 101 R.I. 692, 226 A.2d 695 (1967), is misplaced. The warrants in both of these cases were overbroad because the authorized places to search were unequivocally unsupported by probable cause. The warrant in Jeremiah permitted "a blanket or general search of the entire twelve-acre, eighteen-building, ten-warehouse, eighty-three-separate-unit Silver Center Compound" even though there was probable cause to search only the defendant's single warehouse. Jeremiah, 696 A.2d at 1224, 1225. Likewise, in Costakos, the warrant "commanded the police to conduct a blanket or general search of an entire building although probable cause, if it existed, had been shown only for searching the single apartment occupied by defendant." Costakos, 101 R.I. at 696, 226 A.2d at 697. Conversely here, the
[ 8 A.3d 467 ]

warrant authorized the search of Storey's single-family home for which there was probable cause to look in every room for the presence of drugs or the indicia of drug distribution. By stating that the search could encompass 52 Wannisett Avenue, "a grey, vinyl sided, single family residence, with white trim and a detached garage," the warrant apprised the executing officers with a description so they could easily "identify and ascertain the place to be searched." Jeremiah, 696 A.2d at 1224.
IV
Conclusion
Given the deference accorded to the magistrate's finding of probable cause and the totality of circumstances providing a "substantial basis" for the "fair probability that contraband or evidence of a crime" would be found at 52 Wannisett Avenue, this Court holds that the affidavit and, therefore, the warrant were constitutionally proper. It was not error for the trial justice to deny the defendant's motion to suppress for lack of probable cause or particularity. We affirm the Superior Court judgment. The record may be remanded to the Superior Court.
Footnotes
1. Because magistrates typically perform the warrant-issuing function, this Court necessarily must compare the judge's probable-cause determination with the vast majority of caselaw that references magistrates. As such, for convenience in conducting this comparison, we will refer to the judge as "the magistrate" in the analysis section. In so doing, this Court intends no disrespect to the judge and duly notes his status as a former Acting Chief Judge of the District Court.
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2. Although this information was not included in the affidavit, the seizure report for the 52 Wannisett Avenue trash pull also stated that two pieces of mail with Danielle Saleeba's (Saleeba) name were discovered in the refuse.
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3. Also during pretrial motions, the state dismissed counts 1 and 6 based on Rule 48(a) of the Superior Court Rules of Criminal Procedure and severed Storey's case from Saleeba's.
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4. Although before the trial court defendant did not present orally his alternate argument that the warrant failed to describe the place to be searched with sufficient particularity (or as nearly as may be), he did include this challenge in his written memorandum to the trial justice to support his motion to suppress. Storey preserved this argument for appeal by specifically requesting the trial court record to incorporate all arguments made in his memorandum.
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5. Though clearly stating that he was not diminishing what he determined was a sufficient affidavit and properly issued warrant based on probable cause, the trial justice did mention sua sponte that were this affidavit somehow found "fatally thin or flawed[,]" the good-faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897, 924, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), still would preclude suppression. See id. at 926, 104 S.Ct. 3405, (holding that evidence obtained based on a search warrant later found invalid because of the lack of probable cause will not be suppressed if police officers acted in "reasonable" reliance of the warrant issued by a "detached and neutral" magistrate). However, in light of this Court's holding that the warrant is valid, we decline to address the good-faith exception to the exclusionary rule at this time. See State v. Byrne, 972 A.2d 633, 642 n. 15 (R.I.2009).
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6. At the close of all evidence, the state dismissed count 3 (possession of a controlled substance with the intent to deliver while armed) based on Rule 48(a).
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7. In his supplemental prebriefing statement, defendant makes a passing argument that "the reasonableness of the trash pull investigative technique in this instance is dubious," even though at trial, defendant expressly waived any contest that his reasonable expectation of privacy was infringed by this search. Generally, when a claim of error is not properly preserved below, we need not address its merit. See In re Miguel A., 990 A.2d 1216, 1223 (R.I.2010) ("This Court's `raise-or-waive' rule precludes our consideration of an issue that was not raised or articulated at trial."). Accordingly, we decline to review the constitutionality of the trash pull.
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8. The Supreme Court of the United States repeatedly has articulated the Fourth Amendment's preference for warrants. See, e.g., Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ("The Fourth Amendment demonstrates a `strong preference for searches conducted pursuant to a warrant,' * * * and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches") (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
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9. Likewise, the magistrate can use his or her own common or specialized experience to make reasonable inferences when determining the existence of probable cause. Ornelas, 517 U.S. at 699, 116 S.Ct. 1657 (holding that "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges"); State v. Sinapi, 359 N.C. 394, 610 S.E.2d 362, 366 (2005) (noting that North Carolina law establishes "that a magistrate's `reasonable inferences from the available observations, particularly when coupled with common or specialized experience, long have been approved in establishing probable cause'") (quoting State v. Riggs, 328 N.C. 213, 400 S.E.2d 429, 434 (1991)).

_______________________________________________________

STATE v. BYRNE
972 A.2d 633 (2009)
STATE
v.
Thomas P. BYRNE.
No. 2008-27-C.A.
Supreme Court of Rhode Island.

June 19, 2009.
Aaron L. Weisman, Department of Attorney General, for Plaintiff.
Richard C. Bicki, Esq., Providence, for Defendant.
Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).



OPINION
Acting Chief Justice GOLDBERG, for the Court.
This case came before the Supreme Court on April 7, 2009, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are satisfied that cause has not been shown, and we shall decide this appeal without further briefing and argument.
On motion of defendant, Thomas P. Byrne (Byrne or defendant), a justice of the Superior Court issued a written decision granting a motion to suppress evidence obtained during the execution of a search warrant at defendant's home. The state appealed, and argues before this Court that the affidavit submitted in support of the search warrant provided sufficient probable cause to conclude that the fruits of a criminal offense could be found at defendant's home. We agree. For the reasons set forth in this opinion, we vacate the order of the Superior Court.
I
Facts and Travel
In passing on defendant's motion to suppress, the trial justice was confronted with the following facts. On September 18, 2005, Roxanne and Simon Smith reported an incident to the Warren Police Department involving defendant and their daughter that, they alleged, occurred the previous day. Roxanne informed Det. Joel Camara (Det. Camara) that on the morning of September 17, 2005, Roxanne, Simon, and their ten-year-old daughter,
[ 972 A.2d 636 ]

Barbara,1 went to the Off Center Coffee House (coffee house) in Warren, an establishment that was owned by defendant, with whom the family apparently was acquainted. Although Roxanne and Simon left the coffee house two hours later, young Barbara asked to stay behind to assist the staff in preparing food and serving customers. The defendant was present during Barbara's visit.
After her parents left, defendant allegedly asked Barbara if she wanted to see the "museum" downstairs. When they arrived in the basement, defendant asked Barbara, who was wearing what was described as a miniskirt, to kneel beside his dog so that he could take a photograph. Barbara knelt on the floor next to the dog; but before defendant snapped a picture, he insisted that she lift her knees into a crouching position. Although she complied, defendant was not satisfied with the shot and instructed her to stand up for more photographs. According to the affidavit, when Barbara stood up, defendant dropped to one knee, fully extended the camera lens, and focused the camera on the area below Barbara's stomach.
Thereafter, defendant led Barbara upstairs and asked her to clean the lamps that were hanging from the ceiling. In order to reach the lamps, she had to stand on top of a table. According to the affidavit, once she was in position, Barbara saw defendant's reflection in a mirror on a nearby wall and realized that he was aiming the camera lens underneath her skirt. When she turned around to face him, defendant casually walked away, while whistling a tune. Barbara's parents were unaware of the incident until later that day, when the family prepared to leave for Boston, Massachusetts, to attend a function. Roxanne reported that when her daughter entered her automobile for the drive, Barbara put her head down and burst into tears.
Detective Camara included the foregoing allegations in an affidavit in support of two search warrants—one for the coffee house, and the second for defendant's residence in Barrington.2 On September 20, 2005, three days after the alleged incident, the chief judge of the District Court authorized the search warrants. Members of the Warren and Barrington Police Departments searched both locations later that day. The police discovered a clear plastic bag of marijuana that was situated on top of $567 in cash in defendant's bedroom; they also found a scale3 and two cameras, one of which was digital. On the back deck outside the home, the police found a potted marijuana plant. All of these items were seized; no contraband was found at the coffee house.
By examining the information stored on the digital camera with software designed to recover deleted material, the police were able to extract approximately one-hundred photographs, many of which depicted the backsides of women who were in public areas and apparently unaware of defendant's camera prowess. One picture, however, showed Barbara kneeling beside defendant's dog, and three others depicted the area underneath a girl's skirt. The undergarment in these photos matched the description of Barbara's clothing, and the
[ 972 A.2d 637 ]

police concluded that these were the photographs defendant had taken of the child.
The defendant subsequently was charged by way of two criminal informations: one charged that defendant (1) unlawfully cultivated a controlled substance, marijuana, and (2) unlawfully possessed marijuana;4 the second criminal information charged that defendant violated G.L. 1956 § 11-64-2, a felony, by using "an imagining device to capture, record and store visual images of the intimate area of a ten year old girl, without her knowledge or consent under circumstances in which she would have a reasonable expectation of privacy, all for the purpose of sexual arousal, gratification or stimulation."5
The defendant moved in both cases to suppress the evidence found at his Barrington residence, and after a hearing, the trial justice, in a written decision, ordered the evidence suppressed. The trial justice concluded that Det. Camara's affidavit failed to establish a nexus between the items to be seized—cameras and photographic images—and the location to be searched, defendant's home. He noted that, although the affidavit detailed the purported incident that took place at the coffee house, it referred to defendant's home only in the last paragraph.6 Furthermore, the trial justice determined that the facts articulated in the affidavit were insufficient to draw a reasonable inference that "contraband or evidence of a crime would be found at the defendant's residence in Barrington." The trial justice found that the warrant to search defendant's home was not supported by the requisite probable cause, and he therefore suppressed the evidence seized at that location. The state timely appealed pursuant to G.L. 1956 § 9-24-32.7
II
The Validity of the Warrant to Search Byrne's Home
A
Standard of Review
We begin by noting that, in the case before us, a search warrant was issued based on a sworn affidavit by a police officer that was submitted to a neutral and detached judicial officer, a requirement envisioned by the Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution.8 "The Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of probable cause." State v. Verrecchia,880 A.2d 89, 94 (R.I.
[ 972 A.2d 638 ]

2005); see also Super. R.Crim. P. 41(c); State v. Pratt,641 A.2d 732, 736 (R.I.1994). Probable cause must be ascertained within the four corners of the affidavit prepared in support of the warrant, State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975), and based on the totality of the circumstances presented in the affidavit. Illinois v. Gates,462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. King,693 A.2d 658, 661 (R.I.1997); Pratt, 641 A.2d at 736. In making this determination, the issuing magistrate must review the affidavit and, based on the facts contained therein, together with the reasonable inferences that may be drawn from those facts, make a practical, commonsense determination as to whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. 2317; see also King, 693 A.2d at 661; Pratt, 641 A.2d at 736.
It is incumbent upon the trial justice and the reviewing court to accord great deference to the issuing magistrate's probable-cause determination, so long as there is a showing of "a substantial basis from which to discern probable cause." State v. Correia,707 A.2d 1245, 1249 (R.I. 1998); see also Gates, 462 U.S. at 236, 103 S.Ct. 2317; Verrecchia, 880 A.2d at 95. In explaining this deferential standard of review, we succinctly have stated:
"[T]his Court's `after-the-fact scrutiny * * * of the sufficiency of an affidavit should not take the form of de novo review.' [Gates, 462 U.S. at 236, 103 S.Ct. 2317]. Rather, we give deference to the issuing magistrate's determination of probable cause and confine ourselves to reviewing whether the magistrate had a substantial basis for his finding of probable cause. Id. Although `the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo,' Ornelas v. United States,517 U.S. 690[, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)], a deferential standard of review should be applied when reviewing a magistrate's decision to issue a warrant because `[t]he Fourth Amendment demonstrates a strong preference for searches conducted pursuant to a warrant, * * * and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches.' [Id. at 699, 116 S.Ct. 1657 (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317)]." King, 693 A.2d at 661 (internal quotation marks omitted).9
Because there is "a strong preference for searches conducted pursuant to a warrant," affidavits are to be interpreted in a realistic fashion that is consistent with common sense, and not subject to rigorous and hypertechnical scrutiny. See Gates, 462 U.S. at 235-39, 103 S.Ct. 2317 (discussing
[ 972 A.2d 639 ]

the United States Supreme Court's reasoning for abandoning the two-pronged test established in Aguilar v. Texas,378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States,393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of a practical approach for determining whether an affidavit supplies sufficient probable cause). In Verrecchia, 880 A.2d at 94, we declared in the clearest of terms that "the approach to the probable cause question should be pragmatic and flexible." "The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit," and "in doubtful cases, the reviewing court should give preference to the validity of the warrant." United States v. Peacock,761 F.2d 1313, 1315 (9th Cir.1985); see also United States v. Ventresca,380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("the resolution of doubtful or marginal cases * * * should be largely determined by the preference to be accorded to warrants").
We further note that "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States,517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Finally, we review a trial justice's determination of the existence (or nonexistence) of probable cause de novo. Verrecchia, 880 A.2d at 95; Correia, 707 A.2d at 1249. With these principles in mind, we begin our analysis.
B
Analysis
The singular issue on appeal is whether the information set forth in Det. Camara's affidavit established a sufficient nexus between the items sought in the warrant—including the camera—and defendant's home in Barrington to allow the chief judge of the District Court, the issuing magistrate in this case, to draw a reasonable inference of probable cause. The state argues that, because it was "fairly probable" that defendant would take the camera containing digital images of Barbara's intimate areas to his home, the chief judge correctly decided that there was sufficient probable cause to search that location. As such, the state contends that the trial justice failed to accord the requisite deference to the District Court judge's earlier probable-cause determination, and committed reversible error when he excluded the fruits of the search.
In this case, the trial justice declared:
"[T]here are no facts articulated in [Det.] Camara's affidavit that support a reasonable inference that contraband or evidence of a crime would be found at the defendant's residence in Barrington. In the simplest of terms, it was not reasonable to infer that Byrne took the contraband discussed in [Det.] Camara's affidavit to his residence without any underlying facts from which such an inference could `logically and reasonably be drawn.' Therefore, the affiant's failure to allege any facts connecting the property to be seized with the location to be searched is fatal." (Emphases added.)
The trial justice failed to articulate what additional underlying facts were, in his view, necessary to establish a reasonable inference that defendant took the camera home. In this case, the affiant alleged that defendant took several pictures of the child-victim's undergarments with a camera and further alleged that, in several shots, the camera was focused under the child's skirt. Although the alleged crime occurred at defendant's place of business, and the only reference to defendant's
[ 972 A.2d 640 ]

home was in the final paragraph of the affidavit (although the home was described with particularity in the warrant), it is our view that a reasonable inference could be drawn from these facts that the camera—the instrumentality of the crime and a handheld, easily transportable item of personal property—could be found at defendant's residence. Short of surveillance or actual observation of defendant taking the camera home, we are hard-pressed to envision what additional facts connecting the camera to defendant's home could be alleged to support this inference. Evidence of actual observation is not a constitutional prerequisite for a finding of probable cause.10
Our learned colleagues on the Massachusetts Supreme Judicial Court recently explained that "[t]he requisite nexus between the criminal article or activity described in the affidavit and the place to be searched need not be based on direct observation." Commonwealth v. Anthony,451 Mass. 59, 883 N.E.2d 918, 926 (2008). Rather, it "may be found in `the type of crime, the nature of the * * * items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought in the warrant].'" Id. (quoting Commonwealth v. Cinelli,389 Mass. 197, 449 N.E.2d 1207, 1216 (1983)); see also United States v. Rambis,686 F.2d 620, 624 (7th Cir.1982); United States v. Lucarz,430 F.2d 1051, 1055 (9th Cir.1970); State v. Pierce,358 N.W.2d 672, 673 (Minn.1984). We agree with the holding in Anthony. This Court never has declared that direct observation of the suspect with the contraband at or near the area to be searched is required for a finding of probable cause; such a prerequisite is neither pragmatic nor flexible. Verrecchia, 880 A.2d at 94.
In this case, defendant was charged, inter alia, with violating the video voyeurism statute, § 11-64-2, which states in pertinent part:
"(1) A person is guilty of video voyeurism when, for the purpose of sexual arousal, gratification or stimulation, such person:
"(a) Uses, installs or permits the use or installation of an imaging device to capture, record, store or transmit visual images of the intimate areas of another person without that other person's knowledge and consent, and under circumstances in which that other person would have a reasonable expectation of privacy."
The defendant allegedly photographed the undergarments of a ten-year-old girl. Although these images may not rise to the level of child pornography—a question that is not before us11—the similarities between
[ 972 A.2d 641 ]

this case and child pornography prosecutions cannot escape us. "[V]iewing and possessing child pornography is, by its nature, a solitary and secretive crime." State v. Brennan,674 N.W.2d 200, 206 (Minn.Ct.App.2004).
"The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence." United States v. Riccardi,405 F.3d 852, 861 (10th Cir.2005) (quoting United States v. Lamb,945 F.Supp. 441, 460 (N.D.N.Y.1996)).
See also State v. Felix, 942 So.2d 5, 10 (Fla.Dist.Ct.App.2006) (quoting same).12 We agree with this assessment, and we are satisfied that the nature of defendant's alleged crime supports a reasonable inference that he would transport the illicit images of the child to his Barrington residence for perusal in the privacy of his own home.
In addition, we conclude that the nature of the instrumentality sought to be seized—a camera—supports a reasonable inference that the camera and the images it contained could be found at defendant's residence. As the trial justice noted: "Photographic and data storage technology has advanced to the point where it is within anyone's grasp—literally—to capture digital images with palm-sized cameras and cell phones, and quickly and quietly store them on personal computers for private viewing or public distribution." Common sense suggests that a camera is a small, easily transportable item of personal property. See Brennan, 674 N.W.2d at 206 (it was reasonable to infer that, because of the ease with which the defendant could transport his portable work laptop to his house, "the illicit images found on the laptop would also be found on [the defendant]'s home computer"). Equally noteworthy is that there is no indication in this case that the camera was work related or in any way connected to the operation of defendant's coffee house. Cf. State v. Ricci,472 A.2d 291, 297-98 (R.I.1984) (a reasonable inference could be drawn that stolen earrings were located at the defendant's place of business based on information that the defendant sold the contraband in the ordinary course of business to a known customer of jewelry manufacturers, even though the sale did not take place at that location). Here, all that was necessary was a reasonable inference that defendant took his camera home. In short, we are of the opinion that the allegations set forth in Det. Camara's affidavit permitted a reasonable inference that the camera and the incriminating photographs likely were to be found at defendant's residence.13See United States v. Summage,
[ 972 A.2d 642 ]

481 F.3d 1075, 1078 (8th Cir.2007) (it was reasonable to infer that sexually explicit video and photographs taken by the defendant would be located at his new residence, even though he lived elsewhere at the time of the incident at issue).
Lastly, defendant argues, and the trial justice found, that Det. Camara's affidavit failed to establish an adequate nexus between the camera and defendant's home in large part because the affidavit was devoid of any "underlying facts" from which an inference could be drawn establishing that the camera was at that location. For example, defendant points out that the affidavit did not show that defendant's home was placed under surveillance or that the police followed defendant from the coffee house to his residence while he was carrying the camera; nor did it set forth any facts that placed defendant at home. However, a nexus between the items to be seized and the place to be searched does not rise or fall on direct observations, or, as the trial justice found, on the existence of "underlying facts" connecting the two. United States v. McKinney,758 F.2d 1036, 1043 (5th Cir.1985); Rambis, 686 F.2d at 623-24; Lucarz, 430 F.2d at 1055; Anthony, 883 N.E.2d at 926; see also Pratt, 641 A.2d at 736 (issuing magistrate may draw reasonable inferences from all the facts contained in the affidavit). Because a judicial officer may draw reasonable inferences from the nature of the crime alleged in the affidavit and the instrumentality used in its commission, we are satisfied that the affidavit in this case provided an adequate basis for the District Court judge's finding of probable cause. Indeed, save for evidence of direct observation of defendant transporting the camera to his home, we can conceive of no additional evidence that would serve further to establish a nexus between the items sought in the warrant and the place to be searched.14
III
Conclusion
A judicial officer confronted with an affidavit in support of a warrant must decide the probable-cause question based on the totality of the circumstances contained therein and in light of common sense and the realities of everyday life. That decision is to be accorded deference by reviewing courts, and in close cases, the validity of the warrant should be upheld.
Thus, in light of this deferential standard and our de novo review of the trial justice's probable-cause determination, we hold that, based on the nature of the alleged offense and the instrumentality used in its commission, the District Court judge who issued the warrant had a substantial basis to find that there was probable cause to believe that the defendant would conceal the illicit images at his home.15
[ 972 A.2d 643 ]

Accordingly, for the reasons stated in this opinion, we vacate the order of the Superior Court and remand the case for further proceedings consistent with this opinion.
Footnotes
1. We use fictitious names for the alleged child victim and her parents to afford the family a measure of privacy.
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2. Detective Camara requested permission for the police to seize "any and all camera(s), computer(s), lap tops, electronic and digital data storage devices such as zip drives, floppy disks, CD's, DVD's, etc.[,] [a]s well as contraband or evidence of criminal activity."
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3. The police concluded that the scale was of the kind often used for weighing marijuana.
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4. P2/05-3433A.
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5. P2/05-3432A.
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6. The warrant described defendant's home in detail.
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7. General Laws 1956 § 9-24-32 states, in pertinent part:

"In any criminal proceeding, the attorney general shall have the right to object to any finding, ruling, decision, order, or judgment of the superior court or family court, and the attorney general may appeal the findings, rulings, decisions, orders, or judgments to the supreme court at any time before the defendant has been placed in jeopardy * * *."
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8. This requirement is not without certain narrowly drawn exceptions. See, e.g., State v. Barkmeyer,949 A.2d 984, 996-97 (R.I.2008) (a warrantless search of a home is permissible when an occupant who has authority over the premises voluntarily consents to the search); State v. Portes,840 A.2d 1131, 1136 (R.I.2004) (warrantless entry of a home is permissible in exigent circumstances when the police are in pursuit of a criminal that they have probable cause to believe committed an offense, or in an emergency requiring preventive action). None of these exceptions apply in this case.
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9. In Illinois v. Gates,462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court elaborated on the importance of adhering to a deferential standard of review:

"If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring `the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.'" Id. at 236, 103 S.Ct. 2317 (quoting United States v. Chadwick,433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)).
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10. In support of his ruling that the affidavit was devoid of any facts from which a reasonable inference could be made that the contraband was at defendant's home, the trial justice cited State v. Verrecchia,880 A.2d 89 (R.I.2005), and State v. King,693 A.2d 658 (R.I. 1997), cases in which the reasonable inferences that established the requisite nexus were based on police surveillance and direct observation of the defendant (Verrecchia) or illegal activity (King) at the place to the searched. These cases do not, however, stand for the proposition that only police surveillance or direct observation of the defendant's activities at or around the location to be searched serves to fulfill the constitutional threshold from which a reasonable inference can be made that the items sought to be seized are at that location. As we explain in this opinion, direct observation of a suspect at or near the location to be searched is not a prerequisite to the establishment of reasonable inferences.
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11. We observe that the United States Court of Appeals for the Third Circuit has held, in the context of a federal child pornography statute, that visual depictions of clothed genitalia may fall within the meaning of "`lascivious exhibition of the genitals or pubic area,'" and thereby qualify as child pornography. United States v. Knox,32 F.3d 733, 743-51 (3d Cir. 1994). Rhode Island's child pornography statute, G.L. 1956 § 11-9-1.3, contains similar language. See § 11-9-1.3(c)(6)(v) (defining "sexually explicit conduct" as, inter alia, "[g]raphic or lascivious exhibition of the genitals or pubic area of any person").
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12. Although these cases involved the question of whether the information contained within the affidavit was too stale to support a finding of probable cause, we are of the opinion that the observations made by these courts in regard to the activities of people who collect or disseminate child pornography are relevant to the case at hand.
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13. The defendant argues that the issuing District Court judge was without a substantial basis to conclude that the images in question would be stored on a digital camera, personal computer, or other data storage device, merely because Det. Camara's affidavit did not describe the camera as being "digital." Simply put, we decline to engage in a hypertechnical examination of the affidavit. See United States v. Rogers,521 F.3d 5, 10 (1st Cir.2008) (declining to narrowly view the word "photos" in a search warrant as only to include "developed print photographs").
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14. When pressed at oral argument, defendant could not articulate any facts, other than direct observations, that would establish an adequate nexus.
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15. Because we conclude that the search warrant was valid, we need not consider the state's argument that we adopt the "good faith" exception to search warrants promulgated in United States v. Leon,468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also State v. Gomes,881 A.2d 97, 105 n. 13 (R.I.2005) (declining to address same); State v. Nunez,634 A.2d 1167, 1171 (R.I.1993) (same).

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STATE v. CORREIA
707 A.2d 1245 (1998)
STATE
v.
Christopher F. CORREIA.
No. 93-528-C.A.
Supreme Court of Rhode Island.

March 17, 1998.
Andrea J. Mendes, Aaron L. Weisman, Providence, for Plaintiff.
Catherine A. Gibran, Paula Rosin, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG and FLANDERS, JJ.



OPINION
FLANDERS, Justice.
Three ingredients comprise the factual grist for the appeal of the defendant, Christopher F. Correia (Correia), from his robbery-related convictions: (1) a police officer's trial testimony about Correia's alleged refusal to cooperate with the investigating authorities during his custodial interrogation, (2) a trial justice's consciousness-of-guilt jury instruction based upon Correia's alleged concealment of evidence and his flight from the crime scene, and (3) a magistrate's issuance of a search warrant for Correia's apartment that resulted in the seizure of incriminating evidence. After threshing over the facts and law presented by each of these judicial millings, we conclude that they are not so legally unpalatable as to warrant reversal. Hence we reject Correia's appeal, affirm his convictions, and uphold the trial justice's challenged rulings.
Facts and Travel
A Superior Court jury returned guilty verdicts against Correia on all four criminal charges lodged against him.1 The trial justice then sentenced him to sixty years with fifty years to serve (plus ten years suspended and ten years probation) on each of the first three counts and to five years on the fourth count (to be served concurrently).
The charges all arose out of a February 19, 1994 housebreak in North Providence. An elderly couple, Kathleen and Albert Peloquin, were asleep in their beds when a burglar broke into their North Providence home at approximately three-thirty in the morning. According to the Peloquins, this unwelcome visitor was wearing a gray sweatshirt and a ski mask that hid most of his face from view. Hovering in the dark at the foot of Mrs. Peloquin's bed, the interloper carried a flashlight in one hand and a long cane with a hook on the end of it in the other. He was demanding money from her when he heard another person stirring in a different part of the house. Before dashing away to confront this other individual, the encroacher hurriedly scooped a pair of earrings from a drawer in Mrs. Peloquin's bedroom bureau and then proceeded down the hallway.
Mr. Peloquin was eighty-one when this incident occurred. He had been awakened by a loud noise coming from his wife's bedroom. While Mr. Peloquin was still calling out to her, thinking that she might have fallen, the intruder entered his bedroom and stood over him as he lay in his bed. Brandishing his cane and flashlight, the housebreaker demanded to know, "Where's the money? I want the money." After Mr. Peloquin
[ 707 A.2d 1247 ]

replied that he did not have any mon ey, the assailant lashed out at him with his cane. Mr. Peloquin raised his arm to shield himself from the blow, so that the cane struck him between his elbow and his wrist. Thinking that he had thereby dispatched Mr. Peloquin, the masked man turned and began to ransack some nearby bureau drawers. But Mr. Peloquin was not yet vanquished. He seized a can of mace that he always kept underneath his pillow, rose from his bed, and advanced upon the rummaging robber from his blind side. Waiting until he could see the whites of his eyes, he fired away, releasing a torrent of pungent spray into the holes of his attacker's ski mask. Jolted by this peppery eyewash, the maced malefactor immediately began to bound for the egress—but not before the redoubtable Mr. Peloquin could add his own personal lagniappe to the bouncing bandit's sendoff by bopping him once more for good measure with the spray can itself. Thrashed and throbbing, the thumped thief flew through the living room, out the front door, over the freshly fallen snow, across the street, and through the woods toward the apartment complex that was located directly opposite from the Peloquins' home. Although he thereby escaped Mr. Peloquin's wrath, no sanctuary from the law awaited him there.
Wondering who that masked man was and wanting to thank him with a police escort for his nasty nocturnal visit, the Peloquins summoned the local constabulary, who responded by immediately coming to their home and obtaining a description of the culprit. Following the fresh trail blazed by the peppered poacher, the police eventually found their way to Correia's apartment. After twenty minutes of knocking at the door and calling on the telephone, the police finally gained entrance after one of the occupants, Daniel Crowley (Crowley), opened the door. The officer who first entered Correia's apartment immediately smelled pepper spray. Correia was there, and the police took him into custody. When they later brought him to be viewed by the Peloquins, Mr. Peloquin identified Correia as the man who had shoveled his car out of the snow two days earlier. He also indicated to the police that Correia had the same body build as the intruder.
While he was in police custody and after the police read him his rights, Correia told a police detective that he was indeed the person who had shoveled snow for Mr. Peloquin a few days earlier, but he claimed that he and Crowley had stayed in Correia's apartment throughout this particular evening and early morning. When the police pressed him for further details, Correia suddenly decided to stop talking and refused to say anything further.
Meanwhile Correia's roommate, Crowley, offered police a different version of events. According to Crowley, Correia left the apartment at about 3:30 a.m., and returned at about four o'clock, appearing very nervous. Crowley recounted that when the police knocked on the front door, Correia apparently despaired, exclaiming, "I'm busted," before hiding a cane underneath the entertainment center in their living room. The police sought and obtained a search warrant for Correia's apartment, specifying the cane and the clothing allegedly worn by the intruder as items to be seized. Although they could not locate the cane, they did find clothing in Correia's bedroom that included sweatpants and a sweatshirt that were later identified as the clothing worn by Correia on the night of the robbery. A police laboratory found traces of the pepper spray used by Mr. Peloquin on the clothing seized from Correia's apartment.
Analysis
I
The Mistrial Denial
On appeal Correia first claims that the trial court erred in denying his motion to pass the case because of an allegedly improper comment made by a testifying policeman about Correia's decision not to answer further police questions after he had initially agreed to waive his rights and had begun to respond to their queries. We first observe that this is not a case in which a defendant immediately decided to remain silent after having been advised of his Miranda rights. On the contrary, after having been advised of his right to remain silent and of his other Miranda rights, defendant began to answer
[ 707 A.2d 1248 ]

the police officers' interrogatories about the incident they were investigating. For instance Correia told the police that he was the person who had shoveled snow for the Peloquins some two days before the robbery. However, after claiming that he had remained in his apartment all evening, defendant apparently decided he should stop talking to the police, whereupon he indicated that he did not want to cooperate with them any further.
At trial the interrogating police officer was asked whether Correia had stated anything further to him after admitting to his earlier encounter with Mr. Peloquin. The officer responded, "The conversation terminated. He didn't want to cooperate." Correia's attorney immediately moved to pass the case because he claimed the officer had improperly commented on defendant's constitutional right to remain silent. Although the trial justice ruled that there was no reason to pass the case, she did give two separate cautionary instructions to the jurors telling them that Correia had a right to remain silent and that they could not draw any adverse inferences from his doing so.
We conclude that the trial justice did not err in refusing to pass the case. Although a defendant's post-arrest silence may not generally be used against him or her at trial, see Doyle v. Ohio,426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Doyle rule is inapplicable when, as here, a defendant waives his or her Miranda rights and decides to speak to the police after having been advised of his or her right to remain silent. See State v. Rossier,672 A.2d 455, 457 (R.I. 1996) (holding no violation of the defendant's right to remain silent when the defendant made voluntary statements to the police after a knowing waiver of such rights); see also Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In such a situation, police witnesses at trial are allowed to relate to the jury their observations concerning a defendant's decision to stop talking with the police after initially having done so. When as here a defendant initially waives his or her right to remain silent but later invokes that right by refusing to answer further questions, it is not improper for the prosecutor or the police witness to explain how or why the interview concluded. See United States v. Harris,956 F.2d 177, 181 (8th Cir.1992) (prosecutor may note that, after making incriminating statements, the defendant concluded the interview); Rowan v. Owens,752 F.2d 1186, 1190 (7th Cir.1984) (prosecutor may note without undue emphasis that the defendant had initially given statements but had ended interrogation); United States v. Williams,556 F.2d 65, 67 (D.C.Cir. 1977) (recounting witness may conclude account of interview in natural fashion by indicating that the defendant chose to stop answering questions); but cf. United States v. Goldman,563 F.2d 501, 504 (1st Cir.1977) (noting that Miranda allows the defendant to invoke the right to remain silent at any time "`prior to or during questioning " but finding no error because defendant voluntarily continued to make statements after having refused to respond to certain police inquiries).
Moreover, even if the police officer's testimony commenting on Correia's alleged lack of cooperation had been improper, the trial justice's instructions to the jury were apt to dispel any prejudice resulting from such remarks. Thus we are not "convinced that the cautionary instructions were untimely or ineffective" or that "the trial justice did not disabuse the jurors' minds of [any alleged] prejudicial effect." State v. Marrapese, 116 R.I. 1, 7, 351 A.2d 95, 98 (1976). In sum we hold that the trial justice correctly refused to pass the case because of the testifying policeman's comment about Correia's post-waiver decision to cease responding to further police questioning about his alleged involvement in the robbery.
III
The Flight and Evidence-Concealment Instruction
Correia next contends that the trial justice's consciousness-of-guilt instruction was improper because Correia's actions upon returning to his apartment at four in the morning did not in and of themselves constitute flight or evidence concealment. Flightfrom-the-crime-scene evidence can be considered
[ 707 A.2d 1249 ]

by a jury as circumstantial evidence of a cause to issue a search warrant for his apartdefendant's guilt. See State v. Reyes, 705 ment.
A.2d 1375 (R.I. 1998). A jury instruction on this subject is warranted if the jury can reasonably infer from a defendant's behavior that his or her actions amounted to flight from the crime scene, that the defendant's flight suggests that the accused was conscious of his or her guilt, that the guilt related to the crime at issue, and that the accused's consciousness of guilt concerning the charged crime is some evidence of his or her actual guilt of that crime. See State v. Cooke,479 A.2d 727, 732-33 (R.I.1984) (adopting the four-pronged test set forth in United States v. Myers,550 F.2d 1036, 1049 (5th Cir.1977), for determining the relevancy of flight evidence).
From the totality of the evidence introduced at this trial, we conclude that the trial justice properly instructed the jury on consciousness of guilt based upon Correia's actions in fleeing from the Peloquins' home, his initial attempts to elude and/or to evade the police investigation, and his efforts in his apartment to conceal evidence of his connection to the crime. The evidence adduced at trial suggested that after refusing to answer the telephone or the doorbell for twenty minutes, defendant looked out of a peephole in his door and, espying the police, exclaimed "I'm busted." He also had been pacing back and forth in and around his apartment, had removed his clothing, and, according to Crowley, hid the cane he had been carrying underneath the entertainment center. A reasonable jury could infer consciousness of guilt from such evidence. On the basis of these facts and the other indicia of flight and evidence concealment in this record, we hold that the trial justice properly instructed the jury on such matters.
III
Sufficiency of the Evidentiary Support far the Search Warrant
Finally, Correia claims that the trial justice improperly denied his motion to suppress the clothing evidence seized from his apartment because of a lack of probable cause to issue a search warrant for his apartment.
Both article 1, section 6 of our Rhode Island Constitution and Rule 41(c) of the Superior Court Rules of Criminal Procedure require that issuance of a warrant empowering government agents to search a person's home for evidence of a crime be predicated upon a showing of probable cause to believe that evidence relevant to the commission of a crime will be found at the place to be searched. See generally State v. Jeremiah,696 A.2d 1220 (R.I.1997) (surveying historical origins of warrant requirements). Whether probable cause exists is a "commonsense, practical" question requiring examination of the "totality-of-the-circumstances" appearing from the warrant application materials. Illinois v. Gates,462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543-44 (1983).
In revisiting this area of the law, we are reminded of the Supreme Court's classic probable cause definition in Draper v. United States,358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332 (1959):
"`In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, [338 U.S. 160] 175 [69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949)]. Probable cause exists where the facts and circumstances within [the issuing magistrate's] knowledge and of which [he or she] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the believe that' an offense has been or is being committed. Carroll v. United States,267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)]."
When assaying the propriety of a search warrant, we review de novo the Superior Court's probable cause determination, see State v. Rios,702 A.2d 889 (R.I.1997), although we, like the trial justice, should give great deference to the issuing magistrate's determination if it appears that he or she had a substantial basis from which to discern probable cause. See Gates, 462 U.S. at 236,
[ 707 A.2d 1250 ]

103 S.Ct. at 2331, 76 L.Ed.2d at 547; State v. King,693 A.2d 658, 661 (R.I.1997); cf. Ornelas v. United States,517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996) (appellate courts should apply de novo review to stop-and-frisk and warrantless searches).
Here the affidavit submitted by the police in support of the search-warrant application referenced a written statement that the police had obtained from Correia's roommate. Crowley's statement indicated that he was in the apartment when Correia came back at approximately four in the morning, took off his clothing, hid the walking cane he had been carrying underneath the entertainment center in the living room, and stated "I'm busted" when the police knocked on the apartment door. The police specifically requested that the magistrate allow them to seize not only the walking cane, but also the sweatpants and sweatshirt that defendant was believed to have been wearing when he reentered the apartment and before he doffed his clothing. The affidavit also indicated that these facts corroborated information obtained earlier from Mr. Peloquin regarding his having been bludgeoned with a cane.
We are satisfied that the facts and circumstances (and reasonable inferences to be drawn therefrom) evident within the four corners of these warrant-application materials provided the issuing magistrate with a substantial basis for concluding (relying upon a probability greater than mere suspicion) that criminal activity had taken place and "that contraband or evidence of a crime will be found in a particular place." State v. Pratt,641 A.2d 732, 736 (R.I.1994) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548); State v. Baldoni,609 A.2d 219, 220 (R.I.1992) (probable cause requires less than prima facie showing of criminal activity); State v. Kawal,423 A.2d 1380, 1383 (R.I.1980) (judicial officer may draw reasonable inferences from the affidavit); State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975) (probable cause must appear from the four corners of the application); see also Marderosian v. United States,337 F.2d 759, 760 (1st Cir.1964) (probable cause requires more than mere suspicion).
Conclusion
For these reasons we deny the defendant's appeal and affirm the judgments of conviction.
BOURCIER and GOLDBERG, JJ., did not participate.
Footnotes
1. The criminal charges, in four separate counts, were as follows: count 1, burglary; count 2, first-degree robbery; count 3, first-degree robbery; and count 4, assault on a person over the age of sixty.
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STATE v. VERRECCHIA
880 A.2d 89 (2005)
STATE
v.
Albert VERRECCHIA.
No. 2001-554-C.A.
Supreme Court of Rhode Island.

August 23, 2005.
Virginia M. McGinn, Providence, for Plaintiff.
Dena L. Paolino, Cranston, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.



OPINION
ROBINSON, Justice.
The defendant, Albert Verrecchia, was originally indicted by a grand jury on sixty-nine counts of criminal activity as part of a multiperson, multicount indictment. He was convicted on twenty-nine of those counts, and he appealed the convictions to this Court on various grounds including his contention that certain evidence obtained from a building in Burrillville should not have been admitted into evidence.1 We
[ 880 A.2d 91 ]

sustained that appeal in part and remanded the case to the Superior Court for a hearing on the defendant's motion to suppress the evidence that had been obtained as the result of the search of the building in Burrillville, which search was conducted by the police acting pursuant to a warrant.2State v. Verrecchia,766 A.2d 377 (R.I.2001). After holding that hearing, the motion justice denied the motion to suppress, and defendant now appeals from that ruling. We deny the defendant's appeal and affirm the judgment of conviction.
Facts and Travel
In 1996, the Rhode Island State Police were investigating what they believed was an extensive criminal enterprise conducted by certain people who frequented the Golden Nugget Pawnshop.3 During the course of the investigation, Michael Rossi, a former associate and alleged criminal partner of defendant in this case, was arrested. While he was being held at the Adult Correctional Institutions (ACI), Rossi agreed to become a confidential informant in exchange for the state's agreement to recommend a lighter sentence than might otherwise have been imposed.
Rossi entered into a cooperation agreement with the state police and, as a demonstration of his good faith, he agreed to help the police locate certain firearms that he alleged Verrecchia had stored on behalf of the Golden Nugget gang. While Rossi was imprisoned at the ACI, Verrecchia visited him several times. During the course of their conversations, Verrecchia informed Rossi that he had stored some firearms in a coffin-like container in a barn4 located next to the United States Post Office parking lot in Harrisville.5 Upon receiving this information from Rossi, the state police in cooperation with the Federal Bureau of Investigation organized a sting operation focused on Verrecchia.
The state police told Rossi to inform Verrecchia that a soon-to-be-released fellow inmate named Charles Kennedy (whose pseudonym was "the Ghost")6 wished to purchase some firearms and that upon his release from prison he would contact Verrecchia. Thereafter, on May 9, 1996, at approximately 10:07 a.m., Det.
[ 880 A.2d 92 ]

Sgt. Steven G. O'Donnell of the Rhode Island State Police, while serving in an undercover capacity and posing as "the Ghost," contacted Verrecchia at his auto repair business in Johnston and made arrangements to meet him at the Dunkin' Donuts store on Plainfield Pike in Johnston at 11 a.m. on that same day. When the two men met at that prearranged time and place, the undercover detective informed Verrecchia that he was interested in purchasing an AK-47 assault rifle and a.45-caliber handgun. Verrecchia indicated that he possessed such items, and the two men agreed that the purchase price would be a "G note."7 Verrecchia and the undercover detective then drove to Verrecchia's place of business in Johnston. The final purchase arrangements were made, and the two agreed to meet at 2:30 p.m. that afternoon at the Wal-Mart Plaza on Route 14 on the Johnston/Cranston line. During his meeting with Verrecchia, Det. Sgt. O'Donnell was wearing an audio transmitter, and the encounter was recorded by a surveillance team consisting of members of the state police and the FBI.8
After the meeting between Verrecchia and Det. Sgt. O'Donnell ended, the surveillance team observed Verrecchia getting into a tow truck at his place of business and driving to Burrillville. The aerial component of the surveillance team followed the tow truck to a United States Post Office parking lot in Burrillville, which parking lot was located next door to a barn-like structure. There, the tow truck was parked, and its only occupant was observed leaving the vehicle and entering the barn. Shortly thereafter, Verrecchia was observed leaving the barn. He was carrying a cardboard box that he placed in the tow truck.
Later, Verrecchia and Det. Sgt. O'Donnell met at the Wal-Mart Plaza in accordance with their arrangement, and Verrecchia produced the requested firearms for Det. Sgt. O'Donnell's inspection. Upon the latter's approval of the firearms, Verrecchia transferred them to Det. Sgt. O'Donnell's vehicle. At that point, the undercover detective signaled the members of the surveillance team to come forward and arrest Verrecchia.
During the subsequent search of Verrecchia's truck, the police discovered a sawed-off shotgun and a brown paper bag containing what was later determined to be stolen jewelry. Meanwhile, a criminal information clearinghouse indicated to the police that the firearms that Verrecchia had placed in Det. Sgt. O'Donnell's vehicle were stolen.9
After defendant's arrest, the police sought, obtained, and executed a search warrant10 for the barn in Burrillville, from which the surveillance team had observed defendant leaving with a package shortly before he was arrested near the border between Johnston and Cranston. It is the
[ 880 A.2d 93 ]

validity of this search warrant that is the subject of this appeal.
At the suppression hearing, which was conducted by the Superior Court after our decision and remand in State v. Verrecchia,766 A.2d 377, 381 (R.I.2001), Verrecchia maintained that the affidavit that Cpl. Joseph S. DelPrete of the Rhode Island State Police submitted to support the application for a warrant to search the barn in Burrillville was defective in that it did not provide the issuing magistrate with sufficient evidence upon which to base a determination of probable cause. At that hearing, Verrecchia also requested that the motion justice conduct a so-called Franks hearing.11 To support that request, he asserted that the affidavit12 submitted by the state police in support of the search warrant contained numerous false statements and omissions.
After reviewing the evidence submitted by the parties13 and after considering the arguments of counsel, the motion justice denied the relief sought by Verrecchia, who then timely appealed.
On appeal, Verrecchia contends that the motion justice erred in denying the motion to suppress; he argues that there was an insufficient showing of probable cause to justify the issuance of the search warrant. He also argues that he was entitled to a Franks hearing because, in his view, he made a "substantial preliminary showing" that the affidavit submitted in support of the search warrant contained "deliberate and/or reckless falsehoods and omissions of material information." Accordingly, he asserts that the motion justice abused his discretion by not granting him a Franks hearing.
We reject defendant's contentions in their entirety.
Analysis
1. The Motion to Suppress the Search Warrant.
Verrecchia challenges the validity of the search warrant for the barn. He maintains that the supporting affidavit contained numerous misleading statements and unsubstantiated allegations concerning the police surveillance operation. He contends that the existence of those purported misrepresentations and unsubstantiated allegations becomes clear when one compares the affidavit with subsequent trial testimony describing the same surveillance operation. Verrecchia asserts that, by failing to give sufficient weight to those inconsistencies, the motion justice erred when he denied the motion to suppress.14
[ 880 A.2d 94 ]

The Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of probable cause.15See State v. Pratt,641 A.2d 732, 736 (R.I.1994); see also Rule 41(c) of the Superior Court Rules of Criminal Procedure; State v. Correia,707 A.2d 1245, 1249 (R.I.1998); State v. Jeremiah,696 A.2d 1220, 1222 (R.I.1997).
The United States Supreme Court has indicated that the existence of probable cause should be determined pursuant to a flexible "totality-of-the-circumstances analysis." Illinois v. Gates,462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Supreme Court in Gates elaborated on this analytical approach as follows:
"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for * * * conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. 2317 (citing Jones v. United States,362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)).
In other words, the approach to the probable cause question should be pragmatic and flexible. See State v. Spaziano,685 A.2d 1068, 1069 (R.I.1996) ("Probable cause is determined under a commonsense test * * *."); see also Correia, 707 A.2d at 1249; State v. Hightower,661 A.2d 948, 959 (R.I.1995). The magistrate is permitted to draw reasonable inferences from the affidavit presented to him or her. Pratt, 641 A.2d at 736 ("[A] judicial officer may draw reasonable inferences from the affidavit in order to reach a determination of probable cause * * *.").
Moreover, as we have previously stated, "an affidavit offered in support of a search warrant should not be judged as if it had been drafted by one schooled in the niceties of the law nor should it be interpreted in a hypertechnical manner." State v. Nerney, 110 R.I. 364, 365, 292 A.2d 882, 883 (1972); see also United States v. Ventresca,380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("[W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner."); see generally Massachusetts v. Upton,466 U.S. 727, 732, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Gates, 462 U.S. at 230-31, 103 S.Ct. 2317. The First Circuit has summarized these principles in plain English as follows: "Probable cause exists when the affidavit demonstrates in some trustworthy fashion the likelihood that an offense has been or is being committed." United
[ 880 A.2d 95 ]

States v. Santana,342 F.3d 60, 65 (1st Cir.2003), cert. denied, 540 U.S. 1206, 124 S.Ct. 1478, 158 L.Ed.2d 129 (2004).16
Our appellate review of probable cause rulings made by judges confronted with motions to suppress is conducted on a de novo basis. See State v. Girard,799 A.2d 238, 249 (R.I.2002) ("`Because probable cause is an issue of constitutional magnitude, this Court reviews de novo such mixed questions of law and fact in accordance with the dictates of Ornelas v. United States,517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 [1996] * * *.'"); see also State v. Holdsworth,798 A.2d 917, 920-21 (R.I.2002); State v. Apalakis,797 A.2d 440, 443 (R.I.2002); State v. Campbell,691 A.2d 564, 569 (R.I.1997) ("This Court will review de novo legal questions and mixed questions of law and fact insofar as those issues impact on constitutional matters * * *.").
In conducting such a review, however, this Court gives reasonable deference to the trial justice's findings of historical fact. As the United States Supreme Court said in Ornelas v. United States,517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts * * *." See Simpson v. State,769 A.2d 1257, 1265-66 (R.I.2001) (explaining the relationship between our de novo review of the ultimate issue of the infringement of constitutional rights and our deferential stance vis-à-vis findings of historical fact and the inferences drawn from those facts); see also Ker v. California,374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Santana, 342 F.3d at 65 ("We review de novo the district court's determination that the facts in the affidavit constituted probable cause. * * * Any findings of fact are reviewed for clear error."); McKinney v. State,843 A.2d 463, 466 (R.I.2004); State v. Travis,568 A.2d 316, 320 (R.I.1990).
When it appears that there is a substantial basis upon which a magistrate predicated a probable-cause determination, a reviewing court should give great deference to that determination. See, e.g., Correia, 707 A.2d at 1249 ("[W]e, like the trial justice, should give great deference to the issuing magistrate's determination if it appears that he or she had a substantial basis from which to discern probable cause."); see also Gates, 462 U.S. at 236, 103 S.Ct. 2317; State v. Rios,702 A.2d 889, 890 (R.I.1997); Spaziano, 685 A.2d at 1069; Pratt, 641 A.2d at 737; State v. Baldoni,609 A.2d 219, 220 (R.I.1992).17
We are particularly impressed by the concise summary of several of the foregoing
[ 880 A.2d 96 ]

principles that is to be found in the following passage authored by Judge (now Justice) Anthony Kennedy while he was serving on the United States Court of Appeals for the Ninth Circuit in the case of United States v. Peacock,761 F.2d 1313 (9th Cir.1985):
"For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched, * * * or that the evidence is more likely than not to be found where the search takes place. * * * The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.
"In reviewing the magistrate's determination that there was probable cause, we need find only that there was a substantial basis for the conclusion. * * * In doubtful cases, the reviewing court should give preference to the validity of the warrant." Id. at 1315.
Verrecchia does not dispute that he and the undercover detective actually did meet at the Wal-Mart Plaza and that, when they met, Verrecchia produced an AK-47 assault rifle and a .45-caliber handgun for the undercover detective's inspection and purchase. Furthermore, considering the limited nature of our previous remand to the Superior Court, he is not now challenging the validity of his subsequent arrest. What he does challenge is the validity of the search warrant for the barn in Burrillville. He supports this challenge by comparing Cpl. DelPrete's affidavit with the trial testimony of Trooper Richard C. Ryan of the Rhode Island State Police concerning the police surveillance operation. Verrecchia notes that Trooper Ryan was the only member of the surveillance team to testify; and he argues that there were some inconsistencies between Cpl. DelPrete's affidavit and Trooper Ryan's trial testimony concerning the events that occurred between Verrecchia's first encounter with the undercover detective in Johnston and his subsequent meeting with that detective at the Wal-Mart Plaza. Verrecchia contends that these alleged inconsistencies are fatal to the validity of the search warrant and concludes that the motion justice should have granted his motion to suppress.
In the affidavit that he submitted in support of his application for a search warrant, Cpl. DelPrete stated that "a confidential and reliable informant" (Rossi) had informed the police that Albert Verrecchia was storing a variety of stolen goods, including weapons, in a "barn type building" located "next to the United States Post Office parking lot in Harrisville, Rhode Island." The informant gave the police a telephone number that later was determined to be that of Verrecchia's place of business.
On May 9, 1996, Det. Sgt. O'Donnell called the telephone number and asked to speak to "Al." The individual who had answered the call identified himself as "Al." The undercover detective identified himself as "the Ghost" and arranged to meet with "Al" at a specified time and place to discuss the purchase of firearms. The affidavit said that "the Ghost" was the "prearranged code name" that the confidential informant (Rossi) had given Det. Sgt. O'Donnell for him to use in dealing with Verrecchia.
Corporal DelPrete further said in his affidavit that, at their scheduled meeting, Det. Sgt. O'Donnell told Verrecchia what type of firearms he wished to purchase.18 Corporal DelPrete also said that Verrecchia
[ 880 A.2d 97 ]

told the undercover detective that he would bring a few samples from which the undercover detective could choose. The parties later arranged to meet at 2:30 p.m. that same day at the Wal-Mart Plaza, and they then went their separate ways.
The affidavit, which was drafted on the same day as defendant's arrest, states that members of the surveillance team observed Verrecchia place a cardboard box and two duffel bags into his tow truck at his place of business. Shortly thereafter, according to the affidavit, the surveillance team observed Verrecchia drive away in his tow truck. He was next observed parking the tow truck in the United States Post Office parking lot in Burrillville. According to the affidavit, he then entered "a wooden barn shaped structure color brown located on the duplex property at 489 and 491 Chapel Street Burrillville, Rhode Island." Later, Verrecchia was seen exiting the barn to retrieve the "previously described card board [sic] box from his tow truck." According to the affidavit, he then went back into the barn with the cardboard box and later left with the same box and placed it in his vehicle.
Verrecchia says that Trooper Ryan's trial testimony concerning these events is at odds with the account given in the affidavit. He alleges that Trooper Ryan did not observe Verrecchia carry anything out of his place of business, and could not positively identify Verrecchia as the empty-handed individual who entered the barn and then left the barn with a long "white" package.19 Verrecchia further points out that Trooper Ryan's testimony as to the "white" package differs from Det. Sgt. O'Donnell's testimony that, at the Wal-Mart Plaza, Verrecchia indicated that the AK-47 was inside a multi-colored box.
We have carefully reviewed the record. Applying the above-summarized principles relative to the determination of probable cause, as well as giving reasonable deference to the findings of historical fact made by the motion justice, we conclude that there was a more than sufficient basis upon which the magistrate could find the existence of probable cause.
First, the fact that Verrecchia had been observed, earlier on the day in question, engaging in what seemed to be criminal conduct involving firearms (for which apparent criminal conduct he was arrested shortly before the affidavit was submitted) is highly relevant to the magistrate's determination that there was probable cause to search the barn in Burrillville—a building that Verrecchia had been observed visiting shortly before his arrest on firearms charges. When Det. Sgt. O'Donnell contacted Verrecchia and told him that he wished to purchase firearms, Verrecchia arranged to meet with him and set up the transaction. After they met and Det. Sgt. O'Donnell specified the weapons he wanted, Verrecchia drove to a barn, entered it, and then left the barn carrying a package,
[ 880 A.2d 98 ]

which he then placed in his tow truck. Shortly thereafter, Verrecchia delivered the requested weapons to Det. Sgt. O'Donnell and was immediately arrested by the police. It was not until after defendant's arrest that the affidavit to support the search warrant for the barn was submitted to the magistrate. We conclude that Verrecchia's arrest under these circumstances was particularly relevant to determining probable cause to search the barn in Burrillville. See United States v. Robins,978 F.2d 881, 892 (5th Cir.1992) ("A nexus between the place to be searched and the items to be seized may be established through direct observation or through normal inferences."); see also Jones v. United States,362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Chavez-Miranda,306 F.3d 973, 978 (9th Cir. 2002); United States v. McKinney,758 F.2d 1036, 1043 (5th Cir.1985).
Furthermore, although there may be minor inconsistencies between Cpl. DelPrete's affidavit and the trial testimony of Trooper Ryan concerning the events of May 9, 1996, it is clear from the record on balance that Trooper Ryan's testimony does not contradict, but rather corroborates, the affidavit with respect to the critical information that was submitted in support of the application for the search warrant for the barn.
In his decision, the motion justice rejected Verrecchia's assertion that the affiant recklessly disregarded the truth, and he stated that "[d]espite any deficiencies in information regarding the confidential informant Rossi, Corporal DelPrete's affidavit still established probable cause because the informant's tip was adequately corroborated by independent police work."20 Our review of the record reveals that both the affidavit and Trooper Ryan's testimony stated that Verrecchia and Det. Sgt. O'Donnell met with each other on May 9, 1996, in the parking lot of a Dunkin' Donuts store on Plainfield Pike, and also said that later on the same day Verrecchia parked his vehicle in the parking lot of the United States Post Office in Burrillville. Furthermore, both the affidavit and Trooper Ryan's testimony referred to a barn located near the post office as the one from which Verrecchia exited carrying what was described in the affidavit as a cardboard box and by Trooper Ryan's testimony as "a long package"; and both stated that Verrecchia placed that item in his tow truck.
The affidavit then said that Verrecchia met with Det. Sgt. O'Donnell later that afternoon at the Wal-Mart Shopping Plaza in Cranston, and that he was arrested upon delivering firearms to the undercover detective. Trooper Ryan testified that, after Verrecchia placed the package in his tow truck, the aerial surveillance team followed Verrecchia from the Burrillville parking lot to his place of business and from there to a Wal-Mart parking lot. Trooper Ryan also testified that he witnessed Verrecchia's arrest.21
Consequently, having reviewed the numerous factual statements in the affidavit at issue in this case, we hold that there was ample basis for the issuance of the warrant for the search of the barn.
[ 880 A.2d 99 ]

2. The Request for a Franks Hearing.
Verrecchia also contends that he was entitled to a hearing pursuant to the United States Supreme Court's decision in Franks v. Delaware,438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), concerning warrants that are obtained through the "deliberate or reckless inclusion of false or misleading material statements in a warrant application and affidavit * * *." State v. DeMagistris,714 A.2d 567, 574 (R.I.1998).22 In his brief to this Court, Verrecchia asserts that he "made the requisite preliminary showing of the affiant's deliberate and/or reckless falsehoods and omissions of material information" and so was entitled to a Franks hearing.
In its opinion in Franks, the Supreme Court established the following criteria that must be met before a person is entitled to a Franks hearing:
"There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. * * * Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing." Franks, 438 U.S. at 171-72, 98 S.Ct. 2674.
We review rulings denying Franks hearings with deference. DeMagistris, 714 A.2d at 576 ("[W]e review a lower court's determination that the defendant failed to satisfy the Franks standard with deference."); see also Santana, 342 F.3d at 66 ("A district court's determination that the requisite showing for a Franks hearing has not been made is overturned only if clearly erroneous."); United States v. Nelson-Rodriguez,319 F.3d 12, 34 (1st Cir.2003); United States v. Ranney,298 F.3d 74, 77 (1st Cir.2002). Moreover, the party seeking a Franks hearing bears the burden of proof. Chavez-Miranda, 306 F.3d at 979.
Verrecchia asserts that the affidavit mischaracterized the confidential informant (Rossi) as having been "previously reliable" and that, contrary to the statement in the affidavit, Cpl. DelPrete was not currently investigating a "stolen weapons
[ 880 A.2d 100 ]

operation" at the time that he submitted the affidavit to support the search warrant. Verrecchia maintains that Rossi had never before provided any information to law enforcement and that there was no such ongoing stolen weapons investigation. Indeed, he contends that even the state police had doubts about Rossi's credibility. He argues that the firearms purchase was actually an elaborate sting operation that was planned and orchestrated by the state police as a means for Rossi to demonstrate his credibility and that, in attempting to do so, Rossi had directed Verrecchia to participate in the illegal sale.
Even if we agreed that the firearms purchase was an elaborate sting operation to establish Rossi's credibility because he had never previously supplied information to the police, the inexorable reality is that, by the time that Cpl. DelPrete swore to the truth of his affidavit, Verrecchia had already been arrested as a result, in part, of information Rossi provided. Furthermore, although it is possible that a stolen-weapons investigation might not have been in progress for a long while before Verrecchia's arrest, in view of the fact that a criminal information clearinghouse indicated that Verrecchia had delivered stolen firearms to the undercover detective just before his arrest, it is clear that such an investigation was at least in its initial stages at the time that the affidavit was submitted.
Assuming for a moment that Verrecchia's allegations concerning mischaracterizations in the affidavit are true, there nevertheless remains more than sufficient untainted, corroborating evidence to support a finding of probable cause.23
Verrecchia further asserts that Cpl. DelPrete deliberately omitted from his affidavit previously known information concerning Rossi's unreliability and that such omissions, coupled with the affidavit's statement that Rossi had previously been reliable, deliberately misled the issuing magistrate with respect to Rossi's credibility. In particular, Verrecchia argues that the affidavit failed to mention that Rossi: (1) had been incarcerated for two months before negotiating an agreement with the authorities to provide (allegedly stale) information in return for a lighter sentence and other consideration;24 (2) arranged the firearms purchase in an attempt to establish his credibility because he had never previously provided any information to the police; (3) had ordered Verrecchia to participate in the sale; (4) was a perjurer and heroin addict; and, (5) had an extensive violent criminal record.
Although the affidavit did omit some details concerning Rossi's background that may have tended to call his credibility into question,25 those omissions
[ 880 A.2d 101 ]

do not invalidate the affidavit's citation to the significant amount of independently corroborated police work which, by itself, justify the search warrant and survive Fourth Amendment scrutiny.26See generally United States v. Nocella,849 F.2d 33, 41 (1st Cir.1988).27
Consequently, we conclude that Verrecchia was not entitled to a Franks hearing and that the motion justice did not err in denying such a hearing.28
Conclusion
As did the Superior Court in its careful consideration of the motion to suppress upon our remand, we have carefully scrutinized and weighed Verrecchia's various challenges to the search warrant for the barn in Burrillville, which search resulted in the uncovering of numerous illegally possessed weapons. Although, as we have noted, the affidavit submitted in support of the application for the warrant was not flawless, it is completely clear to us that it contained a more than sufficient basis for the magistrate's issuance of the search warrant.
Even without relying upon the principle that "great deference" should be paid by reviewing courts to the magistrate's probable
[ 880 A.2d 102 ]

cause determination29 or the principle that in close cases preference should be given to the validity of the search warrant,30 we would uphold this warrant.
Above all, we are impressed by the plethora of indications in the affidavit as to Verrecchia's involvement in apparent criminal activity (for which he was arrested) in the hours immediately preceding the application for the warrant, which criminal activity partly involved the very building for which the warrant was sought.
The defendant's arguments asserting an entitlement to a Franks hearing are equally devoid of merit. It is clear that, even when the challenged aspects of the affidavit are put to one side, there was ample basis for issuing the warrant. See Franks, 438 U.S. at 171-72, 98 S.Ct. 2674.
For the reasons stated, the judgment of the Superior Court is affirmed. The record shall be remanded to the Superior Court.
APPENDIX
AFFIDAVIT
I Detective Joseph S. DelPrete, a member of the Rhode Island State Police on oath do depose and say:
That I am a member of the Rhode Island State Police and have been continuously employed in this capacity for the 9½ years. I am presently assigned to the Intelligence Unit and engaged in investigations of all types of crimes. Presently, I am currently investigating a stolen weapons operation.
For the past several weeks your affiant has been in contact with a confidential and reliable informant who advised that Albert Verrecchia Dob 11/02/42 is storing a large amount of stolen weapons and was interested in selling them. The informant further advised that Verrecchia stores stolen weapons, pipe bombs, ski masks, gloves and burglary tools in a barn type building located in Harrisville, Rhode Island. The informant further told your affiant that this barn type building is located off Route 98 next to the United States Post Office parking lot in Harrisville, Rhode Island.
On 5-9-96 at approximately 10:07 Cpl. Steven G. O'Donnell a member of the Rhode Island State Police Intelligence Unit called telephone number 944-9590. This is the number of Albert Verrecchia's shop which was given by the confidential source. The informant described this as Albert Verrechia's auto repair business where he works on cars and could found there everyday. . Your affiant checked with NYNEX Security who advised that this is a listed number to Eastern Automotive Auto body of 19 A. Buck Hill Road Johnston, Rhode Island. During the course of several investigations your affiant had learned that this business was owned and operated by Albert Verrecchia. It was also learned through several independent sources throughout this investigation that Albert Verrecchia consistently sells and stores firearms that have been stolen from various burglaries state-wide.
During the telephone conversation over telephone number 944-9590 Cpl. O'Donnell asked for Al. The individual on the telephone advised that he was Al. Cpl. O'Donnell told Al that he was the "Ghost" This was prearranged code name provided to Cpl. O'Donnell from your affiant's confidential informant to be used in Cpl. O'Donnell's undercover capacity. During this telephone conversation Al acknowledged that he was waiting for a telephone call
[ 880 A.2d 103 ]

from the "Ghost" and was receptive to do business. Cpl. O'Donnell then requested to meet Al. Al advised that he would meet Cpl. O'Donnell at 11:00 AM at Dunkin Donuts on Plainfield Pike in Johnston. Al further advised Cpl. O'Donnell that he would be driving a brown tow truck. Cpl. O'Donnell told Al he would be operating a tan and brown Mercury Cougar. Albert Verrecchia was previously contacted by your affiant's informant and provided the name of the "Ghost" as a friend willing to purchase firearms.
A surveillance was coordinated by members of the Rhode Island State Police and Federal Bureau of Investigation of the Dunkin Donuts located on Plainfield Pike Johnston, RI. At approximately 10:58 AM members of the Surveillance team observed a brown tow truck with the words Eastern Automotive and Auto Body on the operator door bearing Rhode Island registration 56491. The operator of this vehicle was identified by members of the surveillance team through a photograph as Albert Verrecchia Dob 11-02-42.
At 11:02 AM Cpl. O'Donnell arrived at the Dunkin Donuts parking lot in an undercover vehicle. Albert Verrecchia and Cpl. O'Donnell were observed speaking in the parking lot and then entering the Dunkin Donuts Restaurant. Albert Verrecchia and Cpl. O'Donnell continued in conversation in the parking lot for approximately five minutes. Al Verrecchia and Cpl. O'Donnell were both observed leaving in there respective vehicles at 11:08 A.M. At 11:12 A.M. they were both observed meeting in front of Albert Verrecchia's business Eastern Automotive and Auto Body located at 19 A Buck Hill Road Johnston, Rhode Island
Your affiant spoke to Cpl. Steven G. O'Donnell who advised that he introduced himself to Albert Verrecchia as being the "Ghost". Verrecchia inquired what type of firearms Cpl. O'Donnell was interested in buying. Cpl. O'Donnell advised Albert Verrecchia that he was looking to purchase a STAR .45 Caliber semi-automatic handgun and an AK-47 which Albert Verrecchia told Cpl. O'Donnell was a rifle. Cpl. O'Donnell asked Verrecchia if the price of the weapons was a "G-note" and Verrecchia advised that the price was $1000.00. Verrecchia told Cpl. O'Donnell about the Star 45, and advised that he had several of these types of firearms. Cpl. O'Donnell said bring a few of these firearms and advised that he would pick one. Verrecchia's response to this was that he has a "Coffin full of firearms" and he cannot be carrying all of these guns around with him. Albert Verrecchia further advised Cpl. O'Donnell that he was holding firearms for other people and did not want to sell a firearm that he was not sanctioned to sell.
During this conversation Cpl. O'Donnell asked Verrecchia if he was interested in moving some marijuana, and he advised that he could use a pound. Cpl. O'Donnell said that he would give it to him on the "arm" (which is no money up front), and give him a week to ten days to pay it back. Cpl. O'Donnell said the marijuana would be $1100 a pound. Verrecchia requested that Cpl. O'Donnell follow him to his business which was several miles down Plainfield Pike.
Shortly thereafter, Cpl. O'Donnell responded to 19 A Buck Hill Road Johnston which is the location of Eastern Automotive and Auto Body. Cpl. O'Donnell advised that they had a brief meeting in front of the business where Cpl. O'Donnell told Verrecchia that he does not go inside buildings because he is leery of law enforcement. Verrecchia advised that he understood and that his business was not a good place to talk because he feared he was being watched by Federal Law Enforcement.
[ 880 A.2d 104 ]

In front of the business Cpl. O'Donnell told Verrecchia that he had to go to New York in the late afternoon; Verrecchia advised that he needed three hours to get the guns from the location that he stores the weapons. A meeting was arranged for 2:30 PM on this date at the Walmart Shopping Plaza on Route 14 in Cranston, Rhode Island. Verrecchia told Cpl. O'Donnell that he would be on time.
At 11:23 AM. members of the Rhode Island State Police/FBI surveillance team observed Albert Verrecchia leave the garage at his business Eastern Automotive and Auto Body then place a card board box into the tow truck. At 11:30 AM the surveillance team observed Verrecchia leave the garage area a second time carrying what appeared to be two duffel bags placing them into his tow truck.
At approximately 11:31 AM Verrecchia was observed by the surveillance team leaving his business Eastern Automotive and Auto Body. At approximately 12:02 PM the surveillance team observed Albert Verrecchia park his tow truck under trees in the United States Post Office parking lot located at the intersection of Main and Chapel Streets in the town of Burrillville, Rhode Island. The surveillance team observed Verrecchia enter a front garage door a wooden barn shaped structure color brown located on the duplex property at 489 and 491 Chapel Street Burrillville, Rhode Island.
Prior May 9th, 1996 your affiant had located this barn shaped structure color brown on the duplex property located at 489 and 491 Chapel Street Burrillville, Rhode Island. Your affiant located this structure based on information supplied by the confidential source who indicated this would be the location where Albert Verrecchia rents and stores stolen guns, ammunition, explosive devices and burglary related instruments.
At approximately 1:01 PM Verrecchia was observed leaving the barn and then take out the same previously described card board box from his tow truck Verrecchia then entered back into the building with the card board box and at approximately 1:04 PM left with the card board box placing it in his tow truck. The surveillance team then observed Verrecchia leave the United States Post Office Parking lot travelling South on Route 98.
On 5-9-96 at approximately 2:30 PM Cpl. O'Donnell met with Albert Verrecchia in the Walmart Shopping Center located on Route 14 in the town of Cranston, Rhode Island. At that location the State Police and FBI arrested Albert Verrecchia after he delivered an AK-47 Assault rifle along with a .45 Caliber handgun to Cpl. Steven G. O'Donnell of the Rhode Island State Police.
A check with Rhode Island Bureau of Criminal Identification revealed that Albert Verrecchia Dob: 11/02/42 has an extensive criminal record with a latest arrest on 8/14/95 by South Kingstown Police for Reckless Driving and on 9/7/95 he was sentenced to one year suspended/probation with court costs.
Based on the information supplied by a confidential and previously reliable informant, the undercover correspondence on this date with Albert Verrecchia, surveillances conducted by members of the Rhode Island State Police and FBI and independent investigation conducted by your affiant; your affiant requests a search and seizure warrant to seize certain handguns, rifles, machine guns, ammunition, explosive devices, and burglary related instruments from a barn style wooden
[ 880 A.2d 105 ]

structure with vertical wooden siding stained brown with two garage doors, located on the duplex property at 489, 491 Chapel Road Burrillville, Rhode Island
Your affiant would also request a search and seizure warrant for certain machine guns rifles, ammunition and explosive devices and materials from the property of Eastern Automotive and Auto Body described as a single story cinder block building color tan with brown roof, brown metal doors, two garage doors located in a fenced area at 19 A Buck Hill Road Johnston, Rhode Island.

/s/ Joseph S. DelPrete
AFFIANT

Joseph S. DelPrete
RI State Police

/s/ [Signature]
Master of the District Court

Footnotes
1. The earlier published opinion of this Court in this case provides the reader with further background information that may be useful as one reads the instant opinion. State v. Verrecchia,766 A.2d 377, 381 (R.I.2001); see also United States v. Verrecchia,196 F.3d 294, 296 (1st Cir.1999) (providing additional factual details).
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2. At defendant's original trial, the motion justice never reached the motion to suppress the evidence that had been obtained by the police pursuant to a warrant because he ruled that Verrecchia had no legitimate expectation of privacy in the structure that was searched. See Verrecchia, 766 A.2d at 383. On appeal, we held that Verrecchia did have an objectively reasonable expectation of privacy in that structure. Id. at 384. Accordingly, we remanded and instructed the Superior Court to hold a hearing on the motion to suppress. Id.
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3. The name of this pawnshop gave rise to the term "Golden Nugget gang," which expression this Court defined as follows in State v. Sivo,809 A.2d 481, 484 n. 1 (R.I.2002):

"The Golden Nugget gang was a consortium of individuals engaged in a wide-ranging criminal enterprise involving burglary, robbery, and other crimes. The group received its name from the Golden Nugget Pawn Shop in Providence, Rhode Island, where members of the group sold their stolen loot."
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4. This structure is referred to in the record in several different ways. It is variously described as a "garage," a "barn-type building" and a "garage/barn." In this opinion, we shall refer to it as a "barn," as the motion justice did in his decision.
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5. Harrisville is a village within the Town of Burrillville. The two names are used interchangeably in the record and in this opinion.
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6. It appears that there was in fact an individual named Charles Kennedy (a/k/a "the Ghost") who was incarcerated at the intake center of the ACI at the same time as Rossi.
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7. It is our understanding that "G note" is a slang term for $1,000.
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8. The surveillance team conducted its operation from an aircraft as well as from ground locations. The members of the aerial surveillance team consisted of Trooper Richard C. Ryan of the Rhode Island State Police and two FBI agents.
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9. Detective Sergeant O'Donnell testified that he ascertained soon after Verrecchia was arrested that these firearms had been stolen.
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10. The warrant in question was actually issued by a judicial officer who bears the title of "Master." The principles of law discussed infra relative to magistrates are fully applicable to the masters and general masters in our judicial system. Since so much search and seizure law refers to "magistrates," we shall (as did the motion justice) use the latter term in referring to the actions taken by the judicial officer who issued the warrant challenged here.
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11. See Franks v. Delaware,438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The holding in that case and the conditions under which a "Franks hearing" is required are described in our decision in State v. DeMagistris,714 A.2d 567, 574-75 (R.I.1998).
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12. The affidavit at issue is appended to this opinion.
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13. At the suppression hearing, the pretrial and trial testimony from this case and the testimony from the trial conducted in the United States District Court for the District of Rhode Island were admitted into evidence by agreement of the parties. (Verrecchia's federal criminal conviction was affirmed by the United States Court of Appeals for the First Circuit. United States v. Verrecchia,196 F.3d 294, 296 (1st Cir.1999)).
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14. We have considered (and we will address in this section of our opinion) Verrecchia's challenge to the warrant based upon his allegations that there were inconsistencies between the affidavit upon which the warrant was predicated and certain testimony during the trial that occurred long after the warrant was issued. We must state, however, that allegations of that sort more properly pertain to Verrecchia's contention that he was entitled to a Franks hearing—a contention that we address later in this opinion. Unless a movant can establish that he/she meets the established criteria for a Franks hearing, the validity of a search warrant should, in strict logic, be determined on the basis of what was before the magistrate at the time that the magistrate issued the warrant.
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15. It should go without saying that a finding of "probable cause" can and often does rest upon evidence that would not by itself be sufficient to prove guilt in a criminal trial. See United States v. Ventresca,380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Draper v. United States,358 U.S. 307, 311-12, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (citing Brinegar v. United States,338 U.S. 160, 172-73, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); see also State v. Rios,702 A.2d 889, 890 (R.I.1997) ("We have often stated that probable cause need not reach the standard of proof beyond a reasonable doubt or even proof that might establish a prima facie case sufficient to be submitted to a jury.").
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16. Several years ago, in Brinegar, 338 U.S. at 175, 69 S.Ct. 1302, the United States Supreme Court made roughly the same point as follows:

"In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."
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17. In Ornelas v. United States,517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the United States Supreme Court clearly explained one of the policy justifications for this deferential standard of review:

"The Fourth Amendment demonstrates a `strong preference for searches conducted pursuant to a warrant,' * * * and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive." Ornelas, 517 U.S. at 699, 116 S.Ct. 1657 (quoting Illinois v. Gates,462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
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18. Specifically, the affidavit stated that Det. Sgt. O'Donnell said that he wished to purchase "a STAR .45 Caliber semi-automatic handgun and an AK-47."
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19. Although it has no direct bearing on the issue of the validity of the search warrant, it is worth noting that Verrecchia's own testimony at his federal trial was similar in large measure to the factual statements made in Cpl. DelPrete's affidavit. Verrecchia testified that, after he negotiated the firearms deal with Det. Sgt. O'Donnell at the Dunkin' Donuts, he drove his tow truck to his place of business and then to a barn next to the United States Post Office in Burrillville to retrieve the weapons. He further testified that he entered the barn carrying a "radiator box" that he had brought with him from his place of business and into which he placed the AK-47. He also admitted that he left the barn with the AK-47, a Starr pistol and various other items and drove to the WalMart Plaza "just over the Johnston/Cranston line." This series of judicial admissions by Verrecchia is striking and noteworthy, even though we choose not to base our decision in this case on the estoppel effect of such judicial admissions.
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20. Indeed, the extent of corroboration in this case is noteworthy. See United States v. Williams,10 F.3d 590, 593 (8th Cir.1993); see also Draper, 358 U.S. at 312-13, 79 S.Ct. 329; State v. King,693 A.2d 658, 662 (R.I.1997); see generally Jones v. United States,362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
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21. We note that any inconsistencies between the affidavit and the subsequent trial testimony of Trooper Ryan were minor in nature.
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22. We have held that a showing of deliberate or reckless material omissions from an affidavit submitted in support of a warrant application would require a Franks hearing if the other requirements for such a hearing are met. See State v. DeMagistris,714 A.2d 567, 575 & n. 3 (R.I.1998). The First Circuit is of the same view. United States v. Nelson-Rodriguez,319 F.3d 12, 34 (1st Cir.2003) ("A material omission in the affidavit may also qualify for a Franks hearing in place of a false direct statement, provided the same requisite showing is made."); see also United States v. Adams,305 F.3d 30, 36 n. 1 (1st Cir.2002); United States v. Rivera-Rosario,300 F.3d 1, 20 (1st Cir.2002).
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23. The motion justice rejected Verrecchia's allegation that the affiant recklessly disregarded the truth and concluded that "the defendant has pointed to only a few legitimate discrepancies, none of which shed significant doubt on the larger number of consistent statements made in the affidavit and at trial."
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24. Verrecchia complains that Rossi's successful negotiation of a favorable agreement with the authorities was not brought to the issuing magistrate's attention. He asserts that the affidavit should have alluded to the agreement between Rossi and the authorities and to the fact that said agreement (1) limited his prison exposure to twelve years; (2) provided for dismissal of armed robbery charges pending against him in the Federal, Maine and Massachusetts courts; (3) provided for relocation expenses for his girlfriend; and (4) guaranteed him the assistance of counsel for his parole violation hearing. It should be noted that some of these factors would tend to disclose Rossi's identity to Verrecchia and his cohorts and thereby defeat the confidential nature of the agreement with Rossi.
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25. Although the substantial and significant corroboration of the confidential informant's averments more than amply justified issuing the warrant in this case, the state police would have been well-advised to have been more careful and accurate about Rossi's background when they drafted the affidavit that they submitted to the magistrate when they applied for a warrant. We remain completely confident that the warrant in this case survives Fourth Amendment scrutiny; but we caution those who apply for search warrants that erring on the side of full disclosure can often serve the cause of upholding the warrant's validity in the event of a later challenge. We recall in this regard Cromwell's instructions to his portrait painter: "[P]aint my picture * * * warts, and everything * * *." John Bartlett, Familiar Quotations 272 (Emily Morison Beck ed., 15th ed. 1980).
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26. Most notable in this regard is the affidavit's careful recitation of how, earlier in the day, Verrecchia had been arrested for his delivery of two lethal firearms to an undercover police officer, which firearms he had apparently obtained from the barn in Burrillville.
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27. Even if there were one or more material omissions from the affidavit at issue, there was more than enough untainted substance in the affidavit to justify the denial of a Franks hearing. See Franks v. Delaware,438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); DeMagistris, 714 A.2d at 575 (indicating that one of the criteria for entitlement to a Franks hearing is that the defendant demonstrate "that the falsehood was material in that there would have been no probable cause to issue the warrant if the magistrate had been honestly informed."); see also United States v. Lucht,18 F.3d 541, 546-47 (8th Cir.1994); United States v. Mittelman,999 F.2d 440, 444 (9th Cir.1993); United States v. Parcels of Land,903 F.2d 36, 47 (1st Cir.1990) ("Even if we corrected all of the claimed material omissions, and disregarded the alleged falsehoods and the challenged statements of confidential informants, there still would exist more than enough evidence to establish probable cause."); United States v. Strini,658 F.2d 593, 597-98 (8th Cir.1981). After taking into account any affirmative falsehoods and/or material omissions, one looks at what remains in the affidavit supporting the warrant application to see if there was nevertheless a sufficient basis for the issuance of the warrant. Franks, 438 U.S. at 156, 98 S.Ct. 2674; see also United States v. Peacock,761 F.2d 1313, 1316 (9th Cir.1985) (upholding a warrant issued in connection with an investigation into the illegal manufacture and distribution of controlled substances, even though the supporting affidavit had omitted the fact that a neighbor of the suspects had told the police that he had not detected chemical odors around the residence to be searched).
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28. Even if we were considering the issue in a de novo manner, we would sustain the motion justice's decision not to hold a Franks hearing in this case. There was such an abundance of entirely unobjectionable data in the affidavit that there was clearly an adequate basis for the magistrate's issuance of the warrant. See DeMagistris, 714 A.2d at 575-76.
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29. Gates, 462 U.S. at 236, 103 S.Ct. 2317.
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30. Peacock, 761 F.2d at 1315; see also Ventresca, 380 U.S. at 109, 85 S.Ct. 741.
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______________________________________________

STATE v. PRATT
641 A.2d 732 (1994)
STATE
v.
Michael D. PRATT.
No. 92-542-C.A.
Supreme Court of Rhode Island.

May 13, 1994.
Aaron Weisman, Annie Goldberg (argued), Dept. of Atty. Gen., Providence, for plaintiff.
Richard M. Casparian, Public Defender, Paula Rosen (argued), Asst. Public Defender, Providence, for defendant.



OPINION
LEDERBERG, Justice.
This case came before the Supreme Court on appeal by Michael D. Pratt (defendant) from a judgment of conviction for possession of over five kilograms of marijuana. The defendant, after a jury trial in Superior Court, was sentenced to twenty years' imprisonment and fined $20,000. The defendant argued on appeal that the trial justice's denial of his motion to suppress all tangible evidence and the denial of the defendant's motion for judgment of acquittal were in error. The defendant also maintained that the trial justice committed reversible error by admitting irrelevant and prejudicial evidence at trial. For the reasons stated herein, we affirm the conviction.
I
FACTS
In June 1988 defendant became the target of a multijurisdictional undercover police investigation which, inter alia, concentrated on illegal drug activity in Newport, Rhode Island. Sergeant Gregory Ursini (Ursini) of the Bristol police department, a member of the Attorney General's task force on narcotics, assumed the alias Greg Manzi and be-friended defendant. Ursini met defendant by enrolling in the Newport Flight School where defendant was an instructor. Ursini and defendant became friends, and when Ursini stated that he was searching for a place
[ 641 A.2d 735 ]

to live, defendant offered Ursini a room in his apartment. Shortly before Ursini moved in, defendant informed Ursini that he intended to install three surveillance cameras at the apartment to keep track of people entering and leaving the apartment. The defendant also told Ursini that he had a loaded mini-14 semiautomatic rifle in his room in the event anyone proceeded past the surveillance camera.
The defendant and Ursini soon became business associates when, in December 1988, defendant offered Ursini an opportunity to realize at least a $1,200 profit within one week on a $6,000 investment. According to Ursini, defendant proposed the purchase of twenty-two pounds of marijuana from a contact in West Palm Beach, Florida, with whom defendant had previously dealt. The defendant informed Ursini that this was a safe investment that had netted defendant profits of $3,000 to $6,000 on several earlier occasions. On December 13, 1988, the roommates traveled to West Palm Beach and met with John Icart (Icart), defendant's contact, who sold Ursini and defendant twenty-nine pounds of commercial marijuana. The defendant, although he attempted to obtain cocaine from Icart, did not make a purchase at that time.
Upon returning to Rhode Island, defendant and Ursini packaged the drugs into one-pound bags and began looking for potential buyers. By May 1989 the roommates had moved the marijuana several times and stored it in various locations, including in the garage of their apartment building located at 305 Corey Lane, Middletown. On or about May 15, 1989, defendant warned Ursini about a prospective drug raid in Middletown. Under the pretense of moving the drugs to a safer location, Ursini put the remaining marijuana, approximately twenty-four pounds, into the trunk of his car and turned it over to the police.
During their eleven-month acquaintance, the pair's business discussions did not solely focus on the December marijuana purchase. On several occasions between December and May, defendant suggested to Ursini the possibility of purchasing cocaine. Although the pair never effectuated a cocaine purchase, defendant made it clear to Ursini that he was conducting other transactions of which Ursini was not a part. As evidence of such transactions, Ursini knew of several meetings between defendant and suspected drug dealers at both the Newport Flight School and the apartment. The defendant never involved Ursini in these meetings; rather, Ursini would always be asked to leave the room. In April 1989, in order to bolster his own credibility, Ursini arranged a mock cocaine transaction between himself and an FBI agent. At Ursini's request, defendant flew Ursini and the cocaine to a prearranged location. Ursini paid defendant $550 for the transportation.
By mid-May 1989, although defendant had not included Ursini in any of the alleged cocaine transactions, the police decided to conclude the investigation. After Ursini obtained wiretaps of defendant discussing various drug transactions, the police obtained an arrest warrant and search warrants for defendant's apartment and the Newport Flight School. The apartment warrant authorized a search for:
"Marijuana, cocaine and drug paraphernalia. Electronic surveillance/monitoring equipment. All personal and business documents and papers and other documents pertaining to Newport Flight School. One mini-14 automatic weapon."
On May 25, 1989, the FBI and the Newport police arrested defendant and executed the search warrants. The defendant was charged with possession of over five kilograms of marijuana, possession of marijuana with intent to deliver, and delivery of marijuana. A judgment of acquittal with regard to the charge of delivery of marijuana was entered on May 28, 1991. A jury subsequently found defendant guilty of possession of over five kilograms of marijuana and possession with intent to deliver. However, prior to sentencing, the trial justice dismissed the charge of possession with intent to deliver. The defendant was sentenced to twenty years' imprisonment and fined $20,000 for possession of over five kilograms of marijuana. In response, defendant filed the instant appeal pursuant to G.L. 1956 (1985 Reenactment)
[ 641 A.2d 736 ]

§ 9-24-32 and raised essentially four issues on appeal.
II
SUPPRESSION OF EVIDENCE
The defendant first argued that the trial justice erred when he denied defendant's motion to suppress all tangible evidence. The defendant alleged, as the first of several grounds to justify suppression of evidence, that the affidavit in support of the apartment search warrant did not establish probable cause to search the apartment for marijuana or drug paraphernalia. The defendant also maintained that the general, exploratory nature of the search violated his constitutional rights under the Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution. Finally, defendant challenged application of the severability doctrine and asserted that the entire search warrant should have been declared invalid and the evidence seized thereunder should have been suppressed.
The Fourth Amendment and article 1, section 6, forbid the issuance of a search warrant without a showing of probable cause. State v. Riccio,551 A.2d 1183, 1185 (R.I. 1988); State v. Ricci,472 A.2d 291, 294 (R.I. 1984). A search warrant must be supported by oath or affirmation and must describe with particularity the place to be searched and the persons or things to be seized. Riccio, 551 A.2d at 1185.
In consideration of defendant's pretrial motion to suppress all tangible evidence, the trial justice evaluated each element contained in the apartment search warrant in determining the constitutionality of the issuance of the search warrant. The trial justice concluded that there had been no probable cause to support the contention that cocaine would have been found on the premises. The trial justice also concluded that the warrant had not been sufficiently particularized with respect to the seizure of defendant's business and personal papers. Thus, the trial justice granted the motion to suppress all evidence seized pursuant to those portions of the warrant. The trial justice, however, denied the motion as to the remaining evidence, and concluded that there had been probable cause to search for marijuana and that the remaining evidence had been properly seized under the plain-view doctrine. We concur with the trial justice's conclusions.

A.PROBABLE CAUSE TO ISSUE SEARCH WARRANT
On appeal defendant alleged that the affidavit in support of the apartment search warrant lacked sufficient facts to establish probable cause that marijuana and drug paraphernalia would be found in his apartment. We disagree.
It is axiomatic that the quantum of proof necessary to establish probable cause is significantly different from the degree needed to establish guilt. Ricci, 472 A.2d at 296. The probable-cause standard requires "only the probability, and not a prima facie showing, of criminal activity." State v. Baldoni,609 A.2d 219, 220 (R.I. 1992); State v. Doukales, 111 R.I. 443, 449, 303 A.2d 769, 773 (1973). This standard, however, does require a showing of more than a mere suspicion that criminal activity is taking place. Marderosian v. United States,337 F.2d 759, 760 (1st Cir.1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1328, 14 L.Ed.2d 268 (1965). The issuing magistrate, in applying the totality-of-the-circumstances test, "must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit" in question, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates,462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). Accord State v. Pacheco,481 A.2d 1009, 1020 (R.I. 1984); Ricci, 472 A.2d at 295. Although the existence of probable cause must be found within the "four corners" of an affidavit submitted in support of the issuance of a warrant, State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975), a judicial officer may draw reasonable inferences from the affidavit in order to reach a determination of probable cause, State v. Kowal,423 A.2d 1380, 1383 (R.I. 1980).
In reviewing the propriety of a search warrant, the reviewing court's duty "`is simply
[ 641 A.2d 737 ]

to ensure that the magistrate had a "substantial basis for * * * conclud[ing]" that probable cause existed.'" Ricci, 472 A.2d at 295. We have stated that an issuing magistrate's determination of probable cause should be afforded great deference by the reviewing court. Baldoni, 609 A.2d at 220.
With these principles in mind, we are of the opinion that there was sufficient probable cause to conclude that marijuana and drug paraphernalia could be found in defendant's apartment. The affidavit submitted in support of the apartment search warrant described defendant's purchase of approximately twenty-nine pounds of marijuana in December 1988 and the subsequent forfeiture of approximately twenty-six pounds by Ursini to the Newport police department.1 The affidavit further expressed the police department's belief that defendant "had given or sold those [missing] three pounds to person or persons unknown." The defendant alleged that this statement demonstrated that defendant was no longer in possession of any of the marijuana originally purchased in December 1988. Thus, defendant argued, the affidavit could not be used to justify a search warrant, State v. Tella, 113 R.I. 303, 306-07, 321 A.2d 87, 89 (1974), and, therefore, the search warrant was invalid.
In his contention, defendant excised the statement from the entire affidavit and argued that it led inescapably to the conclusion that defendant could no longer have been in possession of the marijuana purchased in December 1988. We are of the opinion, however, that when the statement is read in the context of the entire affidavit, the affidavit establishes probable cause to believe that defendant had marijuana in his possession.
We begin with the fact that, in contrast to the rest of the affidavit in which the affiant, with particularity, stated knowledge of defendant's activities (for example, "[defendant] moved [the drugs] into a green `bug style' Volkswagon"), the affiant in this instance espoused merely a "belief" that defendant sold or gave away the drugs. The affidavit is devoid of any facts or other evidence to support the conclusion that defendant had actually sold the marijuana. Given the lack of evidence in support of a possible sale of the marijuana, the issuing magistrate could reasonably conclude that defendant had not sold or given away the drugs but in fact still possessed them in his home.
Furthermore, the affidavit clearly provided ample probable cause to believe that marijuana would have been found in defendant's apartment. The affidavit established that defendant had access to the marijuana. The direct knowledge of Ursini, expressed in the affidavit, supported the conclusion that defendant stored marijuana in his bedroom. We are of the opinion that one could reasonably infer in regard to the location of the missing drugs that defendant still had them in his possession. Thus, we conclude that there was a substantial basis on which the magistrate, reading the four corners of the affidavit and drawing all reasonable inferences therefrom, could find sufficient probable cause to issue the apartment search warrant.

B. PLAIN VIEW
We now turn to defendant's declaration that the evidence not listed in the warrant but nevertheless seized during the search should have been suppressed. According to defendant, the police exceeded their authority when they conducted, in essence, a general search and seized items not described in the warrant. The defendant contended that the trial justice erred when he relied on the plain-view doctrine as justification for seizing the additional items.
[ 641 A.2d 738 ]

It is well settled that general searches and seizures that consist "of a general, exploratory rummaging in a person's belongings" are prohibited under the Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution. Coolidge v. New Hampshire,403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971); Kowal, 423 A.2d at 1382. General searches are precluded by the requirement that no warrant shall issue unless it "particularly describe the place to be searched and the persons or things to be seized." Riccio, 551 A.2d at 1185. Even so, the absence of a particular item from a validly issued warrant does not necessarily foreclose its seizure. Numerous, commonsense exceptions to the specification of items in a warrant have been recognized. Texas v. Brown,460 U.S. 730, 735-37, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 509-10 (1983). Often those exceptions to the warrant requirement are subsumed in the plain-view doctrine.
The plain-view doctrine allows seizure of evidence that is openly on display when an officer, who is lawfully in a position to see the evidence and to have lawful access to it, immediately recognizes that the object is evidence of criminality.2Horton v. California,496 U.S. 128, 136-37, 110 S.Ct. at 2301, 2308, 110 L.Ed.2d 112, 123 (1990). Accord Brown, 460 U.S. at 737, 103 S.Ct. at 1540-41, 75 L.Ed.2d at 510; Coolidge, 403 U.S. at 464-73, 91 S.Ct. at 2037-42, 29 L.Ed.2d at 581-87; State v. Cobb,494 A.2d 1182, 1184-85 (R.I. 1985); State v. Eiseman,461 A.2d 369, 379 (R.I. 1983). The defendant contended that, while conducting a general search, the officers, relying on the plain-view doctrine, seized items — in particular the police scanner, radio guide, and Fortune magazine — that did not constitute evidence of activity whose incriminating nature was immediately apparent.
As a preliminary matter, we reject defendant's contention that the officers' search amounted to a general, exploratory search. We are satisfied that the warrant was sufficiently particularized to survive Fourth Amendment scrutiny, and in our review of the execution of the warrant, we have found no evidence that the officers exercised a general search.
Turning to defendant's assertion that the items could not be seized under the plain-view doctrine because their incriminating nature was not "immediately apparent" to the officers, we begin with a review of the immediately-apparent requirement. In Texas v. Brown, the Supreme Court was critical of the immediately-apparent requirement that defendant has relied upon. The phrase "immediately apparent," in the Court's view, "was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty" is necessary prior to seizing the item. Brown, 460 U.S. at 741, 103 S.Ct. at 1543, 75 L.Ed.2d at 513. The Court, in Brown, delineated that this prong of the plain-view doctrine can be satisfied whenever "`there is probable cause to associate the property [in plain view] with criminal activity.'" Id. at 741-42, 103 S.Ct. at 1543, 75 L.Ed.2d at 513. Accord Cobb, 494 A.2d at 1185. Probable cause, in a plain-view seizure case, "merely requires that the facts available to the officer would `warrant a man of reasonable caution in the belief' * * * that certain items may be * * * useful as evidence of a crime." Brown, 460 U.S. at 742, 103 S.Ct. at 1543, 75 L.Ed.2d at 514.
In the instant case, where the police were lawfully in defendant's apartment by virtue of a lawfully executed search warrant, we are of the opinion that the items that defendant claimed were not incriminating may reasonably be construed as evidence of crime. The officers were aware that defendant was a suspected drug dealer who allegedly used his position at the Newport Flight School to transport drugs. Armed with this premise, an officer of reasonable caution could justifiably conclude that a magazine found on defendant's nightstand, which periodical included an article describing the inside world of the drug trade and the challenges of stopping drug trafficking, would be
[ 641 A.2d 739 ]

useful as evidence of a crime. We are also satisfied that there was probable cause for the officers to associate the police scanner and the radio guide with criminal activity. In light of the accusation that defendant was involved in drug trafficking, it was reasonable for the officers to suspect that these otherwise unincriminating objects were assisting defendant in avoiding police detection while carrying on illicit trades. Thus, the items were properly seized under the plain-view doctrine, and the trial justice did not err in denying defendant's motion to suppress these items.

C. SEVERANCE DOCTRINE
Finally, defendant maintained that in regard to the tangible evidence, the trial justice should have declared the entire search warrant unlawful and should have suppressed all items seized thereunder. Because the invalid portions of the warrant were redacted and the seizure of the remaining evidence was upheld, defendant submitted that the trial justice relied erroneously on State v. Tucker,133 N.H. 204, 575 A.2d 810 (1990).
Although never expressly adopted by this court, at least nine federal circuit courts and several state courts have adopted the severance doctrine.3 The severance doctrine permits a court to redact invalid portions from a warrant and to uphold the seizures made pursuant to the valid portions. United States v. Morris,977 F.2d 677, 682 (1st Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993). With this opinion we expressly adopt the severance doctrine.
The rationale behind the doctrine is that rigid adherence to the exclusionary rule would not always serve a valid purpose. Rather, "the social gains of deterring unconstitutional police conduct by suppressing all evidence seized pursuant to a partially invalid warrant often are outweighed by the social costs occasioned by such an across the board ruling." United States v. George,975 F.2d 72, 79 (2d Cir.1992).
Nonetheless, in order to apply the severance doctrine, the valid unredacted portions of the warrant must be sufficiently specific and particular to survive Fourth Amendment scrutiny. United States v. Spilotro,800 F.2d 959, 967 (9th Cir.1986). Moreover, the valid portions may not comprise "`a relatively insignificant part' of an otherwise invalid search." In re Grand Jury Subpoenas Dated December 10, 1987,926 F.2d 847, 858 (9th Cir.1991). Thus, specific guidelines ensure that the Fourth Amendment guarantees are adequately protected. See George, 975 F.2d at 79.
In the instant case, we conclude that the trial justice correctly applied the doctrine by carving out the invalid portions of the search warrant and suppressing the items seized pursuant to those constitutionally infirm portions of the warrant. We find no merit to defendant's contention that the constitutionally valid portions of the search warrant amounted to an insignificant part of an otherwise invalid warrant. To the contrary, the invalid portions — that is, the authority to search for cocaine and to seize all business and personal records — were the insignificant portions of an otherwise valid warrant. The lawful portions of the warrant authorized a search for marijuana, drug paraphernalia, an automatic weapon, and electronic surveillance/monitoring equipment, all of which
[ 641 A.2d 740 ]

were supported by probable cause sufficient to believe that they would aid in a conviction. See Warden, Maryland Penitentiary v. Hayden,387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782, 792 (1967).
We also reject defendant's contention that the doctrine of severability does not apply to evidence seized that was not specifically described in the warrant. The defendant's misplaced reliance on United States v. Apker,705 F.2d 293 (8th Cir.), rev'd in part on reh'g,724 F.2d 633 (8th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229, and cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984), and Spilotro, 800 F.2d at 968, does not support his assertion that items seized in plain view during a search pursuant to a partially defective warrant must be suppressed. Although Apker, as originally decided by a three-judge panel of the Eighth Circuit, did reject the adoption of a "plain view-severance approach," 705 F.2d at 307, the Eighth Circuit subsequently granted a rehearing en banc to reconsider the issue. United States v. Fitzgerald,724 F.2d 633, 635 (8th Cir.), rev'g in part on reh'g705 F.2d 293 (8th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984). In Fitzgerald, the full court reversed the Apker three-judge panel and found that "because the warrants as redacted were valid, the police possessed authority under the `plain view' doctrine * * * to seize any apparent contraband or evidence of a crime they might inadvertently find while executing the valid portions of the warrant." 724 F.2d at 636.
Neither does the Ninth Circuit's opinion in Spilotro lend support to defendant's position. In that case the court never reached the issue of whether the plain-view doctrine could justify seizure under a redacted warrant because the court found no basis to sever the warrant. 800 F.2d at 967. Thus, because the officers were executing a wholly invalid warrant, they were not lawfully in a place to justify seizure of items in plain view. Id. at 968. Furthermore, subsequent to their opinion in Spilotro, the Ninth Circuit applied the plain-view-severance approach and found that, despite a partially defective warrant, the officers were justified in seizing items under the plain-view doctrine. United States v. Holzman,871 F.2d 1496, 1512-13 (9th Cir.1989).
In fact, our research has revealed that in addition to the Ninth Circuit, various other circuit and state courts have found sufficient bases for allowing the admission of evidence seized from plain view during the execution of a partially defective warrant. See, e.g., United States v. Brown,984 F.2d 1074, 1078 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); George, 975 F.2d at 79-80; Holzman, 871 F.2d at 1512-13; Commonwealth v. Lett,393 Mass. 141, 146-48, 470 N.E.2d 110, 114-15 (1984). Such courts have reasoned that if officers were legally upon the premises in any set of circumstances, including by virtue of a partially invalid warrant, the seizure of articles found in plain view can be upheld. We concur with this reasoning.
The proper inquiry in such situations thus becomes whether the officers came upon the item while "they were in a place where the redacted warrant * * * authorized them to be * * * [and whether] the item seized [was] discovered before the authority of the officers[] to be on the premises has expired." George, 975 F.2d at 80.
In the instant case, the officers had authorization, inter alia, to search for marijuana and drug paraphernalia. The items seized in plain view — including the Fortune magazine, programmable scanner, and radio call guide — were discovered in and around the bedroom, in places where marijuana and/or drug paraphernalia justifiably could be found. At the time these items were seized, the authority of the police to be on the premises had not expired. See id. Accordingly, seizure of these items was proper under the plain-view doctrine during execution of the redacted warrant.

III
RELEVANCY
In addition to contesting the seizure of the police scanner, radio guide, and Fortune magazine, defendant also challenged their admission and the admission of the three-screen
[ 641 A.2d 741 ]

Panasonic video monitor into evidence on relevancy grounds. Additionally, defendant contested the relevancy and prejudicial impact of admitting the semiautomatic weapon and ammunition into evidence.
"Relevant evidence [is] * * * evidence that tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without such evidence." State v. Houde,596 A.2d 330, 333 (R.I. 1991). "All relevant evidence is admissible," Rule 402 of the Rhode Island Rules of Evidence, unless the probative value of such evidence is found to be "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury," Rule 403. The ultimate determination of the relevancy and effect of evidence is within the sound discretion of the trial justice. State v. Neri,593 A.2d 953, 956 (R.I. 1991). Absent a showing of abuse of this discretion, this court will not disturb a trial justice's exercise of discretion. Id.
In the instant case, defendant was charged with possession of a specific amount of marijuana and possession with intent to deliver marijuana. The trial justice found that the semiautomatic weapon, found fully loaded in defendant's bedroom closet, was probative of the location of the marijuana, of the activity of defendant, and as well of his state of mind in feeling more secure and comfortable in bringing marijuana into the apartment. Likewise, the trial court found that the electronic equipment tended to show that defendant felt the need for security in his living quarters in order to bring in a substantial supply of marijuana. With regard to the Fortune magazine that contained an article on bringing drugs into the United States, the court found the article relevant to the charges and dismissed its prejudicial effect as "infinitesimal."
After examining the testimony and the record, we are of the opinion that admitting this evidence could not be deemed an abuse of discretion on the part of the trial justice. Although, as noted, these items, by themselves, appear to be innocuous objects, when viewed in light of the charge of possession of marijuana and possession with intent to deliver, their relevance becomes apparent.
One element of the charge of possession with intent to deliver is defendant's state of mind as evidenced by his intent regarding the marijuana in his possession. We are of the opinion that a loaded semiautomatic weapon, an article on drug trafficking, and electronic surveillance equipment tended to make the existence of an intent to deliver "more * * * probable than it would be without such evidence." Houde, 596 A.2d at 333. The fact that these items were legally owned does not affect their relevancy. Rather, status of ownership is a factor to be considered by the jury in weighing the evidence.
We also agree with the trial justice that the introduction of the semiautomatic weapon into evidence was not overly prejudicial. Unlike the facts in State v. Brash,512 A.2d 1375, 1383 (R.I. 1986), where we found that the relevance and materiality of firearms introduced at trial rested on shaky ground, the weapon in the instant case was highly probative of the charges against defendant. See State v. Alamont,577 A.2d 665, 668 (R.I. 1990) (quoting Ybarra v. Illinois,444 U.S. 85, 106, 100 S.Ct. 338, 350, 62 L.Ed.2d 238, 255 (1979)) ("in the narcotics business, `firearms are as much "tools of the trade" as are most commonly recognized articles of narcotics paraphernalia'"). Furthermore, Brash is distinguishable from the instant case by the fact that the prejudicial impact of the weapons in Brash stemmed in part from "the sheer number and variety of the guns" introduced at trial. 512 A.2d at 1383. In the instant case, however, only one gun and a photograph of the weapon, in the position discovered in defendant's apartment, were introduced. "Unless evidence is of limited or marginal relevance and enormously prejudicial, the trial justice should not act to exclude it." Wells v. Uvex Winter Optical Inc.,635 A.2d 1188, 1193 (R.I. 1994). Given these factors, we hold that the slight prejudicial effect of the weapon was outweighed by the probative value of the item.
IV
EVIDENCE OF "OTHER BAD ACTS"
We now turn to defendant's allegation that the trial justice committed reversible error
[ 641 A.2d 742 ]

by allowing evidence of defendant's alleged cocaine trafficking in violation of Rule 404(b) of the Rhode Island Rules of Evidence.
It is well settled that evidence of past, uncharged criminal behavior of an accused is generally inadmissible in a criminal trial to prove a defendant's propensity to commit the crime charged. State v. Brigham,638 A.2d 1043, 1044-45 (R.I. 1994); State v. Colangelo, 55 R.I. 170, 173, 179 A. 147, 149 (1935). The prejudicial effect of such evidence has been traditionally viewed as outweighing its probative value by acting to predispose jurors to believe a defendant's guilt. State v. Colvin,425 A.2d 508, 511 (R.I. 1981). Such evidence also presents the risk of the accused's being convicted for a crime other than that charged. State v. Jalette, 119 R.I. 614, 624, 382 A.2d 526, 531-32 (1978).
Despite these concerns, numerous exceptions to the exclusionary rule have been recognized and set forth in Rule 404(b). In particular, evidence of other acts may be relevant and admissible if it is "interwoven with" the offense charged, State v. Brown,626 A.2d 228, 233 (R.I. 1993), or if it is offered to prove an accused's "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." Rule 404(b). In order to protect against the concerns enumerated above, the trial justice must carefully weigh the probative value of the evidence against the danger of unfair prejudice when evidence is offered under one of these exceptions. If the probative value is found to outweigh the prejudicial effect, the trial justice must offer "`a specific instruction [to the jury] as to the limited purpose for which the evidence is being introduced.'" State v. Chartier,619 A.2d 1119, 1123 (R.I. 1993).
In the instant case, Ursini wore a "body wire" that recorded defendant discussing possible cocaine transactions. In addition to the introduction of two of these tape recordings, the state offered Ursini's version of untaped cocaine conversations with defendant and testimony regarding a mock cocaine transaction between Ursini and an FBI agent. The state also offered Icart's testimony relating to the cocaine deals he had conducted with defendant prior to the December 1988 marijuana sale. A bottle of inositol, found in the trunk of defendant's car, was also introduced at trial. Detective George R. Hayes testified that inositol is a substance commonly used to "cut" cocaine powder. The defendant maintained that the prejudicial impact of this cocaine evidence, balanced against its probative value, was "undeniably great." According to defendant, the prejudicial effect of this evidence was embodied in the perception that cocaine dealers are more a threat to society than marijuana dealers. Additionally, defendant asserted that the overwhelming amount of cocaine evidence allowed at trial essentially "eclipsed the actual charges against [him]." We disagree.
As the trial justice correctly noted, evidence of alleged cocaine trafficking has the inescapable effect of causing some prejudice to a defendant. But in determining the admissibility of the evidence, the proper inquiry goes beyond the evaluation of any prejudice to the task of weighing the probative value of the evidence against its prejudicial effect. Brown, 626 A.2d at 233. "It is only when the evidence `unfairly' or `unduly' inflames the jury that the trial justice should exclude this evidence." Id. While we agree that evidence of defendant's alleged cocaine involvement may have been prejudicial to defendant, we are of the opinion that the probative value of this evidence outweighed its prejudicial effect.
The defendant in the instant case was charged, inter alia, with possession of marijuana and possession with intent to deliver marijuana. The evidence now complained of portrayed defendant as discussing his need for money, his desire to repay Ursini for the December marijuana purchase, and his proposed means of obtaining the money — through the sale of cocaine. Beginning with his opening statement to the jury and throughout the trial, defendant portrayed himself as an unwitting participant in activities instigated by undercover officers intent on implicating him by any means necessary. At trial, however, defendant refrained from calling his theory entrapment because such a defense automatically puts at issue defendant's predisposition to commit the crime charged. State v. Jones,416 A.2d 676, 679
[ 641 A.2d 743 ]

(R.I. 1980). Nevertheless, at trial defendant argued that the marijuana was purchased and owned by Ursini and thus Ursini, not defendant, was in possession of the contraband. The "cocaine evidence," inter alia, demonstrated defendant's intent to repay Ursini for the marijuana and thus was directly related to defendant's possession of the marijuana. In addition, the evidence established defendant's pattern of purchasing large quantities of illegal drugs from contacts outside the state and transporting the drugs into Rhode Island for resale. Thus the evidence complained of also provided proof of defendant's common scheme or plan to possess and sell drugs. The evidence, therefore, related directly to his plan to traffic marijuana and was highly probative of the charge of possession of marijuana and possession with intent to deliver.
Given the high probative value of this evidence, we are of the opinion that its prejudicial impact was outweighed, and thus the evidence was admissible. The trial justice carefully evaluated the evidence prior to its admission and properly prevented the state from "crossing the line." Additionally, pursuant to our mandate in Jalette, 119 R.I. at 625, 382 A.2d at 532, the trial justice gave proper instructions to the jury on the limited use of the cocaine evidence. Because the trial justice reiterated the cautionary instruction several times during the trial, defendant argued that the repetitions in fact had the effect of calling attention to the evidence. We decline to accept this objection and conclude that the trial justice's instructions were appropriate, given the duration of the trial — over eight days — and the length of the transcript — 1,400 pages. Consequently, the instruction was curative, not prejudicial.

V
JUDGMENT OF ACQUITTAL
In the final issue raised on appeal, defendant challenged the trial justice's denial of his motion for a judgment of acquittal. In addressing this argument, defendant relied on Pennsylvania case law for the proposition that the police officers' conduct amounted to "entrapment as a matter of law." According to defendant, this entrapment occurred when Ursini "ingratiated himself" with defendant and used his friendship with defendant to transport commercial marijuana to Rhode Island from Florida. Such inducement and entrapment, in defendant's view, amounted to outrageous conduct that violated his right to due process. We disagree. See United States v. Matiz,14 F.3d 79, 82 (1st Cir.1994).
We begin with the premise that, in reviewing a denial of a motion for judgment of acquittal, we must view all the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of the witnesses. State v. Caruolo,524 A.2d 575, 581 (R.I. 1987). In so doing, we discover that although Ursini supplied the money to purchase marijuana in Florida, it was defendant who first suggested purchasing drugs. It was also defendant who made the travel arrangements and the initial contact with Icart in Florida. Further, defendant also contracted for the purchase of marijuana, delivered the money to Icart, and, after delivery by Icart, brought Ursini to see the marijuana.
"The outrageousness * * * of a police officer's actions can only be evaluated by taking into account the totality of the relevant circumstances." United States v. Santana,6 F.3d 1, 7 (1st Cir.1993). In reviewing the circumstances of the instant case, we are of the opinion that the police conduct was not "outrageous." It is well settled that the government may use undercover officers to enforce the law. E.g., Jacobson v. United States, ___ U.S. ___, ___, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174, 184 (1992). Indeed, "in these modern times with advanced technology and transportation facilities readily available to criminals, drug conspiracies * * * are extremely difficult to penetrate and therefore enforcement ingenuity must be encouraged and greater government involvement allowed." Matiz, 14 F.3d at 82. We agree with the trial justice that, after assuming the alias and befriending defendant, Ursini did nothing that could reasonably be characterized as "outrageous" conduct.
We also reject the defendant's assertion that Ursini's actions amounted to "entrapment as a matter of law." During trial,
[ 641 A.2d 744 ]

defense counsel refrained from asserting the traditional affirmative defense of entrapment for fear of opening the door to evidence of the defendant's predisposition to commit the crime charged. See State v. DeWolfe, 121 R.I. 676, 684, 402 A.2d 740, 744 (1979). Rather, the defendant sought to have the trial justice recognize "not a factual defense of entrapment, but entrapment, per se * * * [which] has nothing to do with predisposition." We reject the defendant's attempt to create such a new theory of defense. Our holding in Jones, 416 A.2d at 684, makes clear that entrapment, as a matter of law, occurs only "[w]hen the defendant introduces sufficient evidence of inducement to raise the question of entrapment but the state adduces no evidence of predisposition in rebuttal."
Accordingly, for the reasons stated herein, the defendant's appeal is denied and dismissed, the judgment of conviction appealed from is affirmed, and the case is remanded to the Superior Court.
Footnotes
1. Ursini testified that he weighed the marijuana in Florida and determined that the package weighed thirty-one pounds. Upon their return to Rhode Island, however, defendant and Ursini repackaged the marijuana into one-pound bags and discovered that their actual net purchase amounted to approximately twenty-nine pounds. Ursini attributed the two-pound discrepancy to the heavy electrical tape used to package the marijuana in Florida.

Shortly after their return to Rhode Island, Ursini turned over two pounds of marijuana to the Newport police under the pretense of making a sale. This initial forfeiture, coupled with the subsequent forfeiture of twenty-four pounds on May 16, 1989, resulted in the police's being in possession of twenty-six pounds at the time the search warrant was executed.
Back to Reference
2. In Horton v. California,496 U.S. 128, 141, 110 S.Ct. 2301, 2310, 110 L.Ed.2d 112, 126 (1990), the Supreme Court rejected the often-cited requirement that the police officer discover the evidence inadvertently.
Back to Reference
3. See, e.g., United States v. Brown,984 F.2d 1074, 1078 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. George,975 F.2d 72, 79 (2d Cir.1992); United States v. Blakeney,942 F.2d 1001, 1027 (6th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991), and cert. denied, ___ U.S. ___, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Holzman,871 F.2d 1496, 1510 (9th Cir.1989); United States v. Fitzgerald,724 F.2d 633, 636-37 (8th Cir.), rev'g in part on reh'g705 F.2d 293 (1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984); United States v. Riggs,690 F.2d 298, 300 (1st Cir.1982); United States v. Christine,687 F.2d 749, 759-60 (3d Cir.1982); In re Search Warrant Dated July 4, 1977,667 F.2d 117, 130-33 (D.C. Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); United States v. Cook,657 F.2d 730, 734-35 (5th Cir.1981); Aday v. Superior Court of Alameda County,55 Cal.2d 789, 797, 362 P.2d 47, 52, 13 Cal.Rptr. 415, 420 (1961); Commonwealth v. Lett,393 Mass. 141, 144-46, 470 N.E.2d 110, 113 (1984); State v. Warren,226 Neb. 810, 812-13, 415 N.W.2d 152, 154 (1987); State v. Tucker,133 N.H. 204, 209-10, 575 A.2d 810, 814 (1990).
Back to Reference

___________________________________________________

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERSHEL OSCAR ROSENBAUM; C. R.;
J. R.,
Plaintiffs-Appellants,
v.
WASHOE COUNTY; DENNIS BALAAM,
in his official capacity; MICHAEL
HALEY, in his official capacity;
JAMES FORBUS, in his individual
capacity,
Defendants-Appellees.
?
?
No. 10-15637
D.C. No.
3:08-cv-00418-ECR-
RAM
ORDER AND
OPINION
?
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted
May 11, 2011—San Francisco, California
Filed November 30, 2011
Before: M. Margaret McKeown, Ronald M. Gould, and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion
20535
20538
ROSENBAUM v. WASHOE COUNTY
COUNSEL
Robert R. Hager and Treva J. Hearne, Hager & Hearne, Reno,
Nevada, for the appellants.
David Creekman, Herbert Kaplan, Washoe County District
Attorney's Office, Reno, Nevada, for the appellees.
ORDER
The petition for panel rehearing is GRANTED. The opin-
ion in the above-captioned matter filed on August 22, 2011,
and published at 654 F.3d 1001, is WITHDRAWN. The
superseding opinion shall be filed concurrently with this
order.
The parties shall have fourteen (14) days from entry of the
superseding opinion to file petitions for rehearing or petitions
for rehearing en banc in the above-captioned matter.
IT IS SO ORDERED.
ROSENBAUM v. WASHOE COUNTY
20539
OPINION
PER CURIAM:
Hershel Oscar Rosenbaum (“Rosenbaumâ€) and his children
appeal the district court's order granting the defendants'
motion for summary judgment on the grounds of qualified
immunity.
Rosenbaum was arrested as he stood outside a fair selling
promotional tickets that he had received for free from a radio
station. He was wearing a t-shirt with the logo of the station;
his children, ages eight and four, were standing beside him.
He was arrested for abuse, neglect or endangerment of a child,
and obtaining money under false pretenses. Officers walked
his children across the street to the car where their mother was
waiting. On the way, they told the children that what their
father did “was wrong,†that “you know what your father did
was wrong,†and that he was going to jail for what he had
done. Rosenbaum spent eight hours in jail and was released
on bail. He had in fact not violated any statute. There is no
scalping law in Nevada; no other charge applied to his con-
duct. The charges against him were ultimately dropped.
Rosenbaum and his children brought a § 1983 suit against
Washoe County, County Sheriff Dennis Balaam, County Dep-
uty Sheriff Lieutenant James Forbus (“Forbus “), and Under-
sheriff Michael Haley, for damages resulting from the
unlawful arrest. They claimed a violation of two constitu-
tional rights: (1) the right to be free from unlawful arrest
under the Fourth and Fourteenth Amendment, and (2) the sub-
stantive and procedural due process right to family integrity
under the Fourteenth Amendment. They also brought state
claims for libel, assault, battery, negligent and intentional
infliction of emotional distress, false arrest, and false impris-
onment.
The County defendants moved for summary judgment on
the grounds of qualified immunity, and the district court
20540
ROSENBAUM v. WASHOE COUNTY
granted the motion. The district court held that while the
arresting officer, Forbus, did not have probable cause to arrest
Rosenbaum, he was entitled to qualified immunity because a
criminal statute, “collecting for benefit without authority,â€
Nev. Rev. Stat. § 205.415, which was offered by the defen-
dants to justify the arrest, was ambiguous.
Significantly, the statute on which the district court relied
in finding qualified immunity was unknown to Forbus at the
time of the arrest. It has no published authority or legislative
history. While there is a factual dispute about when the
County defendants found this statute, it is clear that it was
found at some point after the arrest and even after Rosenbaum
was released. The Rosenbaums allege that it was the district
attorney who found it after this § 1983 case was brought,
almost two years after the arrest. The County defendants
claim that it was Officer Forbus who found the statute. A
Westlaw search of Nevada law found not a single reference
to this statute other than in this case.
The district court further held that while the officer's com-
ments to the children were offensive, they did not rise to the
level of a constitutional violation.
For the reasons that follow, we reverse the district court's
ruling on qualified immunity for the unlawful arrest and
affirm the district court's ruling on the right to integrity of the
family.
BACKGROUND
Rosenbaum received free promotional tickets for the
Nevada State Fair from the Reno radio station KOZZ. On
August 26, 2006, Rosenbaum stood across the street from the
entrance to the fair with his children and sold the tickets for
the discounted price of $5 per ticket. He was wearing a t-shirt
with the KOZZ logo at the time.
ROSENBAUM v. WASHOE COUNTY
20541
Deputy Sheriff Forbus responded to a complaint by fair
personnel that an individual was attempting to sell free pro-
motional tickets. He spoke with KOZZ, the radio station that
distributed the free tickets and sponsored the event, and was
told that no one had been authorized to sell tickets for a profit.
He then spoke with three witnesses who had bought tickets
from Rosenbaum. He called for back up and approached
Rosenbaum. Rosenbaum first denied and then admitted to
selling the tickets. Forbus placed him under arrest.
Rosenbaum's two children were escorted to their mother,
who was in a parked vehicle a short distance away. Forbus—
and perhaps other officers—told them that what their father
had done “was wrong,†that “you know what your father did
was wrong,†and that their father was going to jail for what
he had done.
Rosenbaum was booked on felony charges for abuse,
neglect, or endangerment of a child and for obtaining money
by false pretenses, as well as on a misdemeanor charge for
obtaining money under false pretenses. He was released on
bail the following day. The Washoe County District Attor-
ney's Office would later charge Rosenbaum only with one
felony count of obtaining money by false pretenses and then
drop the charge.
This lawsuit was filed on August 1, 2008. The Rosen-
baums' complaint asserts nine causes of action: (1) False
Arrest, Unlawful Detention, False Imprisonment and Mali-
cious Prosecution Pursuant to the Fourteenth Amendment and
42 U.S.C. § 1983; (2) Violation of Substantive and Procedural
Due Process Right to Familial Integrity, and of Liberty Inter-
est to Rear Children Without Unreasonable Government
Interference; (3) Libel (based on a August 26, 2006, press
release requesting information about Rosenbaum and the sale
of the tickets); (4) Libel (based on a August 31, 2006 press
release); (5) Assault; (5) Battery; (6) Intentional Infliction of
Emotional Distress; (7) Negligent Infliction of Emotional Dis-
20542
ROSENBAUM v. WASHOE COUNTY
tress; (8) False Arrest; and (9) False Imprisonment. They seek
damages in an amount in excess of $10,000 on each of these
causes of action.
The County defendants moved for summary judgment on
July 10, 2009. The district court granted summary judgment
on the grounds of qualified immunity in an unpublished deci-
sion on February 25, 2010. Rosenbaum v. Washoe County,
No. 08-418, 2010 WL 745451 (D. Nev. Feb. 25, 2010). Hav-
ing dismissed the federal claims, the district court declined to
exercise jurisdiction over the pendent state claims. Id. at *8.
The Rosenbaums appealed to this court on March 23, 2010.

STANDARD OF REVIEW
This court reviews a district court's ruling on summary
judgment on the grounds of qualified immunity de novo.
McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th
Cir. 2009), cert. denied, 131 S. Ct. 79 (2010). Summary judg-
ment will be granted—or affirmed—where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.†Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation
marks and citation omitted); Fed. R. Civ. P. 56. In making
this determination, we will consider all of the facts in the light
most favorable to Rosenbaum. See Scott v. Harris, 550 U.S.
372, 378 (2007).

DISCUSSION
The court applies a two-prong analysis to determine
whether officials are entitled to qualified immunity: (1)
whether the facts alleged show that the officer violated a con-
stitutional right; and (2) if so, whether that right was clearly
established at the time of the event. See Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2080 (2011). These two questions may be
ROSENBAUM v. WASHOE COUNTY
20543
considered in either order. Pearson v. Callahan, 555 U.S.
223, 236 (2009). The linchpin of qualified immunity is the
reasonableness of the official's conduct. Anderson v. Creigh-
ton, 483 U.S. 635, 638-39 (1987) (“[W]hether an official pro-
tected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light
of the legal rules that were clearly established at the time it
was taken.†(emphasis added) (internal quotation marks and
citations omitted)).

In this case, the Rosenbaums allege that the officials vio-
lated two constitutional rights: the right to be free from
unlawful arrest and the substantive due process right to family
integrity. We will consider each in turn, addressing first
whether the right was violated, and then whether the law was
clearly established such that the official would have been on
notice that his conduct was unlawful.

I.
Unlawful Arrest
[1] It is well established that “an arrest without probable
cause violates the Fourth Amendment and gives rise to a
claim for damages under § 1983.†Borunda v. Richmond, 885
F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an
arrest without probable cause, however, may still be entitled
to qualified immunity if he reasonably believed there to have
been probable cause. See Ramirez v. City of Buena Park, 560
F.3d 1012, 1024 (9th Cir. 2009).

In the context of an unlawful arrest, then, the two prongs
of the qualified immunity analysis can be summarized as: (1)
whether there was probable cause for the arrest; and (2)
whether it is reasonably arguable that there was probable
cause for arrest—that is, whether reasonable officers could
disagree as to the legality of the arrest such that the arresting
officer is entitled to qualified immunity. Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir. 2007) (noting that an offi-
20544
ROSENBAUM v. WASHOE COUNTY
cer will not be entitled to qualified immunity “if officers of
reasonable competence would have to agree that the informa-
tion possessed by the officer at the time of arrest did not add
up to probable causeâ€).1

A.
Probable Cause
[2] An officer has probable cause to make a warrantless
arrest when the facts and circumstances within his knowledge
are sufficient for a reasonably prudent person to believe that
the suspect has committed a crime. Crowe v. County of San
Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131
S. Ct. 905, 907 (2011). The analysis involves both facts and
law. The facts are those that were known to the officer at the
time of the arrest. The law is the criminal statute to which
those facts apply.

The district court cited Devenpeck for the proposition that
there will be probable cause so long as the facts known to the
officer give rise to probable cause “for any criminal offense.â€
Rosenbaum, 2010 WL 745451, at *3 (emphasis added) (citing
Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). The dis-
trict court then considered three criminal statutes and found
no probable cause. Rosenbaum, 2010 WL 745451, at *4-5.
We agree with the district court that the facts known to For-
bus did not give rise to probable cause for any offense. When
Forbus arrested Rosenbaum, he knew the following facts:
Forbus had received a complaint by State Fair personnel that
1
To be sure, the application of the qualified immunity doctrine varies
with the nature of the right. Some constitutional rights are stated in rela-
tively specific rules. Some, like the Fourth Amendment's prohibition
against unreasonable searches and seizures, are not. Allowance for reason-
able error is already built into the underlying constitutional standard in the
first instance—before a qualified immunity analysis. As such, as one
scholar described it, qualified immunity is cast in terms of whether there
was “reasonably unreasonable†behavior. See John C. Jeffries, What's
Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 860 (2010).
ROSENBAUM v. WASHOE COUNTY
20545
an individual was attempting to sell free promotional tickets
to the fair. He had spoken with KOZZ, the radio station that
distributed the free tickets and sponsored the event, and was
told that no one had been authorized to sell the tickets for a
profit. Forbus saw Rosenbaum standing with his children,
wearing a t-shirt with the KOZZ logo. Forbus spoke with
three witnesses who confirmed that they had purchased tickets
for $5 each. When he approached and spoke with Rosenbaum,
Rosenbaum first denied but then admitted to having sold tick-
ets.

The County defendants acknowledged that there was no
probable cause for abuse, neglect or endangerment of a child.
They proposed that there was probable cause for two
offenses: “obtaining money by false pretenses†in violation of
Nev. Rev. Stat. § 205.380 (2005) (now codified at Nev. Stat.
§ 205.380 (2011)); and “collecting for benefit without author-
ity†in violation of § 205.415 (2005) (now codified at Nev.
Stat. § 205.415 (2011)). We address each offense in turn.

1.
Obtaining money by false pretenses
[3] Section 205.380, obtaining money by false pretenses,
provides:
A person who knowingly and designedly by any
false pretense obtains from any other person . . .
money . . . with the intent to cheat or defraud the
other person, is a cheat, and, unless otherwise pre-
scribed by law, shall be punished[.]

The elements of this crime are: the intent to defraud, a false
representation, reliance on that representation, and that the
victim is defrauded. Barron v. State, 783 P.2d 444, 449 (Nev.
1989). In this case, however, there was no evidence to suggest
that Rosenbaum intended to defraud his customers or that he
was misrepresenting himself. He was openly selling promo-
tional tickets, that he had received for free, for a price of $5.
20546
ROSENBAUM v. WASHOE COUNTY

His customers received exactly what they paid for; they were
not victims of fraud. This is not a case, for example, where
someone was selling counterfeit or fake tickets. The district
court held, supported by the record, that these facts do not
give rise to probable cause for obtaining money under false
pretenses.

2.
Collecting for benefit without authority
Section 205.415, “collecting for benefit without authority,â€
provides:

A person who sells one or more tickets to any ball,
benefit or entertainment, or asks or receives any sub-
scription or promise thereof, for the benefit or pre-
tended benefit of any person, association or order,
without being authorized thereto by the person, asso-
ciation or order for whose benefit or pretended bene-
fit it is done, shall be punished[.]

The County defendants argue that Rosenbaum appeared to be
holding himself out as a representative of KOZZ because he
was wearing their t-shirt. He appeared, they argue, to be sell-
ing tickets for the benefit of KOZZ. And because he was
unauthorized to do so, he appeared to be violating this statute.
This interpretation assumes that the statute makes it a crime
to sell tickets for the pretended benefit of another.

[4] The district court, however, interpreted the statute dif-
ferently. The district court reasoned—and we agree—that the
purpose of the offense is to protect charities from fraud.
Rosenbaum, 2010 WL 745451, at *5. The district court noted
that there is no published authority, state or federal, that con-
strues the provision, nor is there any legislative history that
clarifies its terms. Id. As such, the district court was obliged
to predict how the Nevada Supreme Court would have inter-
preted the statute. Id. The district court emphasized the provi-
sion's title, “Collecting for benefit without authority,†and
ROSENBAUM v. WASHOE COUNTY
20547
found that a common-sense reading suggests that the provi-
sion makes it a crime to sell tickets to a charity event (ball,
concert, or entertainment) without authorization. Id. The
phrase “for the benefit or pretended benefit of any personâ€
modifies “any ball, benefit or entertainment†instead of modi-
fying the word “tickets.†In other words, it is a crime to sell
tickets without authorization to an event that benefits another
rather than to sell tickets without authorization for the benefit
of another. Id. As such, the facts known to Forbus at the time
of the arrest did not give rise to probable cause for “collecting
for benefit without authority†because the fair was not a char-
ity event. Id.

[5] We agree with the district court and conclude that there
was no probable cause to arrest Rosenbaum, and his constitu-
tional right to be free from unlawful arrest was violated.

B.
Reasonable Belief of Probable Cause
[6] Even if the arrest was made without a warrant and
without probable cause, however, the officer may still be
immune from suit if it was objectively reasonable for him to
believe that he had probable cause. Ramirez, 560 F.3d at
1024. The linchpin of the qualified immunity analysis is the
reasonableness of the officer's conduct in the particular case
at hand. Anderson, 483 U.S. at 638. The law acknowledges
that an otherwise competent officer will sometimes make an
unreasonable decision or make an unreasonable mistake as to
law or fact. In those instances, the officer will appropriately
be liable under § 1983. See Liberal v. Estrada, 632 F.3d 1064,
1078 (9th Cir. 2011) (denying qualified immunity because the
officer's mistake of fact was unreasonable).

Framing the reasonableness question somewhat differently,
the question in determining whether qualified immunity
applies is whether all reasonable officers would agree that
there was no probable cause in this instance. See Ashcroft,
131 S. Ct. at 2083 (holding that an official is not entitled to
20548
ROSENBAUM v. WASHOE COUNTY
qualified immunity where “every reasonable official†would
have understood that he was violating a clearly established
right (emphasis added) (internal quotation marks and citation
omitted)).2

In this case, Forbus does not allege that he made any mis-
take of fact that would have led to probable cause. Nor does
he allege that he misunderstood the law at the time of the
arrest. Rather, the district court granted qualified immunity to
Forbus on the grounds that a later-discovered statute, that
could arguably apply to the facts of this case, is ambiguous.
Rosenbaum, 2010 WL 745451, at *6.

To be sure, the law must be clearly established such that it
would “be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.†Saucier v. Katz, 533
U.S. 194, 202 (2001), overruled on other grounds by Pearson,
555 U.S. 223; see also Ramirez, 560 F.3d at 1024. The pur-
pose of qualified immunity is to ensure that officers are given
fair notice of the law that they are required to uphold. Ander-
son, 483 U.S. at 640.

This is not a case where courts disagree about the contours
of a constitutional right or where officers may be confused
about what is required of them under various circumstances.

As our analysis establishes, the statute is unambiguous, and
2
The Court uses the language “all reasonable officers†or “every reason-
able officer†to explain that it must be clear that the conduct is unlawful;
qualified immunity will attach whenever reasonable officers could dis-
agree about whether the facts in the particular case give rise to probable
cause. The law does not imply, however, that police officers are the ulti-
mate arbiters of constitutional questions. The lawfulness of their conduct
does not turn on whether all, or most, officers think that the law is clearly
established. For example, if the Supreme Court has issued an opinion con-
demning racial profiling, but 90 percent of the police in a given geo-
graphic area think racial profiling is just fine, an officer would not be
entitled to qualified immunity simply because his fellow officers disagree
with a clear Supreme Court ruling.
ROSENBAUM v. WASHOE COUNTY
20549
not susceptible to the reading that the county suggests. There-
fore, no reasonable officer could believe that Rosenbaum's
conduct violated this statute.

[7] Considering the facts in the light most favorable to
Rosenbaum, all reasonably competent officers would have
agreed that he was not committing a crime. There is no scalp-
ing law in Nevada; it is simply not a crime to sell tickets to
a fair—even when the tickets were received for free. His t-
shirt did not suggest fraud, nor were the ticket buyers duped
by the sale.

[8] The district court's grant of summary judgment on the
grounds of qualified immunity for an unlawful arrest is
reversed.

II.
Substantive Due Process Right to Family Integrity
Next, Rosenbaum and his children argue that Forbus vio-
lated their substantive due process right to family integrity
when he handcuffed Rosenbaum in front of his children,
escorted the children to their mother, asked them whether
Rosenbaum had been selling tickets and whether they knew
what he was doing was wrong, and told them that it “was
wrong†and that he was going to jail for it. The question is
whether these facts—taken in the light most favorable to the
Rosenbaums—rise to the level of a constitutional violation.
[9] The substantive due process right to family integrity or
to familial association is well established. A parent has a
“fundamental liberty interest†in companionship with his or
her child. Kelson v. City of Springfield, 767 F.2d 651, 654-55
(9th Cir. 1985). A state may not interfere with this liberty
interest, and indeed the violation of the right to family integ-
rity is subject to remedy under § 1983. Id. To amount to a vio-
lation of substantive due process, however, the harmful
conduct must “shock[ ] the conscience†or “offend the com-
munity's sense of fair play and decency.†Rochin v. Califor-
20550
ROSENBAUM v. WASHOE COUNTY
nia, 342 U.S. 165, 172-73 (1952); see also Pittsley v. Warish,
927 F.2d 3 (1st Cir. 1991) (abrogated on other grounds). For
example, we have held that a plaintiff stated a claim under
§ 1983 for a violation of the right to family integrity where
her mentally disabled son was mistaken for another person,
falsely arrested, caused to be extradited to New York from
California, and imprisoned; the police department misin-
formed her of his whereabouts on several occasions until he
was finally released two years later. Lee v. City of Los Ange-
les, 250 F.3d 668, 685-86 (9th Cir. 2001). In Kelson, we held
that parents had stated a cause of action for a violation of their
right to companionship and society of a child where their
teenage son had committed suicide at school. Kelson, 767
F.2d at 653-55.

[10] The facts of the case before us do not come close to
rising to the level of conduct that “shocks the conscience.â€
Unlike Lee or Kelson, Rosenbaum was not separated from his
children for any extended period of time; rather, the children
were walked across the street to their mother who was waiting
in their car. It is true that Forbus's—and perhaps other
officers'—words to the children were inappropriate and even
offensive. The children's father had not in fact done anything
“wrong†and Forbus likely exacerbated an already traumatic
experience for this four year old and eight year old. And yet
we do not hold that the inappropriate conduct amounts to a
constitutional violation.

We do not imply that verbal abuse—and even verbal abuse
to children in the midst of an arrest—would never rise to the
level of a constitutional violation. Rather, in this instance, the
officers' conduct does not “shock the conscience.â€

[11] Because we conclude that the Rosenbaums' right to
family integrity was not violated, we need not reach the ques-
tion of whether Forbus is entitled to qualified immunity for
the violation of the right to family integrity.
ROSENBAUM v. WASHOE COUNTY
20551

CONCLUSION
For the foregoing reasons, the district court's decision
granting summary judgment to the defendants is reversed on
the unlawful arrest claim and affirmed on the right to family
integrity claim. The case is remanded to the district court for
proceedings consistent with this opinion. Each party shall
bear its own costs.
AFFIRMED in part
REMANDED in part.

By the way, this case is based upon the rule of law ..

He had in fact not violated any" criminal" statute. (now think mmj laws of it's not a crime)

Which translates into no probable cause to believe a crime was committed , which gave rise to sue public officers for 1983 in which "clear established law" was clear.

We agree with the district court and conclude that there
was no probable cause to arrest Rosenbaum, and his constitu-
tional right to be free from unlawful arrest was violated.

An officer has probable cause to make a warrantless
arrest when the facts and circumstances within his knowledge
are sufficient for a reasonably prudent person to believe that
the suspect has committed a crime. Crowe v. County of San
Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131
S. Ct. 905, 907 (2011). The analysis involves both facts and
law. The facts are those that were known to the officer at the
time of the arrest. The law is the criminal statute to which
those facts apply.



The public premises defense and/or criminal trespass defense is the ticket for medical marijuana being legal and not a public offense. i.e. not a crime.

That is your goal is to use the case law showing that medical cannabis is not a crime by using the defenses which are not yet established.. you must establish them through the case law above...

 

[bsemaj]

"Clearly Established Law" you ask ?? In a medical cannabis state with no case law ? HUH ??

- Google Scholar

For all of the foregoing reasons, we affirm the district court's order entering a permanent injunction.

AFFIRMED.

KOZINSKI, Circuit Judge, concurring:

........Those immediately and directly affected by the federal government's policy are the patients, who will be denied information crucial to their well-being, and the State of California, whose policy of exempting certain patients from the sweep of its drug laws will be thwarted. In my view, it is the vindication of these latter interests — those of the patients and of the state — that primarily justifies the district court's highly unusual exercise of discretion in enjoining the federal defendants from even investigating possible violations of the federal criminal laws.


I am sure someplace in a report located in your case is the claim of it being against federal law.. at that point, they sunk themselves.. as they are not federal agents enforcing federal law.. but, are state agents enforcing federal law.. violating this injunction.

Cannabis use in each state is not contraband if you have followed all the requirements , i.e. not a public offense. Now since you have a health care practitioners mandated authorization declaration of free speech communications.. the officer if he/she don't walk away, has just crossed into the 1st amendment violation zone.. crashing their case at bar... read the post before this one about the 1st amendment..

By the way Wingman, did you by chance read the last 3-4post in this thread ?? Convicted in Wa. State with a valid authorization

Notice how I presented the public premises/ criminal trespass defense.. I am sure R.I. has the same legal due process standards.


Let me know if this does not make any sense to you and I will try and explain it better..

 

[bsemaj]

SANDBLOM v. TIMBER TREE SERVICE, INC
STEVEN SANDBLOM and TERRI SANDBLOM
v.
TIMBER TREE SERVICE, INC
PD 06-0705.
Superior Court of Rhode Island, PROVIDENCE, SC.

Filed October 27, 2009.




DECISION
RUBINE, J.
This matter was heard de novo on appeal from the District Court. It was tried to the Court without a jury. Consequently, the following shall constitute the Court's findings of facts and conclusions of law.
Findings of Fact
1) The Plaintiffs are married and jointly own property located at 33 Arlington Street in the City of Pawtucket.
2) The property was purchased by the Sandbloms in June 2004.
3) Sometime in March 2005, Mr. Sandblom contacted the Defendant Corporation, Timber Tree Services, Inc., ("Timber") to provide tree services to five trees located on the Arlington Street property. Mr. Sandblom advised Defendant that he and his wife wanted the removal of one tree, and the trimming of four trees – two in the backyard and two in the front yard one of which was a mature Silver Maple tree.
4) The Defendant provided Plaintiffs with a written estimate of the charges for the work to be performed. That written estimate was introduced as a full trial exhibit. The written estimate did not contain a breakdown of the cost for each of the five trees; rather, it stated that the total charge would be $1400.
5) The Defendant began the work in April 2005.
6) Mr. Sandblom was home on that day and observed initially that the project was proceeding as he expected. However, late in the day, one of Defendant's workers contacted Mr. Sandblom and asked if Mr. Sandblom wanted the Silver Maple tree cut down entirely. Mr. Sandblom said he was surprised at the condition of the Silver Maple.
7) Even before work commenced, total removal of the Silver Maple tree was an option offered by Defendant, through its owner, Mr. Carl S. Hamerle, Sr., due to the fact that the tree appeared to be damaged. The damage was evidenced by a basketball-sized cement plug appearing in the base of the tree, suggesting that there may have been rot in the tree. It was, in fact, rot that Defendant's worker discovered and reported to Mr. Sandblom on April 5, 2005. Mr. Sandblom acknowledged that the cement plug existed when Plaintiffs purchased the property in 2004.
8) The Sandbloms now claim that as a result of the negligent services of Defendant, the large Silver Maple tree in the front yard suffered permanent and irreversible damage, thereby proximately causing a reduction in the value of their property as a whole. Pursuant to G.L. 1956 § 34-20-1, they seek twice the value of the tree and three times the value of the wood. The Defendant has counterclaimed for the outstanding balance due for services rendered to Plaintiffs.
9) Although no photographs were introduced showing the tree's condition prior to the commencement of work in April 2005, Mr. Sandblom testified that before Timber's work, the Silver Maple was "overgrown" with vegetation and needed trimming, but was otherwise healthy. His testimony as to the health of the tree was not credible in light of the observations of rot made by Mr. Hamerle and one of his workers. Furthermore, the placement of a cement plug commonly was considered to be a structural enhancement of a tree over forty years ago, suggesting that the rot may have been present for a considerable period of time.
10) The absence of a photo by Plaintiffs to corroborate Mr. Sandblom's statements about the previous condition of the tree, leads the Court to find credible the testimony of Mr. Hamerle that the Silver Maple may well have been damaged prior to April 2005. Despite Mr. Hamerle's suggestion that perhaps the tree was not worth further substantial investment, Mr. Sandblom instead chose to proceed with the request to trim or "top off" the maple. This decision in part was due to Mr. Hamerle's suggestion that after "topping off" the tree would be healthy and regain a healthy condition, similar to a fully grown Silver Maple observed in a neighbor's yard.
11) Mr. Sandblom's expectation before Defendant's work commenced was that that the Silver Maple would be "topped" to get tree growth away from electrical wires. Mr. Hamerle described the work to be performed as the removal of " sucker growth."
12) Instead, as evidenced by two exhibits introduced by Plaintiffs, Defendant trimmed so much growth from the Silver Maple that it only could be described immediately after the work as two bare trunks, totally denuded of any vegetation. Without having photographic evidence of the tree's condition prior to Defendant's work, the Court cannot with any degree of certainty, determine that the Defendant's work caused the condition of the tree as shown on Plaintiff's Exhibit 3A. Based on Mr. Hamerle's testimony as to the tree's condition before his company worked on it, as well as his testimony concerning the rot discovered on the day of the work, the Court finds that the Silver Maple was not a healthy tree when it was topped.
13) Mr. John P. Campanini, Jr., testified as an expert for Plaintiffs. Based upon his educational background, professional experience, and licensure (Mr. Campanini worked for the Providence Parks Division as City Forester for eleven years; as Chief Park's Planner for sixteen years; and he was a member of several professional organizations), the Court finds Mr. Campanini's testimony as to the quality of Defendant's work on the Silver Maple to be credible and trustworthy. He testified that Defendant's work was contrary to industry standards in that Defendant removed more than twenty per cent of the live wood from the tree. He also testified that Defendant failed to adhere to industry standards by pruning or cutting known nodes of the tree, which he found by observing the "cuts" made to the tree by Defendant.
14) As to the work Defendant performed on other trees in Plaintiffs' yard, some of the work appeared improper in that Defendant failed to remove all of the dead wood on one of the trees. The work on that tree, according to Mr. Campanini appeared "unfinished." On a second tree in the back yard, Defendant did not complete the job of thinning out the crown of the tree, in that many branches on the lower canopy were not removed. This, Mr. Campanini described as "sub-par performance." Mr. Campanini supplied no testimony to quantify the damage caused by Defendant's work. For this reason, Mr. Campanini's causation testimony was weak because he was unable to quantify how much of the tree's current condition was caused by prior rot or prior improper pruning performed by someone other than Defendant.
15) To calculate damage to the Silver Maple, Mr. Campanini testified that he used a formula called the "trunk formula," whereby the calculation of loss starts with the circumference of the trunk near the ground, and continues based on certain objective and subjective factors relative to the tree's location and condition. According to Mr. Campanini, this mode of calculation is approved by the International Society of Arboriculture of which he is a member. The result of the calculation is to determine an "appraised" value of the tree before Defendant's work which he determined to be $5100.
However, for several reasons, some factual and some legal, the Court cannot accept that amount as the damage caused by Defendant. For instance, the formula fails to quantify the condition of rot in the tree as evidenced by a cement plug, and Mr. Hamerle's advice to Plaintiff that perhaps the tree should simply be removed. Also, based on the photographic evidence of the current condition of the tree, the Court cannot find the Silver Maple was "totally lost" as a result of Defendant's work. In fact, the photographic evidence of the tree's current condition is that the Silver Maple seems to have returned to a tree lush with foliage; indeed, even Mr. Campanini testified that the Silver Maple is not dead and does not need to be replaced.
16) Mr. Campanini also testified that damage to the Silver Maple could be cured by four or five subsequent remedial prunings to select branches that may develop good supporting unions and help regain the form and shape of a natural Silver Maple. The cost of such remediation was estimated to be $750.00 per remedial pruning which when multiplied by 4 or 5 comes to the cost of remediation of $3,000 to $3,750. The tree is quite mature, approximately 80 years old, and replacement would be almost impossible. Such a mature tree would not be available from a nursery for transplantation, leaving the only replacement alternative as a young sapling that would take many years to develop into the stature of the Silver Maple prior to Defendant's work.
17) In summation, the Court accepts as credible Mr. Campanini's testimony that Defendant was negligent in failing to properly trim the Silver Maple and other trees in the back yard. Despite Mr. Hamerle's testimony that he used proper industry standards when he pruned the tree, the Court finds Mr. Campanini's testimony more credible, precise and thorough on the issue of proper pruning techniques. His testimony, however, falls short of credible as to whether Defendant's work in April 2005 caused all of the damage to the Silver Maple.
18) Finally, the Court does not find credible Mr. Campanini's testimony as to the value of the damage. First of all, the tree was not a total loss, and appeared to the Court to be reasonably healthy. The only credible testimony Mr. Campanini offered on damage was his testimony on cost of repairs at $3,000 to $3,750.00 for remedial trimmings.
Analysis and Conclusions of Law
The Plaintiffs assert that Defendant's negligence caused permanent and irreversible damage to the Silver Maple and that such negligence proximately caused a reduction in the value of their property. The Defendant denies being negligent and seeks payment for his services as contained in the estimate.
In order to establish a negligence claim against Defendant, Plaintiff must prove by a preponderance of the credible evidence that Defendant was negligent. SeeSantana v. Rainbow Cleaners, 969 A.2d 653, 658 (R.I. 2009) ("To properly set forth a claim for negligence, a plaintiff must establish a legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage.") (Internal quotations omitted). Accordingly, Plaintiffs' must prove that Defendant's negligence caused loss or damage to Plaintiffs' property and demonstrate the value of those damages as determined by the reasonable value of the loss or damage. SeePerrotti v. Gonicberg, 877 A.2d 631, 636 (R.I. 2005) (quoting Andrews v. Penna Charcoal Co., 55 R.I. 215, 222, 179 A. 696, 700 (1935)) (observing that "the burden is upon the plaintiff to prove the damages by a preponderance of the evidence.")
However, while "[a] plaintiff should be compensated for all his damages of which the defendants' negligence was the proximate cause . . . no claim for damages should be allowed to stand where such claim is not supported by the required degree of proof, or is speculative, or imaginary, or is clearly attributable to other causes." Id. Furthermore, "[a]lthough mathematical exactitude is not required, the damages must be based on reasonable and probable estimates." White v. LeClerc, 444 A.2d 847, 850 (R.I. 1982).
The Rhode Island Supreme Court has commented on various measures of damage regarding the loss or damage to a tree. In White v. LeClerc, the Court directed the trial justice "to consider replacement cost as the proper measure of determining damages[,]" 468 A.2d 289, 291 (R.I. 1983) because "the parties had impliedly consented to replacement costs as the proper measure of damages." White v. LeClerc, 444 A.2d at 850. In Williams v. Hathaway, 21 R.I. 566, 45 A. 578 (1900), the Court believed an appropriate measure of damage would be the effect that the lost or damaged tree had on the value of the real estate to which it was attached. In Tortolano v. DiFilippo, 115 R.I. 496, 503, 349 A.2d 48, 52 (1975), the Court stated that "the general rule is that where the damage [to realty] is temporary the cost of repair measure is proper and where the damage is permanent, the diminution in value measure is most appropriate."
Although the Court finds that Plaintiffs proved negligence by the credible testimony of Mr. Campanini, adduced at trial, their evidence on the issues of causation and damages is somewhat shaky. The evidence revealed that the Silver Maple was not healthy when it was pruned by Defendant. Consequently, the Court concludes that Plaintiffs failed to demonstrate by a preponderance of the evidence that the Defendant's negligence was the proximate cause of the damage, or that the Silver Maple was completely destroyed such that replacement would be the proper measure of damages. In fact, actual replacement cost would be very difficult to calculate due to the fact that a similar mature maple would not be available at a nursery for transplantation.
Considering that replacement value would not be appropriate in this case, the Court rejects Mr. Campanini's valuation testimony that used the circumference formula.1 The Court is of the opinion that the best measure of damage in this case probably should be the diminution in the value of the real estate which was associated with this landscaping feature. However, no expert opinion was offered by a qualified expert that would allow the Court to measure damage by that method.
Consequently, the Court concludes that because the evidence demonstrates that the tree has made a considerable recovery since it was pruned, the damage it suffered was temporary and the cost of repair would be the appropriate measure of the damages. The only credible testimony concerning the cost remedial measures was proffered by Mr. Campanini. He credibly testified that the Silver Maple could be restored with four to five remedial prunings at a cost of $750 per pruning. The Court concludes, therefore, that Plaintiffs' should be awarded $3,750 in damages to cover the cost of five remedial prunings. However, the Court declines to award double damages pursuant to § 34-20-1 because Defendant had been given permission to come onto the property and trim the trees.
Section 34-20-1 provides:
Every person who shall cut, destroy, or carry away any tree, timber, wood or underwood whatsoever, lying or growing on the land of any other person, without leave of the owner thereof, shall, for every such trespass, pay the party injured twice the value of any tree so cut, destroyed, or carried away; and for the wood or underwood, thrice the value thereof; to be recovered by civil action. (Emphasis added.) In the instant matter, Defendant performed his services with Mr. Sandblom's permission; indeed, at his express invitation. While the services may not have been to Mr. Sandblom's satisfaction, the Court is of the opinion that the Legislature did not intend double damages for negligent services that were performed at Plaintiffs' request.
As to Defendant's counterclaim for unpaid charges, the Court starts with the estimate provided by Defendant for work on five trees on the Plaintiffs' property for $1400. It appears from the testimony that the work performed on three of the trees (the Silver Maple, and two trees in the back yard) was deficient. As there was no testimony that the work on the remaining two trees was deficient, Defendant should be entitled to payment for the work that was done on those two trees. However, there was no testimony as to the value of the work that was performed on those trees. The estimate demonstrates that different work was performed on different trees such that an award of two-fifths of the original estimate at best would be speculative and at worst would be abuse of discretion. As the Court refuses to go out on a limb on the issue of Defendant's damages, it hereby denies Defendant's counterclaim for failure to prove damages.
Conclusion
For the reasons set forth in this decision, Judgment in the amount of $3,750 shall enter in favor of the Plaintiffs.
Footnotes
1. Indeed, the Court is not fully persuaded that the circumference formula employed by Mr. Campanini would be acceptable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993), and as adopted by our Supreme Court in DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999). The formula proffered by Mr. Campanini does not appear to the Court to result in a fair determination of the actual value of the damage done to this tree, or result in what the Court believes is a fair calculation of the value of the tree if deemed lost.
Back to Reference

___________________________________________________________________

TITLE 11
Criminal Offenses
CHAPTER 11-8
Burglary and Breaking and Entering
SECTION 11-8-2

§ 11-8-2 Unlawful breaking and entering of dwelling house. — (a) Every person who shall break and enter at any time of the day or night any dwelling house or apartment, whether the dwelling house or apartment is occupied or not, or any outbuilding or garage attached to or adjoining any dwelling house, without the consent of the owner or tenant of the dwelling house, apartment, building, or garage, shall be imprisoned for not less than two (2) years and not more than ten (10) years for the first conviction, and for the second and subsequent conviction shall be imprisoned for not less than four (4) years and not more than fifteen (15) years, or fined not more than ten thousand dollars ($10,000), or both.

(b) Every person convicted pursuant to subsection (a) of this section shall be ordered to make restitution to the victim of the offense or to perform up to five hundred (500) hours of public community restitution work, or both, or any combination of them approved by the sentencing judge. The court may not waive the obligation to make restitution and/or public community restitution work. The restitution and/or public community restitution work shall be in addition to any fine or sentence which may be imposed and not in lieu of the fine or sentence.

History of Section.
(G.L. 1923, ch. 397, § 9; P.L. 1928, ch. 1209, § 1; G.L. 1938, ch. 608, § 9; G.L. 1956, § 11-8-2; P.L. 1978, ch. 288, § 1; P.L. 1980, ch. 154, § 1; P.L. 1985, ch. 426, § 1; P.L. 1988, ch. 171, § 1.)

______________________________________________________________

TITLE 21
Food And Drugs
CHAPTER 21-28
Uniform Controlled Substances Act
ARTICLE 21-28-4.01
Offenses and Penalties
SECTION 21-28-4.01.1

§ 21-28-4.01.1 Minimum sentence — Certain quantities of controlled substances. — (a) Except as authorized by this chapter, it shall be unlawful for any person to manufacture, sell, or possess with intent to manufacture, or sell, a controlled substance classified in schedules I or II (excluding marijuana) or to possess or deliver the following enumerated quantities of certain controlled substances:

(1) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a detectable amount of heroin;

(2) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a detectable amount of:

(i) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(ii) Cocaine, its salts, optical and geometric isomers, and salts of isomers;

(iii) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(iv) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in paragraphs (i) — (iii) of this subdivision;

(3) One gram (1 g.) to ten grams (10 gs.) of phencyclidine (PCP) or one hundred (100) to one thousand (1,000) tablets of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(4) One-tenth of a gram (0.1 g.) to one gram (1 g.) of lysergic acid diethylamide (LSD) or one hundred (100) to one thousand (1,000) tablets of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); or

(5) One kilogram (1 kg.) to five (5 kgs.) kilograms of a mixture containing a detectable amount of marijuana.

(b) Any person who violates this section shall be guilty of a crime, and upon conviction, may be imprisoned for a term up to fifty (50) years and fined not more than five hundred thousand dollars ($500,000).

History of Section.
(P.L. 1988, ch. 651, § 1; P.L. 1991, ch. 256, § 1; P.L. 2009, ch. 345, § 1; P.L. 2009, ch. 346, § 1.)

___________________________________________________________

TITLE 21
Food And Drugs
CHAPTER 21-28
Uniform Controlled Substances Act
ARTICLE 21-28-3.01
Regulation of Manufacturing, Distributing, Prescribing, Administering, and Dispensing Controlled Substances
SECTION 21-28-3.30

§ 21-28-3.30 Persons exempt from restrictions on possession of controlled substances. — The provisions of this chapter restricting the possession and having control of controlled substances shall not apply to:

(1) Common carriers or to warehouse operators while engaged in lawfully transporting or storing controlled substances, or to any employee of them acting within the scope of his or her employment;

(2) Public officers or their employees in the performance of their official duties requiring possession or control of controlled substances;

(3) Temporary incidental possession by employees or agents of persons lawfully entitled to possession, or by persons whose possession is for the purpose of aiding public officers in performing their official duties, or emergency medical personnel in the performance of their official duties; or

(4) Persons lawfully in possession or control by reason of a proper order, prescription, license, or registration.

History of Section.
(P.L. 1974, ch. 183, § 2; P.L. 1992, ch. 434, § 1.)

______________________________________

WINGMAN,

YOUR EXEMPT FROM THE CRIMINAL STATUTES OF YOUR STATE CSA !!!!!!!!!!

TELL THEM TO KICK ROCKS !!!!!!!!!!

21-28.6-4
§ 21-28.6-4 Protections for the medical use of marijuana. — (a) A qualifying patient who has in his or her possession a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana; provided, that the qualifying patient possesses an amount of marijuana that does not exceed twelve (12) mature marijuana plants and two and one-half (2.5) ounces of usable marijuana. Said plants shall be stored in an indoor facility.

(b) No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a cardholder.

(c) A primary caregiver, who has in his or her possession, a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marijuana; provided, that the primary caregiver possesses an amount of marijuana which does not exceed twelve (12) mature marijuana plants and two and one-half (2.5) ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department's registration process.

(d) Registered primary caregivers and registered qualifying patients shall be allowed to possess a reasonable amount of unusable marijuana, including up to twelve (12) seedlings, which shall not be counted toward the limits in this section.

(e) There shall exist a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marijuana if the qualifying patient or primary caregiver:

(1) Is in possession of a registry identification card; and

(2) Is in possession of an amount of marijuana that does not exceed the amount permitted under this chapter. Such presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the medical condition.

(f) A primary caregiver may receive reimbursement for costs associated with assisting a registered qualifying patient's medical use of marijuana. Compensation shall not constitute sale of controlled substances.

 

[bsemaj]

Now since no case law exists in your state for the registry program this is called a 1st impressions case in which the court will need guidance from sister states with similar law.

This is the clear, convincing proposition of that law.


Oregon law "mandates" cannabis is property of cardholder

__________________________________________________
May 11, 2009, Argued and Submitted
December 16, 2009, Filed

PRIOR HISTORY: [*1]
Douglas County Circuit Court. 06CR2338FE. William L. Lasswell, Judge.

DISPOSITION: Appeal dismissed.

CORE TERMS: marijuana, cardholder, seized, district attorney, usable, moot, grow, site, seizure, identification, caregiver, prosecute, registry, property interest, possessed, grower, person responsible, law enforcement officers, ounces, pound, law enforcement agency, physical possession, disbursements, indictment, registered, mootness, grams, Oregon Medical Marijuana Act OMMA, marijuana plants, paraphernalia

COUNSEL: Timothy A. Sylwester, Attorney-in-Charge, Capital Cases, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Brian Michaels argued the cause and filed the brief for respondent.

Paul E. Meyer, Douglas County Counsel, filed the brief amicus curiae for Douglas County Sheriff.

JUDGES: Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.

OPINION BY: WOLLHEIM

OPINION

WOLLHEIM, J.

In this criminal action, defendant has been charged with unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana, ORS 475.860 (2005), amended by Ore. Laws 2009, Ch 610, § 1, unlawful possession of marijuana, ORS 475.864, and criminal forfeiture of property, ORS 131.550 to 131.602 (2005), amended by Ore. Laws 2009, Ch 874, § 5. The state appeals a pretrial order that directed the Douglas County Sheriff to "return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act." We dismiss the appeal because it fails to present [*2] any justiciable issue.

The facts are undisputed. Defendant was a designated caregiver and grower for multiple persons who are cardholders under the Oregon Medical Marijuana Act (OMMA), ORS 475.300 to 475.346. The sheriff, acting through his deputies and pursuant to a search warrant, seized a substantial amount of marijuana from defendant's property. Thereafter, defendant was indicted on the charges noted above. The indictment alleged that defendant possessed 150 grams or more of marijuana.

Before trial, defendant moved pursuant to ORS 475.304(5) to have the dried and usable marijuana that had been seized returned to the cardholders for whom defendant was the designated caregiver and grower. 1 At the hearing on the motion, the trial court stated:

"What I want is eight ounces returned to each of the three participants and then later on, if it doesn't come to trial in a timely way they can apply for more if it's still there and * * * they have to stipulate to quality photography of what was removed as a condition of getting it."

The trial court then issued its order on the motion. That order provided:

"Pursuant to ORS 475.304(5), Douglas County Sheriff shall return Eight (8) ounces of usable [*3] packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act, as listed below[.]"

The trial court stayed its order for 20 days, during which time the state filed motions to reconsider the order and, if the motion to reconsider was denied, to extend the stay of the order until an appellate judgment issued. In addition, the sheriff filed a motion to intervene, continue the stay of the order, and reconsider the order. Following a hearing on those motions, the trial court allowed the sheriff to intervene and, again, stayed the order, this time for a period of 15 days. Ultimately, the trial court entered an order denying the motions for reconsideration. In response to the motions to reconsider, defendant moved for leave to amend his original motion to include ORS 475.323(2) as a basis for relief. 2 That motion was never acted on by the trial court, and, therefore, defendant's original motion was never amended. The order to return eight ounces of the seized marijuana to each of the three cardholders was executed by the sheriff.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 ORS 475.304 (2007) was amended by 2009 Ore. Laws, Ch 595, section 966. [*4] None of those amendments are relevant to this case. ORS 475.304(5) provides:

"All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder by a person responsible for a marijuana grow site are the property of the registry identification cardholder and must be provided to the registry identification cardholder upon request."
2 ORS 475.323(2) provides:

"Any property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. No such property interest may be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. Usable marijuana and paraphernalia used to administer marijuana that was seized by any law enforcement office shall be returned immediately upon a determination by the district attorney [*5] in whose county the property was seized, or the district attorney's designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. The determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal."

(Emphasis added.)

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

On appeal, the state and the sheriff argue that the trial court erred when it ordered the sheriff to release some of the marijuana that was seized from defendant. The state asserts that, although the order is not now stayed and the sheriff has complied with the order, the state's appeal is not moot because the sheriff continues to hold the rest of the marijuana that defendant contends should be released. Regarding the merits of its appeal, the state contends that the order was not authorized by either ORS 475.323(2) or ORS 133.643. 3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 ORS 133.643 provides:

"A motion for the return or restoration of things seized shall be based on the ground that the movant has a valid claim to rightful possession thereof, because:

"(1) [*6] The things had been stolen or otherwise converted, and the movant is the owner or rightful possessor;

"(2) The things seized were not in fact subject to seizure under ORS 131.550 to 131.600 or 133.525 to 133.703;

"(3) The movant, by license or otherwise, is lawfully entitled to possess things otherwise subject to seizure under ORS 133.525 to 133.703;

"(4) Although the things seized were subject to seizure under ORS 133.525 to 133.703, the movant is or will be entitled to their return or restoration upon the court's determination that they are no longer needed for evidentiary purposes; or

"(5) The parties in the case have stipulated that the things seized may be returned to the movant."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

At oral argument, the state again disclosed that "the sheriff in fact did comply with that [order] by turning over eight ounces to each" of the three patients. The state also conceded that an order by this court reversing the trial court would not grant relief with respect to the released marijuana. Specifically, the state's attorney acknowledged:

"[T]he reality is that we can't get that marijuana back that has been released to the cardholders. And so, if this court were to issue an order, it's not like the [*7] sheriff can go out and collect the marijuana * * *."

Lastly, according to the state at oral argument, in the time since this case has been on appeal, no further requests for disbursements of the marijuana held by the sheriff have been made by the cardholders nor have any further disbursements been released by the sheriff.

As an initial matter, we pause to address the basis of our jurisdiction over the sheriff and the state's appeal. Previously, we determined by order that we had jurisdiction over the state's appeal because

"a motion under ORS 475.323(2) is a special statutory proceeding and [] the conclusive disposition of a motion under that statute is appealable under ORS 19.205(5). The order being appealed is an order conclusively disposing of a motion under ORS 475.323(2) and, as such, is appealable."

We note, however, that the order from which the appeals are taken is an order pursuant to ORS 475.304(5) and not an order pursuant to ORS 475.323(2). Defendant's original motion was a motion based solely on ORS 475.304(5). In addition, the order itself provides that it is based on ORS 475.304(5). The application of ORS 475.323(2) was not raised by any party until a later hearing on the [*8] state's motion to reconsider the order--and, at that time, the party raising the applicability of ORS 475.323(2) was the state. As already noted, the trial court ultimately denied the motion to reconsider. In doing so, the trial court made no rulings, comments, or statements regarding the applicability of ORS 475.323(2). Moreover, although defendant moved for leave to amend his original motion to include ORS 475.323(2) as a basis for relief, that leave was never granted and the original motion was never amended. Thus, the order from which the state appeals is an order deciding a motion made solely under ORS 475.304(5).

We need not, however, reexamine the basis for our jurisdiction to determine whether an order based on a motion under ORS 475.304(5) is an appealable special statutory proceeding pursuant to ORS 19.205(5), because we now hold that this appeal is not justiciable because the proceedings are moot or are otherwise not ripe for review.

As we have noted before, " this court has an independent obligation to determine whether a case is 'justiciable.'" Cyrus v. Board of County Commissioners, 226 Ore. App. 1, 5, 202 P.3d 274 (2009) (citing Oregon Medical Association v. Rawls, 281 Ore. 293, 296, 574 P.2d 1103 (1978)). [*9] Mootness and ripeness are part of that inquiry.

We outlined the relevant precepts regarding mootness in State v. Panduro, 224 Ore. App. 180, 182-83, 197 P.3d 1111 (2008):

"The question whether a case is moot is 'part of a larger two-part inquiry into whether a case is justiciable.' * * * The first step is to determine whether 'a case presents a controversy between parties with adverse interests,' and the second step is to determine whether 'the court's decision will have a practical effect on or concerning the rights of the parties.'"

(Citations omitted.) The defendant in Panduro sought dismissal of an interlocutory appeal in his criminal prosecution because he had been deported and it was uncertain whether he would ever return to the United States or be brought to trial. Id. at 182. We noted that

"the relief that the state seeks--admission of its evidence against defendant--is real and concrete, not abstract or hypothetical and will, as a matter of law, alter the state's rights and defendant's obligations. The possibility exists that defendant may not return to the United States, but to base our determination of mootness on that possibility would be speculative."

Id. at 183.

In contrast, [*10] the Oregon Supreme Court in Brumnett v. PSRB, 315 Ore. 402, 404, 407, 848 P.2d 1194 (1993), held that the petitioner's case was moot where he had challenged his confinement by the Psychiatric Security Review Board (PSRB) and the PSRB had released him unconditionally while review was pending. The petitioner argued that his case was not moot, because he was still subject to a statutory obligation to pay all or part of the costs of his care. Id. at 404. The state, however, had not assessed, attempted to assess, or started any proceeding to assess any amount against the petitioner. Id. at 406. The court held:

"The mere possibility that the state might seek such an order at some future date is not sufficient to make dismissal inappropriate. The state has not said that it intends to seek reimbursement from petitioner. Rather, one representative of the state has asserted only that it might do so some time in the future. The moving party has carried its burden to establish that the case is moot."

Id. at 407 (emphasis in original).

Here, in light of the state's concession at oral argument that it cannot retrieve the released marijuana, any determination about the lawfulness of the trial court's [*11] order would have no practical effect on the parties. The state's requested relief in this appeal is to "vacate the Order For Return and remand this case with directions for the trial court to deny defendant's motion for release of the marijuana to the cardholders." Yet, the state has conceded that an order by this court would not provide the state with relief as to the already released marijuana. Given the concession by the state at oral argument--that "the reality is that we can't get that marijuana back that has been released to the cardholders"--there is a near certainty, and not just a mere possibility, that the released marijuana could not be retrieved. Thus, the circumstances before us are not similar to those of Panduro--where only a possibility existed that the relief granted would have no practical effect on the parties--and a determination of mootness based on the state's concession is not speculative. Thus, we hold that any controversy about the released marijuana is moot. 4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 Because the case is moot, we do not consider the sheriff's separate argument that federal law preempts the OMMA.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The dissent states that this case is not moot because there remains the pending criminal [*12] prosecution against defendant. The dissent notes that the state was entitled to offer into evidence against defendant the marijuana that the trial court ordered released. In addition, the dissent states that the case is not moot because the amount of marijuana defendant possessed remains an issue. 5 Ore. App. , (Edmonds, P. J., dissenting) (slip op at 1-2). The indictment in this case alleged that defendant manufactured, delivered, or possessed 150 or more grams of marijuana. The trial court's order required the sheriff to return three eight-ounce packages of "usable packaged marijuana," for a total of 1.5 pounds. The record is not clear regarding how many pounds of marijuana were seized from defendant, but the record does indicate that the state still retained a lot of marijuana. We take judicial notice that eight ounces is approximately 227 grams. The trial court ordered the sheriff to release more than 678 grams of marijuana. That amount of marijuana is sufficient to prove that defendant possessed, manufactured, or delivered 150 or more grams of marijuana as alleged in the indictment.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
5 While the state did not have to accept defendant's stipulation as to the quantity of [*13] marijuana released and while acknowledging that it is the state's prerogative to determine how to prove the allegation in the indictment that defendant manufactured, delivered, or possessed 150 or more grams of marijuana, the state never has argued that it would be unable to prove the allegations in the indictment because the trial court ordered the release of eight-ounce packages to three individuals.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The state's theory at oral argument as to why this case is not moot rested not on the written order entered by the trial court, but on an oral comment the trial court made at the original motion hearing. As noted above, the trial court had stated:

"What I want is eight ounces returned to each of the three participants and then later on, if it doesn't come to trial in a timely way they can apply for more if it's still there and * * * they have to stipulate to quality photography of what was removed as a condition of getting it."

Based on that comment, the state contended at oral argument:

"The theory that we had that this case is not moot is the fact that * * * the sheriff still has some [marijuana] and that based on this order at some time in the future the claimants can, or the cardholders [*14] can, ask for additional disbursements of the marijuana that is being held by the sheriff."

In addressing that contention by the state, we first pause to recognize that the trial court's oral comment pertaining to future applications for disbursements was not incorporated into the written order from which the state appeals. And, just as importantly, the state has indicated that the cardholders have not yet made such applications. Therefore, we conclude that, as in Brumnett--where the mere possibility that the state could seek reimbursement from the defendant failed to save the case from being moot--the mere possibility here that the cardholders might apply for additional disbursements of marijuana at some future date is insufficient to make dismissal on mootness grounds inappropriate.

Finally, we reach the inquiry of ripeness. In McIntire v. Forbes, 322 Ore. 426, 434, 909 P.2d 846 (1996) (quoting Brown v. Oregon State Bar, 293 Ore. 446, 449, 648 P.2d 1289 (1982)), the court stated, "For a claim to be justiciable, ' the controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.'" As noted above, the cardholders here have not [*15] yet indicated that they intend to make any applications for future disbursements of the marijuana. Any dispute over the marijuana still being held by the sheriff would therefore be based on future events of a hypothetical nature. As such, the issue that the state raises as to the marijuana that is still in the sheriff's possession simply is not ripe at this time.

Appeal dismissed.

CONCUR BY: SERCOMBE

CONCUR

SERCOMBE, J., concurring.

I join in the opinion and agree that the case is not justiciable in light of the state's concession that the marijuana distributed to the cardholders cannot be retrieved. I write separately to counter the dissent's analysis of the merits of the appeal. The question of statutory construction presented by the parties is whether "the person from whom the marijuana * * * was seized" described in the text of ORS 475.323(2)--i.e., "the person" to whom the marijuana must be returned--refers only to the person who had physical possession of the marijuana at the time of seizure or includes third persons, such as cardholders, who were not in actual possession of the marijuana but who may have a limited property interest in it. If the merits of this case were reached, I would hold that [*16] "the person" described in text of ORS 475.323(2) refers only to the person who had physical possession of the marijuana at the time of seizure. Accordingly, I would reverse the trial court's order on the grounds that it lacked the authority to order the return of marijuana to the cardholders, irrespective of whether the district attorney made a determination not to prosecute them.

The dissent reasons that ORS 475.304(5) and ORS 475.309(1)(b) confer on cardholders possessory and ownership interests in the medical marijuana at a grow site and that, when read together with ORS 475.323(2), those statutes "evidence the legislature's intent that a cardholder is among the 'persons' to whom seized medical marijuana could be returned under the authority granted by the statute." Ore. App. at , (Edmonds, P. J., dissenting) (slip op at 8-9). The property interest created under ORS 475.304(5), however, is not referenced in the part of ORS 475.323(2) at issue.

ORS 475.304(5) provides:

"All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder by a person responsible for a marijuana grow site are the property of the [*17] registry identification cardholder and must be provided to the registry identification cardholder upon request."

ORS 475.304(5) is part of a statute that establishes the marijuana grow site registration system and rules. Properly framed in that context, ORS 475.304(5) establishes, as between a cardholder and a person responsible for a grow site, that the cardholder is the owner of the medical marijuana. The statute plainly provides that the marijuana in production at a grow site "must be provided to the registry identification cardholder" by the "person responsible for a marijuana grow site." By its terms, ORS 475.304(5) clarifies who owns the marijuana in order to grant the cardholder the right to obtain the marijuana from the grower on request. Because that statutory provision bears exclusively on the relationship between cardholder and grower, it has limited value in evaluating the obligation of a law enforcement officer to return seized marijuana under ORS 475.323(2).

ORS 475.309(1)(b) is even less material to the analysis. ORS 475.309(1) provides:

"Except as provided in ORS 475.316, 475.320 and 475.342, a person engaged in or assisting in the medical use of marijuana is excepted [*18] from the criminal laws of the state for possession, delivery or production of marijuana, aiding and abetting another in the possession, delivery or production of marijuana or any other criminal offense in which possession, delivery or production of marijuana is an element if the following conditions have been satisfied:

"(a) The person holds a registry identification card issued pursuant to this section, has applied for a registry identification card pursuant to subsection (9) of this section, is the designated primary caregiver of the cardholder or applicant, or is the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under ORS 475.304; and

"(b) The person who has a debilitating medical condition, the person's primary caregiver and the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under ORS 475.304 are collectively in possession of, delivering or producing marijuana for medical use in amounts allowed under ORS 475.320."

ORS 475.309(1)(b) is but one condition that must be met in order for a person to be excepted from the criminal laws of this state that pertain to [*19] marijuana offenses. In essence, that subsection requires the person who has a debilitating medical condition, the person's primary caregiver, and the person responsible for a marijuana grow site to be collectively in possession of, delivering, or producing medical marijuana in order to qualify for immunity from criminal prosecution. That subsection does not affirmatively confer on a cardholder a possessory interest in the marijuana as the dissent suggests. See Ore. App. at (Edmonds, P. J., dissenting) (slip op at 8).

Because I do not find the text of either ORS 475.304(5) or ORS 475.309(1)(b) to be helpful in the statutory construction of ORS 475.323(2), I would begin and end the analysis of ORS 475.323(2) with that provision's plain text. ORS 475.323(2) provides:

"Any property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. No such [*20] property interest may be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. Usable marijuana and paraphernalia used to administer marijuana that was seized by any law enforcement office shall be returned immediately upon a determination by the district attorney in whose county the property was seized, or the district attorney's designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. The determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal."

(Emphasis added.)

First, it is worth noting that the highlighted text does not explicitly refer to whom the marijuana shall be returned--the verb "returned" is not followed by an object. But the plain meaning of "return" includes "to pass back to an earlier possessor" and "to bring, send, or put (a person or thing) back to or in a former position." Webster's Third New Int'l Dictionary 1941 (unabridged ed 2002). The marijuana, in this sense, can only be "returned" to a person [*21] who formerly had physical possession of the plants. When marijuana is seized from a grower, as here, the cardholders never had physical possession of the usable marijuana, and the plants cannot be "returned" to them.

Second, the only other indication in the statutory text as to the identity of the intended recipient of the returned marijuana lies in the statutory condition that the marijuana shall be returned on a determination by the district attorney that "the person from whom the marijuana * * * was seized" is entitled to the protections of the Oregon Medical Marijuana Act (OMMA). On its face, the statute allows a return of seized marijuana if the person from whom the marijuana is seized is in compliance with the OMMA, as shown by district attorney action on any charges brought ("for example, by a decision not to prosecute, the dismissal of charges or acquittal, ORS 475.323(2)"). I would therefore infer from that condition that the legislature intended the marijuana be returned to "the person from whom [it] * * * was seized." See id.

The legislature, in enacting ORS 475.323(2), chose to use the words "the person from whom the marijuana * * * was seized," rather than the words "a [*22] person" or "any person." By using the definitive article "the," rather than an indefinite article, the legislature has indicated its intent that the obligation of a law enforcement officer to return seized marijuana extends only to one person. Put another way, the text of the statute suggests that marijuana is seized only from one person, the particular person who had physical possession of the marijuana at the time of seizure and not any one of a number of persons who might have separate legal interests in the marijuana. Here, the particular person who had physical possession of the marijuana at the time of seizure was defendant.

Finally, the construction of ORS 475.323(2) advanced by the dissent is incomplete. The dissent does not analyze whether the statute requires that the district attorney decide if all persons with an interest in the seized marijuana are entitled to the protections of the OMMA in order to return the seized property. If "the person from whom the marijuana * * * was seized" means any number of persons, as construed by the dissent, see Ore. App. at (Edmonds, P. J., dissenting) (slip of at 8-9), then how would a district attorney determine the existence of [*23] an entitlement "to the protections contained in ORS 475.300 to 475.346" when that determination differed for each person? If the marijuana was seized both from a grower who grew more crop than allowed under the OMMA and from a cardholder who operated consistently with the law, then one person from whom the marijuana was seized, the cardholder, would be "entitled to the protections contained in [the OMMA]," but another person from whom the marijuana was seized, the grower, would not be so entitled. The dissent assumes that the marijuana can be returned to any person with a property interest in the marijuana who complies with the law, even though the district attorney can also make a determination in that instance that a "person from whom the marijuana * * * was seized is [not] entitled to the protections contained in [the OMMA]." In my view, if "the person" means many persons, the statute should be construed to require the district attorney to make the entitlement determinations as to all persons with an interest in the marijuana.

Therefore, I would conclude that the trial court's authority to order the return of the seized marijuana was limited only to ordering the return of the marijuana [*24] to defendant, if the district attorney had determined that defendant was entitled to the protections of the OMMA. Because the court had no authority under ORS 475.323(2) to order the return of the marijuana to the cardholders, I would hold that it erred in doing so.

For the reasons expressed above, if I were to reach the merits of this case, I would concur in the result reached by the dissent, but not in its reasoning.

DISSENT BY: EDMONDS

DISSENT

EDMONDS, P. J., dissenting.

I disagree with the majority's ruling that the state's appeal is moot because the order to release some of the seized marijuana to the cardholders has been executed and the state concedes that it could not retrieve any of that marijuana from the cardholders, even if it is successful on appeal. The majority's reasoning effectively denies the state a statutory right to appeal because it obeyed the trial court's order. I would also reverse the trial court's order releasing the marijuana to the cardholders in this case for the reasons more fully explained below.

"[A] case becomes moot when, because of a change of circumstances before review, a judicial decision would resolve a merely abstract question rather than an actual and substantial [*25] controversy." State v. Lavitsky, 158 Ore. App. 660, 663, 976 P.2d 82 (1999). This appeal involves an actual and substantial controversy in a pending criminal prosecution against defendant that has yet to be tried. The order on appeal releases part of the evidence that the state was entitled to offer into evidence in an effort to prove that defendant was in possession of more marijuana than that permitted under the Oregon Medical Marijuana Act (OMMA) as charged in the indictment against defendant. I submit that a pretrial order of the kind in this case does not become moot for purposes of appeal merely because the sheriff did what he was ordered to do. Otherwise, law enforcement agencies would be required to disobey trial court orders in these kinds of cases in order to preserve their right to appeal.

The right of the state to appeal the trial court's order is a statutory right, as are the rights of cardholders to possess medical marijuana under the OMMA. But under the majority's reasoning, the state's right to appeal is frustrated and rendered meaningless. It is inconceivable that the legislature, having provided for the right of the state to appeal pretrial orders, could also have [*26] intended that an appeal could be mooted by a court-ordered return of seized medical marijuana before the appeal could be adjudicated. At a minimum, there is an actual and live controversy regarding how the legislature intended the statutory rights of the state and cardholders to be harmonized.

Moreover, an actual and substantial controversy continues to exist in this case because of the continuing viability of the court's order. An issue on appeal becomes abstract when, because of circumstances, it no longer has any relationship to any remaining issue in the case. In this case, the quantity of marijuana that defendant possessed has ongoing significance in light of defendant's status as a medical marijuana grower and caregiver and the state's claim that he was in possession of amounts of marijuana that exceeded his legal authorization. The majority disagrees. In its view, as a justification for declaring the issue moot, it posits that the amount of marijuana held by the sheriff "is sufficient to prove that defendant possessed, manufactured, or delivered 150 or more grams of marijuana as alleged in the indictment." Ore. App. at (Wollheim, J., majority) (slip op at 8). Respectfully, [*27] the majority has no factual basis on which to make its assertion. Indeed, the majority concedes that "[t]he record is not clear regarding how many pounds of marijuana were seized from defendant * * *." Ore. App. at (Wollheim, J., majority) (slip op at 8). Moreover, the implication of the majority's surmise is that the judicial branch of government can dictate to the executive branch of government the amount of evidence that is sufficient for the state to successfully prosecute a defendant when a trial has yet to occur. Again, respectfully, that kind of overreaching, even if not a violation of the separation of powers doctrine, interferes with the province of the state to carry out its exclusive, constitutionally mandated authority to prosecute criminal conduct. It is up to the prosecution, not the courts, to decide how much evidence is needed to prosecute a defendant.

Moreover, the emphasis on the amount of evidence retained by the prosecution as a rationale for declaring the state's appeal moot tends to beg the question of whether there remains a substantial and live controversy. I am aware of no precedent from either appellate court in this state that has determined mootness [*28] based on the loss of evidence due to obedience to a court order. The fact that the physical evidence cannot be retrieved from the cardholders does not render the question abstract or hypothetical because the proper focus for determining mootness is on the lawfulness of the trial court's order, an order that remains in effect in a pending case in the trial court. Presumably, the trial court will not reverse its own ruling and will continue to follow it throughout the pendency of the case. As the state pointed out in oral argument, nothing in the trial court's ruling prevents defendant from relying on the earlier order and successfully requesting that additional disbursements of the seized marijuana be made to the cardholders. As importantly, the trial court's ruling establishes a precedent--not only for this case but for other similar cases within the judicial district within which the trial court sits. Under the court's ruling, each and every time a seizure of medical marijuana is made by law enforcement officers within the court's judicial district, the ruling establishes the precedent that at least some of the marijuana, upon request by a defendant, must be released to cardholders [*29] before trial occurs. In that light, the state's concern that the trial court's ruling infringes on the ability of the state to prosecute is a valid concern and creates a live controversy between the parties and any similarly situated parties. For all of the above reasons, I disagree with the majority that this appeal is moot.

As to the merits of the state's appeal, I would reason as follows. In this criminal action charging defendant with the unlawful manufacture of marijuana, ORS 475.856, the unlawful delivery of marijuana, ORS 475.860, and unlawful possession of marijuana, ORS 475.864, in 2006, the state appeals a pretrial order entered by the trial court that directed the sheriff to "return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act." 1 On appeal, the state argues that the trial court lacked the statutory authority to enter the orders.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 Previously, this court had determined by order of the Chief Judge that it has jurisdiction over the state's appeal under ORS 19.205(5).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Defendant is a designated caregiver and grower for multiple persons who are [*30] cardholders under the OMMA. A substantial amount of marijuana was seized from defendant's property after Douglas County deputies executed a search warrant. 2 That evidence led to the above charges against defendant. Before trial, defendant moved to have some or all of the seized marijuana released to the duly licensed cardholders for whom defendant is the designated grower and caregiver. The motion recites that defendant was the lawful caregiver for a number of registered cardholders, that the owners of the marijuana were the patients for whom defendant grew marijuana, and that there were approximately three-and-one-half pounds of dried usable marijuana seized from defendant's residence. The motion concludes, "This Motion seeks to have the dried usable marijuana returned to the patients." At the hearing on the motion, three registered cardholders that had designated defendant as their grower and caregiver testified to their need for the marijuana. 3 Although the state and the Douglas County Sherriff opposed the motion, the trial court granted it to the extent recited above.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 No party presented evidence of the particular amount of usable marijuana seized by the sheriff. Defense counsel [*31] represented to the trial court that there was "about a pound and half to two pounds." Later, counsel conceded that "upwards of thirty" plants were seized, and "lots of bags of leaves." On the other hand, the prosecutor told the court that

"[t]here is actually a huge amount of usable marijuana in this case. I know what counsel is talking about. Counsel is talking about the marijuana bud. * * * I do not recall exactly how many pounds but, under the statute of usable marijuana, leaves are included in that. * * * But so I think in terms of statutory definitions, there is a much larger amount of usable marijuana than just one, two, or three pounds."

3 The cardholders testified both to their debilitating medical conditions that led to them being cardholders and their difficulty in legally obtaining medical marijuana from other sources.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

On appeal, the state argues that, under ORS 475.323(5), seized marijuana can be returned to cardholders only if the cardholder is the person from whom the marijuana was seized. Alternatively, the state contends that the cardholders did not request the return of the marijuana, nor did the Douglas County District Attorney make a determination that the cardholders [*32] were entitled to the return of the marijuana seized as required by ORS 475.323(2). Accordingly, in the state's view, the court had no authority under the OMMA to order its return to them.

Defendant responds that ORS 475.304(5) confers a property interest in the marijuana to the cardholders, and, accordingly, the marijuana was seized from the cardholders, as well as from defendant. Because the marijuana was seized from the cardholders and the district attorney has made no effort on the record before us to prosecute the cardholders, defendant concludes that the marijuana must be returned to the cardholders pursuant to ORS 475.323(2). 4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 Defendant also argues that some of the issues raised by the state on appeal were not preserved in the trial court as required by ORAP 5.45. Our review of the record persuades me that the trial court and defendant had an adequate opportunity to address all of the issues raised by the state on appeal.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Defendant's motion for the return of the marijuana is based on ORS 475.304(5), which provides,

"All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder by a person responsible for a [*33] marijuana grow site are the property of the registry identification cardholder and must be provided to the registry identification cardholder upon request."

Additionally, ORS 475.323(2) provides,

"Any property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. No such property interest may be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. Usable marijuana and paraphernalia used to administer marijuana that was seized by any law enforcement office shall be returned immediately upon a determination by the district attorney in whose county the property was seized, or the district attorney's designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. [*34] The determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal."

As framed, the parties' arguments present a question of statutory interpretation, and our initial task is to discern the legislature's intent in that regard. Under State v. Gaines, 346 Ore. 160, 171-72, 175, 206 P.3d 1042 (2009), the legislature's intent is ascertained by an examination of the text and context of ORS 475.323(2) and ORS 475.304(5) and the legislative history underlying the OMMA, if offered or helpful. 5 ORS 475.304(5) and ORS 475.323(2) operate in concert with the other statutes in the OMMA, including ORS 475.309(1)(b), which provides,

"The person who has a debilitating medical condition, the person's primary caregiver and the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under ORS 475.304 are collectively in possession of, delivering or producing marijuana for medical use in amounts allowed under ORS 475.320."

ORS 475.304(5) provides that the usable marijuana, plants, seedlings, and seeds at a registered grow site are the property of the cardholder. ORS 475.309(1)(b) confers possessory [*35] interests or constructive possession rights to marijuana at a grow site to cardholders and primary caregivers, even when those persons are not in actual possession of the medical marijuana. ORS 475.323(2) refers to the seizure of "[a]ny property interest possessed, owned or used in connection with the medical use of marijuana" from the persons who are entitled to the protections contained in ORS 475.300 to 475.346.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
5 ORS 475.304(5) was enacted in 2005 as part of Oregon Laws 2005, chapter 822, and neither party has cited any legislative history that has been helpful to our analysis.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In light of the above statutes, I turn back to the state's argument that ORS 475.323(2) authorizes only the return of marijuana to defendant because he was the only person from whom it was seized. The breadth of the language in ORS 475.323(2) regarding "any property interest" in connection with the medical use of marijuana is determinative of the legislature's intent regarding the issue framed by the state's argument. Under ORS 475.304(5) and ORS 475.309(1)(b), the ownership and possessory interests held by cardholders in medical marijuana at a registered grow site are also protected under the OMMA. Those interests [*36] were invaded by the officers when they seized the marijuana from the grow site. 6 Because ORS 475.304(5) and ORS 475.309(1)(b) confer possessory and ownership interests in the marijuana to cardholders, those statutes, when read together with ORS 475.323(2), evidence the legislature's intent that a cardholder is among the "persons" to whom seized medical marijuana could be returned under the authority granted by the statute. In other words, I would hold, contrary to the state's argument, that even though the marijuana was not seized from the physical possession of the cardholders, ORS 475.323(2) authorizes the release of medical marijuana to cardholders if the other conditions of the statute are satisfied.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
6 Generally, a "seizure" under ORS 475.323(2) occurs when there is a significant interference with a person's possessory or ownership interest in property. State v. Juarez-Godinez, 326 Ore. 1, 6, 942 P.2d 772 (1997) (defining a "seizure" for purposes of Article I, section 9, of the Oregon Constitution). Because the word "seizure" has a defined legal meaning, presumably, the legislature was referring to that definition when it used the word "seized" in ORS 475.323(2).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The remaining issue [*37] under ORS 475.323(2) is whether the district attorney or his designee has made a determination that the person from whom the marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. According to the statute, "[t]he determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal." In the trial court, the district attorney opposed defendant's motion on the ground that it needed the seized marijuana as evidence to prosecute defendant. My review of the record fails to disclose any finding by the trial court that the district attorney made the determination required by ORS 475.323(2). Because that finding is a statutory predicate to the return of the marijuana under ORS 475.323(2), and the trial court failed to make such a finding, I would reverse the court's order. 7

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
7 The authority under ORS 475.323(2) to return medical marijuana that has been seized has a statutory corollary in ORS 133.643(4), which provides that things subject to seizure may be returned to a movant "upon the court's determination that they are no longer needed for evidentiary purposes." Both ORS 475.323(2) and ORS 133.643(4) are intended [*38] to vest district attorneys with the authority to preserve seized evidence for purposes of trial and until the evidence is no longer needed.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Accordingly, I dissent.


______________________________________________

Here is State of California with the same legal theory but, with a twist of sorts from the city kicking and scratching the whole way... heck they even motion the SCOTUS for review.. and they turned them down.. i.e. give the guy his medicine back idiots !!

CITY OF GARDEN GROVE v. SUPERIOR COURT
68 Cal.Rptr.3d 656 (2007)
157 Cal.App.4th 355
The CITY OF GARDEN GROVE, Petitioner,
v.
The SUPERIOR COURT of Orange County, Respondent;
Felix Kha, Real Party in Interest.
No. G036250.
Court of Appeal of California, Fourth District, Division Three.

November 28, 2007.
Woodruff, Spradlin & Smart, John R. Shaw, Magdalena Lona-Wiant and Douglas C. Holland, Orange, for Petitioner.
No appearance by Respondent.
Joseph D. Elford, for Real Party in Interest.
Jones & Mayer, Martin J. Mayer and Krista MacNevin Jee, Fullerton, for the California State Sheriffs' Association, the California Police Chiefs' Association, and the California Peace Officers' Association; the California District Attorneys Association; the City of Bakersfield, the City of Burbank, the City of Costa Mesa, the City of Dixon, the City of Exeter, the City of Huntington Beach, the City of La Habra, the City of Newport Beach, the City of Ontario, the City of Placentia, the City of Redding, the City of Santa Clara, the City of Tulare, the City of Visalia, the City of Whittier and the City of Yreka, as Amici Curiae in support of Petitioner.
James Humes, Chief Assistant Attorney General, Stacy Boulware Eurie, Assistant Attorney General, Christopher E. Krueger and Teri L. Block, Deputy Attorneys General, for Attorney General Bill Lockyer as Amicus Curiae in support of Respondent and Real Party in Interest.




[ 68 Cal.Rptr.3d 657 ]

OPINION
BEDSWORTH, Acting P.J.
We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed. This request is terra incognita, as will be most of the many confusing aspects of the current tension between California marijuana laws and those of the federal government. Our conclusions are therefore more a matter of analytical accouchement than precedential accretion. But we are convinced by the Attorney General's argument that governmental subdivisions of the state are bound by the state's laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less. Accordingly, we deny the City's petition.
During a traffic stop, Garden Grove police seized about a third of an ounce of marijuana from real party in interest Felix Kha. However, because Kha had a doctor's approval to use marijuana for medical reasons, the prosecutor dismissed the drug charge he was facing. The trial court then granted Kha's motion for return of property and ordered the Garden Grove Police Department to give him back his marijuana.
[ 68 Cal.Rptr.3d 659 ]

Petitioner, the City of Garden Grove, seeks a writ of mandate compelling the trial court to reverse its order. It does not contest the dismissal of the underlying drug charge, nor does it frontally challenge California's medical marijuana laws. Rather, it contends Kha is not entitled to the return of his marijuana because that drug is generally prohibited under federal law. It asks us to make the marijuana's confiscation paramount.
FACTS
This case was resolved without the presentation of any formal evidence, and none of the proceedings were transcribed. Accordingly, the facts and procedural history are derived from the exhibits and declarations submitted in connection with the writ petition.
On June 10, 2005, Garden Grove police officers stopped Kha for failing to yield at a red light. Kha consented to a search of his car, and the officers seized a cloth bag from his front passenger seat. Inside the bag there was a smoking pipe and a plastic container labeled "Medical Cannabis." The officers opened the container and found 8.1 grams, or less than a third of an ounce, of marijuana.
Kha said he purchased the marijuana from "a lab in Long Beach" and used the drug because he suffers from severe pain. He also said he had a doctor's referral to use marijuana and gave the officers a piece of paper that "looked [to them] like a referral." Nonetheless, the officers seized the marijuana and cited Kha for unlawfully possessing less than one ounce of the drug while driving. (Veh.Code, § 23222, subd. (b).) They also cited him for running the red light. (Veh.Code, § 21453, subd. (a).)
TRIAL COURT PROCEEDINGS
Kha pleaded guilty to the traffic violation, but he contested the drug charge. During a pretrial conference, he presented the court with a "Physician's Statement" from Dr. Philip A. Denney. Dated June 1, 2005, the statement authorizes Kha to use cannabis as medicine for an undisclosed "serious medical condition." It also contains Kha's acknowledgment that "cannabis remains illegal under federal law." After calling Dr. Denney's office to verify the information contained in the statement, the prosecutor dismissed the drug charge for lack of evidence. The prosecutor, however, opposed Kha's request to have the marijuana returned to him.
The trial court set a hearing on that matter for the following day, at which time Kha filed a formal petition for the return of his property, i.e., the marijuana. According to the prosecutor, the court "explained to the parties that the [drug] charge had been dismissed, the marijuana was, therefore, not illegally possessed, and that in the absence of any authority saying [the court] may not return the property, the property must be returned." The trial court therefore ordered the Garden Grove Police Department to return the marijuana to Kha.
CONTENTIONS
The City of Garden Grove (the City) petitions for a writ of mandate and/or prohibition directing the trial court to vacate its order and enter a new one denying Kha's motion for return of property. The City sees itself "caught in the middle of a conflict between state and federal law"—a position with which we can certainly sympathize—on the issue of medical marijuana and does not want to be perceived as facilitating a breach of federal law by returning Kha's marijuana to him. Because marijuana possession is generally prohibited under federal law, the City contends the trial court's order is legally flawed and
[ 68 Cal.Rptr.3d 660 ]

constitutes an abuse of discretion. The City also maintains that to the extent state law authorizes or mandates the return of Kha's marijuana, it is preempted by federal law.
We invited and received an informal response from Kha. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) He claimed he is legally entitled to the return of his marijuana under state law and as a matter of due process. He also argued that federal law is not controlling in this proceeding and that the Tenth Amendment to the United States Constitution effectively prohibits federal interference with California's medical marijuana laws.
In its informal reply, the City argued for the first time that although the drug charge against Kha was dismissed, he is not entitled to the protections of California's medical marijuana laws. The City also reiterated its position that consistent with federal drug policy, Kha's marijuana must be destroyed.
On the heels of the parties' informal briefing, the Attorney General of California sought leave to file an amicus curiae brief. Indeed, the Attorney General claimed the City should have served him with its petition because it was challenging the very constitutionality of California's medical marijuana laws. (See Cal. Rules of Court, rule 8.29(c)(1).)
The City responded with a clarification of its position on the preemption issue. It represented it is not seeking to have the state's medical marijuana laws declared unconstitutional on preemption grounds. Instead, it is simply arguing those laws are preempted to the extent they require the return of federal contraband. In other words, for purposes of this proceeding, the City is not contesting the right of qualified patients to use medical marijuana pursuant to state law; it just does not want to be in the position of having to return marijuana to such a patient once it has been lawfully seized by a member of its police force.
We ordered Kha to show cause why mandate should not issue and granted the Attorney General's request to file an amicus curiae brief. Siding with the trial court, the Attorney General contends: (1) The City lacks standing to challenge the court's order; (2) Kha's possession of marijuana was legal under state law; (3) state law favors the return of lawfully possessed marijuana; (4) federal law does not preclude the return of Kha's marijuana; and (5) under the Tenth Amendment, state courts cannot be compelled to implement federal drug laws. Kha's return to the City's petition echoes these points. His principal argument is that federal law does not override his right under state law and due process to the return of his property.
In its reply brief and in its answer to the Attorney General's amicus brief, the City reiterates its original arguments and continues to question Kha's right to possess marijuana under state law. The City also contends it has standing to challenge the trial court's order because it has a special interest in keeping marijuana off the streets and its police officers may be criminally liable if they return Kha's marijuana to him. The City further argues that while the Tenth Amendment prevents the federal government from ordering the City to take affirmative action to carry out federal law, its police force has the right to enforce federal law on its own accord by seizing and destroying Kha's marijuana.
Finally, we have received an amid curiae brief on behalf of the California sheriffs', police chiefs', and peace officers' associations.1 Contrary to the Attorney
[ 68 Cal.Rptr.3d 661 ]

General's position, these local law enforcement associations urge us to overturn the trial court's ruling. They insist ordering the return of Kha's marijuana is not only legally improper, it would undermine police morale and effectiveness and send the wrong message to local law enforcement officers who are involved in the interdiction of illegal drugs.
STANDING
As a procedural matter, the parties and amici dispute whether the City has standing to challenge the trial court's order. We find that while the City may not have standing in the traditional sense of the term, public policy considerations dictate that we afford the City standing in order to resolve the important and widespread issue presented in this case.
The issue of standing may be raised at any time during mandamus proceedings. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438, 261 Cal.Rptr. 574, 777 P.2d 610.) As a general rule, [t]o have standing to seek a writ of mandate, a party must be beneficially interested (Code Civ. Proc. § 1086), i.e., have some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. [Citation.] This standard ... is equivalent to the federal injury in fact test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. [Citation.] (Associated Builders Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361-362, 87 Cal.Rptr.2d 654, 981 P.2d 499.)
To fully understand the City's interest in this proceeding, it is helpful to examine the role its police department has with respect to seized property. That role, as explained in Gershenhorn. v. Superior Court (1964) 227 Cal.App.2d 361, 38 Cal.Rptr. 576, is primarily one of custodian for the court. In upholding a defendant's pretrial right to seek the return of property seized without a warrant, the Gershenhorn court stated, "[E]ven as to property not yet offered or received in evidence we think that judicial control still exists. We are not now concerned with a private seizure, by a private individual, for some purpose of his own. We deal with property seized by a public officer, acting under the color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it. He must respond, as does any custodian, to the orders of the court for which he acted." (Id. at p. 366, 38 Cal.Rptr. 576; see also Pen.Code, § 1536 [property taken on a warrant must be retained by the officer subject to court order]; In re Seizure of Approx. 28 Grams of Marijuana (N.D.Cal.2003) 278 F.Supp.2d 1097, 1105 [the seizing officer is effectively an "agent of the court" with respect to the subject property]; People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713, 107 Cal.Rptr.2d 323, 23 P.3d 563 [officers who seize property "do so on behalf of the court"]; People v. Superior
[ 68 Cal.Rptr.3d 662 ]

Court (hoar) (1972) 28 Cal.App.3d 600, 610, 104 Cal.Rptr. 876 [resolution of criminal proceedings "did not confer on the seizing officer any right to retain the property independent of and beyond that derived from the search warrant"].)
The rules are no different where, as here, the seizure involves a controlled substance and the case is dismissed prior to trial. In that situation, the police may not destroy or otherwise dispose of the seized drugs without prior judicial approval. (See Health & Saf.Code, § 11473.5, subd. (a).)2 And if "the court determines the defendant was in lawful possession of the drugs, then they may not be destroyed at all. (Ibid.) It is up to the court to decide whether destruction is appropriate in a given case; the police role is limited. (Ibid.; People v. Backus (1979) 23 Cal.3d 360, 384-385, 152 Cal.Rptr. 710, 590 P.2d 837; People v. West (1990) 224 Cal.App.3d 1337,1344-1345, 274 Cal.Rptr. 569.)3
In light of these considerations, we are hard pressed to see how the City has a special interest in this proceeding. Its police department does have actual custody of the subject marijuana, and the trial court's order requires the department to take certain action with respect to that property, i.e., relinquish it to its owner. So, at least in terms of physical possession, it cannot be gainsaid that the department occupies a unique role with respect to the marijuana. But its duties insofar as looking after the property and ensuring its safe transfer are plainly ministerial. No special discretion, judgment or skill is called for that would suggest the City has a special interest in the property. Like the public at large, the City certainly has a general interest in ensuring that controlled substances are only returned to individuals who have a lawful right to possess them. But beyond that, its interest appears tangential. (See Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1233-1234, 94 Cal.Rptr.2d 740 [to have standing in mandamus proceeding, the petitioners interest must be substantial, not indirect or attenuated].)
In seeking to cobble together a standing argument, the City claims the legalization of medical marijuana has contributed to a marked increase in violent crime in Garden Grove and other cities throughout the state, thereby impacting the City's citizenry and its police force. To support this claim, the City relies on a document entitled, Riverside County District Attorneys Office White Paper, Medical Marijuana: History and Current Complications. That document, however, does not say anything about the City of Garden Grove. And the City does not cite any authority in support of its request for us to take judicial notice of the document. Finding no basis upon which to grant the request, we deny it. (See Evid.Code, § 450 et seq.) Suffice it to say, there is nothing in the record of this particular case to indicate a link between medical marijuana—in Riverside or anywhere else—and violent crime in Garden Grove. (See generally Gonzales v. Raich (2005) 545 U.S. 1, 63, 125 S.Ct. 2195, 162 L.Ed.2d 1 (dis. opn. of Thomas, J.) [many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. (Italics added.)).]
[ 68 Cal.Rptr.3d 663 ]

The City also worries about the possibility it may be viewed as aiding and abetting a violation of federal law if its officers return Kha's marijuana to him. To be liable as an aider and abettor, a defendant must not only know of the unlawful purpose of the perpetrator, he must also have the specific intent to commit, encourage or facilitate the commission of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561, 199 Cal.Rptr. 60, 674 P.2d 1318.) Stated differently, the defendant must associate himself with the venture and participate in it as in something that he wishes to bring about and seek by his actions to make it succeed. (Central Bank v. First Interstate Bank (1994) 511 U.S. 164, 190, 114 S.Ct. 1439, 128 L.Ed.2d 119.) Even though Kha would be in violation of federal law by possessing marijuana, it is rather obvious the City has no intention to facilitate such a breach. Its challenge to the superior courts order is clear proof of that, and in future cases the existence of case law compelling it will resolve this issue.
We note that, in an analogous case, the court in Conant v. Walters (9th Cir.2002) 309 F.3d 629 upheld an injunction prohibiting the federal government from enforcing a policy that threatened to punish doctors for recommending medical marijuana to their patients. The government attempted to justify the policy on the basis such recommendations, although necessary to invoke the protections of California's medical marijuana law, could lead to violations of the federal drug laws. Indeed, it argued doctors providing a recommendation for the use of marijuana could be seen as aiding and abetting, or conspiring in, the violation of such laws. But the Conant court ruled a doctors anticipation of a patients possible violation of federal law does not translate into aiding and abetting, or conspiracy.... Holding doctors responsible for whatever conduct the doctor could anticipate a patient might engage in after leaving the doctors office is simply beyond the scope of either conspiracy or aiding and abetting. (Id. at pp. 635-636.)
Likewise here, holding the City or individual officers responsible for any violations of federal law that might ensue from the return of Kha's marijuana would appear to be beyond the scope of either conspiracy or aiding and abetting. No one would accuse the City of willfully encouraging the violation of federal law, were it merely to comply with the trial courts order. The requisite intent to transgress the law is so clearly absent here that the argument is no more than a straw man.
Moreover, in light of the federal immunity statute, it seems rather unlikely that any officer involved in carrying out the trial courts order would be subject to liability for handling Kha's marijuana. 21 U.S.C. § 885(d) provides, Except as provided in sections 2234 and 2235 [respecting illegal procurement and execution of search warrants], no civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized Federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State, territory, political subdivision thereof, ... who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.
The statute confers immunity on all state and federal law enforcement officers engaged in the enforcement of the [federal Controlled Substances] Act or of any state or municipal law relating to controlled substances[.] (State v. Kama (2002) 178 Or.App. 561, 564, 39 P.3d 866.) Thus, it did not matter in Kama that the Portland police might be seen as violating federal law by returning marijuana to an individual who was entitled to use the drug under
[ 68 Cal.Rptr.3d 664 ]

Oregon's medical marijuana law. Because 21 U.S.C. § 885(d) shields police officers from federal liability, the court determined the Portland police had to return the marijuana to the defendant in that case. (State v. Kama, supra, 178 Or.App. at pp. 564-565, 39 P.3d 866.)
The City correctly notes the Oregon law at issue in Kama, unlike California's medical marijuana laws, expressly requires the return of a defendants cannabis if he is deemed to be a lawful user. (See State v. Kama, supra, 178 Or.App. at p. 564, 39 P.3d 866.) However, the applicability of 21 U.S.C. § 885(d) does not hinge on such a requirement; the statute makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties. (State v. Kama, supra, 178 Or.App. at pp. 563-564, 39 P.3d 866.) There can be little question the Garden Grove police would be acting pursuant to their official duties, were they to comply with the trial courts order to return Kha's marijuana to him. For that reason, the chance they would be subject to federal liability for so doing seems nugatory. (Compare United States v. Rosenthal (9th Cir.2006) 454 F.3d 943, 947-948 [private citizen who cultivated marijuana for distribution at a cannabis cooperative was not entitled to immunity from federal drug prosecution because he was not involved in the enforcement of any drug laws].)4
In short, it seems the City and its police officers really have nothing to lose by returning Kha's marijuana to him. The possession charge against Kha having been dismissed, the marijuana is not needed as part of an ongoing criminal prosecution. (Compare People v. Superior Court (Shayan) (1993) 21 Cal.App.4th 621, 26 Cal.Rptr.2d 173 [police not required to return allegedly stolen property while criminal proceedings were still pending].) And for reasons we have explained, there is little danger the City or its officers would be perceived as aiding and abetting, or could be held responsible for, any possible violation of federal law if they returned Kha's marijuana to him. Simply put, it does not appear the City would be adversely affected if its officers carried out the trial courts order in this case. (See Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-797, 166 Cal.Rptr. 844, 614 P.2d 276.)
That said, we are mindful this case involves an important issue related to California's medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.
Moreover, media reports indicate the question of whether local authorities must return lawfully seized marijuana to its owner once state criminal proceedings have been terminated in the owner's favor is a topical issue that has produced inconsistent
[ 68 Cal.Rptr.3d 665 ]

outcomes throughout the state. (See, e.g., A.P., Sonoma County Judge Orders Man's Medical Marijuana Destroyed Orange County Register (Apr. 19, 2007) <The Orange County Register : The Orange County Register ocregister/news/state/article—1663210. php> [as of May 7, 2007]; Pemberton, Police Return Seized Pot, San Luis Obispo Tribune (Jan. 4, 2003) <420 MAGAZINE. marijuana.org/SLOtribunel-04-03.htm > [as of Nov. 21, 2006]; Woods, Sheriff Returns Pot, The Pinnacle (Apr. 27, 2002) <https://216.167.102.130/pinnacle4-27-02. htm> [as of Nov. 21, 2006]; Panta, Prosecutors Drop Effort to Keep Pot From Owner, Desert Dispatch (Apr. 16, 1999) <https://www.marijuana.org/DesertDisp4-16-99.html.> [as of Nov. 21, 2006]; Metcalfe, Simi Valley Police Return Marijuana Plants to Patient, Los Angeles Times (June 20, 1998) <420 MAGAZINE. org/PRSimiValley.html> [as of July 24, 2007].)
These considerations militate strongly in favor of granting the City standing. (See Brandt v. Superior Court (1985) 37 Cal.3d 813, 816, 210 Cal.Rptr. 211, 693 P.2d 796 [reviewing mandamus petition due to the compelling circumstances presented and because case was of widespread interest]; Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1056, 134 Cal.Rptr.2d 358 [standing granted where petition presented a significant issue of first impression]; Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405 [entertaining writ petition because it presented issues of great public interest that needed prompt resolution].) So does the fact this case implicates constitutional concerns respecting the relationship between state and federal law. Courts have recognized that, consistent with our federalist system of government, state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds. (See Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 5-10, 227 Cal.Rptr. 391, 719 P.2d 987, relying on Rogers v. Brockette (5th Cir.1979) 588 F.2d 1057 and San Diego Unified Port Dist. v. Gianturco (S.D.Cal.1978) 457 F.Supp. 283.) Standing is also favored if an interested party may otherwise find it difficult or' impossible to challenge the decision at issue. (See, e.g., Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11 Cal.App.4th 1513, 1519, 14 Cal.Rptr.2d 908.) And here it appears quite likely the City will not be able to obtain judicial review of the trial courts order unless it is afforded standing in this proceeding. For all these reasons, we conclude the City has standing to challenge the trial courts order.
STATE LAWS RESPECTING MEDICAL MARIJUANA
In California, marijuana is classified as a Schedule I controlled substance and is listed as a hallucinogenic drug. (See § 11054, subd. (d)(13).) While possession of marijuana is generally prohibited, its use for medicinal purposes has been legal under state law for over a decade. Passed via Proposition 215, and codified in section 11362.5, the Compassionate Use Act of 1996(CUA) provides:
"(b)(1) The people of the State of California hereby find and declare that the purposes of the [CUA] are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the persons health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis,
[ 68 Cal.Rptr.3d 666 ]

migraine, or any other illness for which marijuana provides relief.
"(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
"(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
"(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
"(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
"(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, primary caregiver means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person. (§ 11362.5.)
In People v. Mower (2002) 28 Cal.4th 457, 122 Cal.Rptr.2d 326, 49 P.3d 1067, the California Supreme Court determined the CUA does not provide complete immunity from arrest and prosecution; rather, the statute provides a limited immunity that allows a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial ... [or] ... prior to trial on the ground of the absence of reasonable or probable cause to believe that he or she is guilty. (Id. at p. 464, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) When applicable, however, the CUA renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver. (Id. at p. 471, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) The possession and cultivation become just as lawful as the possession and acquisition of any prescription drug. (Id. at p. 482, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)
In 2003, the Legislature enacted the Medical Marijuana Program (MMP) to, inter alia, "promote the fair and orderly implementation of the CUA. [Citation.]" (People v. Wright (2006) 40 Cal.4th 81, 85, 51 Cal.Rptr.3d 80, 146 P.3d 531.) The MMP created a program for the issuance of identification cards to qualified patients and primary caregivers. (§ 11362.71 et seq.) Because the program is voluntary, one need not obtain an identification card to be entitled to the protections it provides. (§ 11362.765, subd. (b); People v. Wright, supra, 40 Cal.4th at pp. 93-94, 51 Cal.Rptr.3d 80, 146 P.3d 531 [the MMP applies to both card holders and noncard holders alike].)
"Those protections include[ ] immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana. `Subject to the requirements of this article, [qualified patients and primary caregivers] shall not be subject, on that sole basis, to criminal liability under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available
[ 68 Cal.Rptr.3d 667 ]

premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance].' (§ 11362.765, subd. (a).)" (People v. Wright, supra, 40 Cal.4th at p. 93, 51 Cal.Rptr.3d 80, 146 P.3d 531, italics added.)
This expansion of protected activities "represents a dramatic change in the prohibitions on the use, distribution and cultivation of marijuana for persons who are qualified patients or primary caregivers...." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785, 33 Cal.Rptr.3d 859.) In enacting the MMP, the Legislature quite clearly intended to broaden the scope of the CUA in order to facilitate greater access to marijuana for those patients in need of the drug. (See generally Note, It's High Time: California Attempts to Clear the Smoke Surrounding the Compassionate Use Act (2004) 35 McGeorge L.Rev. 545, 560 [the MMP "succeeds in bolstering and expanding California law that supports the right of seriously ill Californians to obtain and use medical marijuana"].) And one way the Legislature sought to achieve this goal is by authorizing qualified patients to transport marijuana intended for their own personal medical use. (People v. Wright, supra, 40 Cal.4th at p. 93, 51 Cal.Rptr.3d 80, 146 P.3d 531.)
KHA'S RIGHT TO INVOKE THE CUA AND MMP
In the trial court, the prosecution did not dispute Kha's assertion he was a qualified patient who was entitled to the protections afforded under the CUA and MMP. After personally verifying the information contained in the "Physician's Statement" Kha provided, the prosecutor dismissed the drug charge that was pending against him for insufficient evidence. Accordingly, no formal evidence was presented on the issue.
In its petition for writ of mandate, the City likewise did not dispute Kha's right to invoke California's medical marijuana laws. However, in its subsequent filings with this court, the City has put forth various reasons as to why it believes Kha does not have that right. Namely, (1) he obtained his marijuana illegally; (2) he does not have a qualifying illness; and (3) he was not charged with a requisite offense. In other words, the City challenges the applicability of the CUA and MMP in this case on both factual and legal grounds.
From a factual standpoint, the burden of proving the foundational elements for a medical marijuana defense rests with the defendant. (See People v. Mower, supra, 28 Cal.4th at pp. 481, 122 Cal.Rptr.2d 326, 49 P.3d 1067 [the defendant is merely required to raise a reasonable doubt concerning the existence of those foundational facts]; People v. Frazier (2005) 128 Cal.App.4th 807, 816-822, 27 Cal.Rptr.3d 336 [same].) However, in this case, the prosecutor impliedly accepted the validity of that defense based on Kha's presentation of informal evidence, which obviated the need for Kha to present formal evidence on the issue. Under these circumstances, it would be unfair to second-guess the evidentiary basis for Kha's defense. Because the prosecutor led Kha to believe his marijuana possession was protected under California law, and because the prosecutor did not demand further proof on the issue, he effectively waived any evidentiary issues for purposes of this proceeding, and we discern no basis for according the City a more advantageous position here than the prosecution. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6, 69 Cal.Rptr.2d 917, 948 P.2d 429 [waiver rules preclude appellate court from considering
[ 68 Cal.Rptr.3d 668 ]

issues involving the admission of evidence that were not raised in the trial court].)5
Waiver principles notwithstanding, the City's factually-based arguments are unpersuasive. The City argues Kha failed to prove he lawfully acquired the marijuana in question. Noting that at the time of his arrest Kha told the police he acquired the marijuana from "a lab in Long Beach," the City maintains this proves he neither cultivated it himself nor acquired it from a "primary caregiver," as that term is defined under the MMP.
But that does not seem to matter. "A person is entitled to the protections of the CUA if that person is a `seriously ill' Californian whose use of marijuana `has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of ... any ... illness for which marijuana provides relief.' [Citation.]" (People v. Wright, supra, 40 Cal.4th at p. 94, 51 Cal.Rptr.3d 80, 146 P.3d 531, fn. omitted.) Nothing in the CUA or MMP appears to require a qualified patient to provide evidence regarding the source of his or her marijuana.
The City also disputes whether Kha was ill enough to invoke the CUA and MMP. Specifically, it maintains Kha failed to prove he had a chronic or persistent illness for which marijuana may be beneficial. Again, this issue was not contested below, so it is hard to fault Kha for not providing a more detailed account of his medical condition, and it would be a denial of due process to rule against him on a point he was never required to prove. At any rate, the statement from his physician states Kha has a serious medical condition and may benefit from the use of medical cannabis, and that puts Kha in the category of persons the CUA and MMP were designed to protect. (See §§ 11362.5, subd. (a)(b)(l)(A) [CUA covers enumerated illnesses and any other ailment for which marijuana provides relief]; 11362.7, subd. (h) [MMP covers enumerated medical conditions and any other chronic or persistent medical symptom that may cause serious harm to patient].)
We now turn to the City's argument that, as a matter of law, the CUA and MMP are inapt in this case. By their terms, those enactments apply only to certain drug offenses that are contained in the Health and Safety Code. (§§ 11362.5, subd. (d), 11362.765, subd. (a).) Because Kha was charged with violating the Vehicle Code, the City claims he is outside the scope of those enactments. We cannot agree.
Although the CUA speaks only to the possession and cultivation of marijuana (§ 11362.5, subd. (d) [referencing §§ 11357 and 11358]), the MMP is more broadly intended to protect a qualified patient "who transports ... marijuana for his or her own personal medical use." (§ 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at p. 93, 51 Cal.Rptr.3d 80, 146 P.3d 531.) As we have explained above, the record indicates Kha is such a patient. However, the only transportation statute referenced in the MMP is section 11360. (See § 11362.765, subd. (a).) Subdivision (a) of section 11360 makes it a felony to transport marijuana, and subdivision (b) renders such conduct a misdemeanor in cases where the transportation involves not more than 28.5 grams
[ 68 Cal.Rptr.3d 669 ]

(1.0053 ounces) of marijuana, other than concentrated cannabis.
The MMP does not mention Vehicle Code section 23222, subdivision (b), the law with which Kha was charged. That provision states that "[e]xcept as authorized by law, every person who possesses, while driving a motor vehicle ... not more than one avoirdupois ounce [28.3495 grams] of marijuana, other than concentrated cannabis ... is guilty of a misdemeanor[.]" Obviously, a violation of this provision also constitutes a violation of section 11360, subdivision (b). The Vehicle Code provision is simply a more specific statute covering the act of driving, as opposed to other methods of transportation.
We are therefore impelled to the conclusion it would be illogical to find the MMP covers one provision, but not the other. Such a result would lead to the absurd consequence of permitting a defendant who drives with a large amount of marijuana to invoke the MMP (see, e.g., People v. Wright, supra, 40 Cal.4th at pp. 95-98, 51 Cal.Rptr.3d 80, 146 P.3d 531 [defendant who drove with over a pound of marijuana in his car was entitled to invoke the MMP]), while excluding drivers who transport the small amount covered by the Vehicle Code section. We cannot construe the law to permit such a clearly unintended and patently nonsensical result. (Cf. People v. Trippet (1997) 56 Cal.App.4th 1532, 1550, 66 Cal.Rptr.2d 559 [pre-MMP case allowing defendant to invoke CUA as a defense to the charge of transporting marijuana under section 11360, even though that offense is not mentioned in the CUA].)
There is an additional, even more fundamental reason why qualified patients who are charged with violating Vehicle Code section 23222, subdivision (b) should be included within the ambit of the state's medical marijuana laws. As Kha notes, that section prohibits driving with marijuana, "[e]xcept as authorized by law." (Veh. Code, § 23222, subd. (b).) Since the MMP allows the transportation of medical marijuana (§ 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at pp. 93-94, 51 Cal.Rptr.3d 80, 146 P.3d 531), the MMP effectively authorizes the conduct described in Vehicle Code section 23222, subdivision (b), when, as here, the conduct at issue is the transportation of a small amount of medical marijuana for personal use—conduct "authorized by law."
Consequently, the fact Kha was charged with violating the Vehicle Code, as opposed to the Health and Safety Code, is of no moment. Because the MMP encompasses the very conduct underlying his alleged transgression, i.e., transportation, and because the record indicates the marijuana in question was for Kha's own personal medical use, we have no reason to dispute the prosecutor's implied determination that for purposes of state law, Kha was in legal possession of the marijuana that was found in his car.6
FEDERAL TREATMENT OF MARIJUANA
While there is no shortage of learned discourse pertaining to marijuana, misunderstanding about it still abounds. For example, many would be surprised to learn the federal government did not directly criminalize the possession and sale of marijuana until 1970. (See Gonzales v. Raich, supra, 545 U.S. at pp. 10-12, 125 S.Ct. 2195.) Before then, the drug was subject to various tax and regulatory schemes that restricted its usage, but it was not banned outright or considered illegal per se.
[ 68 Cal.Rptr.3d 670 ]

(Ibid.) Equally surprising, perhaps, is that there is a "genuine difference of expert opinion" as to whether cannabis has therapeutic value to certain individuals. (Conant v. Walters, supra, 309 F.3d at p. 643 (cone. opn. of Kozinski, J.).) While there is evidence marijuana use "may be appropriate for a small class of patients who do not respond well to, or do not tolerate, available prescription drugs" (id. at pp. 640-641, fn. omitted), and its use in such cases has prompted growing acceptance of medical marijuana at the state level (id. at p. 643 [noting "Alaska, Arizona, Colorado, Maine, Nevada, Oregon and Washington ... have followed California in enacting medical marijuana laws by voter initiative"]), the drug is now generally prohibited under federal law. (Id. at p. 640; see generally Comment, The Medical Use of Marijuana: State Legislation, Judicial Interpretation and Federal Drug Laws (2002) 4 J. Legal Advoc. & Prac. 156 [discussing medical marijuana enactments and federal drug laws].)
Under the Controlled Substances Act (CSA) (21 U.S.C. § 801 et seq.), it is "unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice...." (21 U.S.C. § 844(a).) The exception regarding a doctor's prescription or order does not apply to any controlled substances Congress has classified as a Schedule I drug, such as marijuana. (See 21 U.S.C. §§ 812(c)(10), 829; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 492, fn. 5, 121 S.Ct. 1711, 149 L.Ed.2d 722.) Schedule I drugs are categorized as such because they have (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) a lack of accepted safety for use ... under medical supervision. (21 U.S.C. § 812(b)(1).)
Congress' intent to preclude the use of marijuana for medicinal purposes is reflected in this statutory scheme: "By classifying marijuana as a Schedule I drag, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. [Citations.]" (Gonzales v. Raich, supra, 545 U.S. at p. 14, 125 S.Ct. 2195.) "Simple possession" of marijuana is a misdemeanor (21 U.S.C. § 844(a)), and possession for "personal use" renders the offender "liable to the United States for a civil penalty in an amount not to exceed $10,000" (21 U.S.C. § 844a(a)). For purposes of this proceeding, Kha does not dispute he was in violation of federal law by possessing marijuana in his car.7
THE LEGALITY OF KHA'S POSSESSION UNDER SECTION 11473.5
Having determined that Kha's marijuana possession was legal under state law, but illegal under federal law, and that we should hear the City's complaints about the order of the court below, we come, at long last, to the central question presented in this case: Is Kha entitled to the return of his marijuana? In examining this issue, we first turn to section 11473.5, the statute governing the disposition of controlled substances
[ 68 Cal.Rptr.3d 671 ]

in cases that have been dismissed before trial.
Section 11473.5 provides, "All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant." (11473.5, subd. (a), italics added.)
Relying on Ross v. Ragingwire Telecommunications, Inc. (2005) 132 Cal.App.4th 590, 33 Cal.Rptr.3d 803, the City argued the federal prohibition against marijuana possession rendered Kha's possession unlawful for purposes of section 11473.5. However, shortly after the City filed its petition in this case, the Supreme Court granted review in Ross (rev. granted Nov. 5, 2005, S138130), so that case has no precedential value. (Cal. Rules of Court, rules 8.1105(e)(1) & 8.1115(a).)
There is, however, a pair of cases from the Third Appellate District that shed light on the issue before us. In People v. Bianco (2001) 93 Cal.App.4th 748, 113 Cal.Rptr.2d 392, the court upheld a probation condition prohibiting the use of marijuana, even though the defendant was a qualified patient under the CUA. The court reasoned that because marijuana possession is illegal under federal law, the condition was "reasonably directed at defendant's future criminality." (Id. at p. 753, 113 Cal.Rptr.2d 392.)
But in People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 7 Cal.Rptr.3d 226, the court held the CUA "provides a defense to a probation revocation based on marijuana possession or use." (Id. at p. 1445, 7 Cal.Rptr.3d 226.) The People argued the defendant's marijuana possession was a violation of his probation, citing the condition that he obey not only the laws of California, but also the laws of the United States. However, the court was not persuaded. It explained, "The People have misunderstood the role that the federal law plays in the state system. The California courts long ago recognized that state courts do not enforce the federal criminal statutes. `The State tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws that it can be punished by the State, in any event.' (People v. Kelly (1869) 38 Cal. 145, 150; see also People v. Grosofsky (1946) 73 Cal.App.2d 15, 17-18[, 165 P.2d 757].)" (People v. Tilehkooh, supra, 113 Cal. App.4th at pp. 1445-1446, 7 Cal.Rptr.3d 226, fn. omitted.)
Continuing, the Tilehkooh court reasoned, "Since the state does not punish a violation of the federal law `as such,' it can only reach conduct subject to the federal criminal law by incorporating the conduct into the state law. The People do not claim they are enforcing a federal criminal sanction attached to the federal marijuana law. Rather, they seek to enforce the state sanction of probation revocation which is solely a creature of state law. [Citation.] The state cannot do indirectly what it cannot do directly. That is what it seeks to do in revoking probation when it cannot punish the defendant under the criminal law. [¶] [¶] California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana possession have a qualified immunity under [the CUA]. Similarly, California courts should not enforce federal
[ 68 Cal.Rptr.3d 672 ]

marijuana law for probationers who qualify for the immunity provided by [the CUA]." (People v. Tilehkooh, supra, 113 Cal. App.4th at pp. 1446-1447, 7 Cal.Rptr.3d 226.)
Tilehkooh's reasoning is apropos here, insofar as the City is not attempting to enforce a federal sanction attached to the federal marijuana laws. Instead, it seeks to enforce the sanction of property destruction under state law as expressed in section 11473.5. But to paraphrase Tilehkooh, the City cannot do indirectly what it could not do directly. That is what it seeks to do in destroying Kha's marijuana when it cannot punish him under the criminal law for possessing it.
Gates v. Superior Court (1987) 193 Cal.App.3d 205, 238 Cal.Rptr. 592(Gates) and People v. Barajas (1978) 81 Cal.App.3d 999, 147 Cal.Rptr. 195, upon which the City relies, do not undermine the reasoning of Tilehkooh because those decisions deal with the question of whether state police officers have the authority to arrest individuals for certain violations of federal law. (See also Marsh v. United States (2d Cir.1928) 29 F.2d 172 [seminal opinion by Judge Learned Hand answering this question in the affirmative].) The validity of Kha's arrest is not at issue in this case.8 What's more, there is no question the officers who arrested Kha were acting pursuant to state, as opposed to federal, law.
The distinction between mere arrest by local police agencies and a full-on prosecution in state courts is an important one. Gates was a case in which the Los Angeles Police Department, investigating violations of state law, came across information suggesting their suspects were in the country illegally. They notified Immigration and Naturalization Services, and Gates complained this was improper enforcement by state officers of a federal statute. But as the Gates court recognized, this was not sufficient state involvement to constitute "enforcement" of the federal statutes. "Where otherwise warranted investigation by local officers leads to evidence of a federal civil or criminal violation, the local authority has the right to exchange information with federal authorities; to deny such an exchange is not reasonable and rewards those federal violators fortunate enough to be arrested by local, rather than federal, officials." (Gates, supra, 193 Cal. App.3d at p. 219, 238 Cal.Rptr. 592.) As Gates explains, this is a matter of "`comity and good citizenship.'" (Ibid.) Arrest and notification, however, is a far cry from processing such individuals through a state court system with neither mandate for, nor experience in,' the application of federal laws. We can find no case that would support that process.
Notwithstanding the legality of Kha's arrest, the question remains whether in this state proceeding, the City can invoke and rely solely on federal law to justify a particular sanction (i.e., the destruction of Kha's property) when Kha's conduct was consistent with, and indeed sanctioned under, state law. Amici for the City point out that state courts generally have the authority to "render binding judicial decisions that rest on their own interpretation of federal law." (ASARCO, Inc. v. Kadish (1989) 490 U.S. 605, 617, 109 S.Ct. 2037,
[ 68 Cal.Rptr.3d 673 ]

104 L.Ed.2d 696.) But saying state judges may interpret federal law is a far cry from saying they may invoke it to punish conduct that is legally permissible under state law. Applying the reasons of Tilehkooh, we think judicial enforcement of federal drug policy is precluded in this case because the act in question—possession of medical marijuana—does not constitute an offense against the laws of both the state and the federal government. Because the act is strictly a federal offense, the state has "no power to punish ... [it] ... as such." (People v. Tilehkooh, supra, 113 Cal.App.4th at p. 1445, 7 Cal.Rptr.3d 226, quoting People v. Kelly, supra, 38 Cal. at p. 150.) Indeed, we, and all the trial courts in the state, would be astonished if prosecutors began filing federal charges in state courts.
Given the restrictions on state courts' enforcement of federal laws, section 11473.5 cannot be read as requiring the destruction of a controlled substance based solely on the fact that possession of the substance is prohibited under federal law. Unless the substance's possession is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute. In other words, the question of whether a substance is lawfully possessed for purposes of section 11473.5 turns on state, not federal law. If, as here, the defendant's possession of a controlled substance is lawful under California law, then the substance is "lawfully possessed" for purposes of that section.
PREEMPTION
Still, "the supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law. `tate law that conflicts with federal law is "without effect."' [Citations.]" (In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1265, 63 Cal.Rptr.3d 418, 163 P.3d 106.) The City here invokes the preemption doctrine, but not by asking us to declare the CUA and MMP unconstitutional across the board, nor by challenging the right of Californians to use marijuana for medicinal reasons. Rather, it urges us to find the federal drug laws preempt state law to the extent state law authorizes the return of medical marijuana to qualified users.
The City relies primarily on Gonzales v. Raich, supra,545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1, but that case was not decided on preemption grounds. The sole issue presented in Raich was whether Congress had the constitutional authority under the Commerce Clause to prohibit the manufacture and possession of marijuana, even when the marijuana was produced and consumed locally in accordance with the CUA. (Id. at p. 15, 125 S.Ct. 2195.) Finding the aggregate effect of such local activity could well impact interstate commerce, the court upheld Congress' authority in this regard. (Id. at pp. 16-22, 125 S.Ct. 2195.)
The Raich court was not overly impressed with the fact California had legalized the possession and cultivation of marijuana. Indeed, it noted "[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is `"superior to that of the States to provide for the welfare or necessities of their inhabitants,"' however legitimate or dire those necessities may be. [Citations.] Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause [citation], so too state action cannot circumscribe Congress' plenary commerce power. [Citation.]" (Gonzales v. Raich, supra, 545 U.S. at p. 29, 125 S.Ct. 2195, fn. omitted.)
[ 68 Cal.Rptr.3d 674 ]

This does not mean the CUA is preempted by federal law. The quoted passage simply reflects the realization that, having determined Congress' commerce power extended to local drug activity, it did not matter to the Raich court that Californians had voted to legalize medical marijuana under state law. That fact simply did not weigh into the court's consideration in deciding the scope of Congress' authority under the Commerce Clause.
And understandably so. Doctrinally, the Commerce Clause focuses on Congress' power to enact legislation in the first place. If Congress has a rational basis for concluding the targeted activity has a substantial effect on interstate commerce, it can regulate it. (Gonzales v. Raich, supra, 545 U.S. at p. 22, 125 S.Ct. 2195.) Whether the regulation is welcome or unwelcome in the state in which the activity occurs is of no moment. As the Raich court explained, states can neither limit nor expand the scope of Congress' authority under the Commerce Clause. Consequently, the CUA and the contours of that law were completely irrelevant to the issue presented in Raich. (See Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v. Raich 2005 Sup.Ct. Rev. 1, 34.)
The upshot of Raich is that the federal government and its agencies have the authority to enforce the federal drug laws, even in a state like California that has sanctioned the use of marijuana for medicinal purposes. However, we do not read Raich as extending beyond this particular point, into the realm of preemption. The Raich court merely examined the validity of the CSA under the Commerce Clause; it did not go further and examine the relationship between the CSA and the CUA. (See Note, California Takes a Hit: The Supreme Court Upholds Congressional Authority Over the State-Approved Use of Medicinal Marijuana (2006) 28 U.Ark. Little Rock L.Rev. 545, 580 ["the Court's holding in Raich did not address the preemption of the (CUA)"]; Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police (2006) 91 Iowa L.Rev. 1449, 1490 [Raich "neither declared (the CUA) invalid on preemption or any other grounds nor gave any indication that California officials must assist in the enforcement of the CSA."].) Consequently, the high court's decision did not sound the death knell of the CUA in state court proceedings. (Cf. People v. Wright, supra, 40 Cal.4th at p. 89, fn. 5, 51 Cal.Rptr.3d 80, 146 P.3d 531 [noting the parties in that case both agreed Raich is not implicated in deciding "the applicability of the CUA to state criminal charges"].)9
The fact is, "the structure and limitations of federalism ... allow the States `"great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons."' [Citation.]" (Gonzales v. Oregon (2006) 546 U.S. 243, 270, 126 S.Ct. 904, 163 L.Ed.2d 748 [striking down a federal rule aimed at undermining Oregon's physician-assisted suicide law].) This includes the power to decide what is criminal and what is not. (Gonzales v. Raich, supra, 545 U.S. at p. 42, 125 S.Ct. 2195 (dis. opn. of O'Connor, J.).) Affording the states broad authority on these matters "promotes innovation by allowing
[ 68 Cal.Rptr.3d 675 ]

for the possibility that `a single courageous State' may, if its citizens choose, serve as a laboratory; and try novel[,] social[,] and economic experiments without risk to the rest of the country." (Ibid.; accord United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at p. 502, 121 S.Ct. 1711 (conc. opn. of Stevens, J.).) Therefore, any "`consideration of issues arising under the Supremacy Clause "start with the assumption that the historic police powers of the States [are] not to be superseded by ... a Federal Act unless that [is] the clear and manifest purpose of Congress."'" (Jevne v. Superior Court (2005) 35 Cal.4th 935, 949, 28 Cal.Rptr.3d 685, 111 P.3d 954, italics added, citing Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407.)
This assumption against preemption has particular force in this case. Preemption, it must be remembered, is fundamentally a question of congressional intent. (In re Tobacco Cases II, supra, 41 Cal.4th at p. 1265, 63 Cal.Rptr.3d 418, 163 P.3d 106.) And we are adjured to presume against preemption unless we find it to be the "`"clear and manifest purpose of Congress."'" (Ibid., quoting Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 506, 112 S.Ct. 2608, 120 L.Ed.2d 407, quoting Maryland v. Louisiana (1981) 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576.) But in enacting the CSA, Congress made it clear it did not intend to preempt the states on the' issue of drug regulation. Indeed, "[t]he CSA explicitly contemplates a role for the States in regulating controlled substances...." (Gonzales v. Oregon, supra, 546 U.S. at p. 251, 126 S.Ct. 904.) It provides: "No provision of [the CSA] shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision ... and that State law so that the two cannot consistently stand together." (21 U.S.C. § 903.) This express statement by Congress that the federal drug law does not generally preempt state law gives the usual assumption against preemption additional force. [Citation.] (National Pharmacies, Inc. v. De Melecio (D.P.R.1999) 51 F.Supp.2d 45, 54; see also Note, Guns, Drugs, and ... Federalism?—Gonzales v. Raich Enfeebles the Rehnquist Courts Lopez-Morrison Framework (2006) 61 U. Miami L.Rev. 237, 251 [describing 21 U.S.C. § 903 as a direct preemption disclaimer].)
Despite this, the City argues that in enacting the CSA, Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant's medical marijuana under state law would be absolutely anathema to congressional intent. We cannot agree. It's abjuration of preemption is simply too clear. Congress enacted the CSA to combat recreational drug abuse and curb drug trafficking. (Gonzales v. Oregon, supra, 546 U.S. at p. 271, 126 S.Ct. 904; Gonzales v. Raich, supra, 545 U.S. at pp. 10-13, 125 S.Ct. 2195.) Its goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states. (Gonzales v. Oregon, supra, 546 U.S. at p. 269, 126 S.Ct. 904.) Speaking for the majority in Gonzales v. Oregon, Justice Kennedy explained, "The [CSA] and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent
[ 68 Cal.Rptr.3d 676 ]

to regulate the practice of medicine generally." (Ibid., italics added.)
The CUA does not authorize doctors to use their prescription-writing powers "to engage in illicit drug dealing and trafficking as conventionally understood." Instead, the act grants doctors the authority to recommend marijuana to their patients for medicinal purposes. No other use is contemplated. As a matter of fact, the CUA provides that it shall not "be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes." (§ 11362.5, subd. (b)(C)(2).) Similarly, nothing in the MMP "shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit." (§ 11362.765.)
These restrictions are consistent with the goals of the CSA. Irrespective of Congress' prohibition against marijuana possession, "t is unreasonable to believe that use of medical marijuana by [qualified users under the CUA] for [the] limited purpose [of medical treatment] will create a significant drug problem" (Conant v. McCaffrey (N.D.Cal.1997) 172 F.R.D. 681, 694, fn. 5, affd. in Conant v. Walters, supra,309 F.3d 629), so as to undermine the stated objectives of the CSA. (Cf. Gonzales v. Oregon, supra, 546 U.S. at p. 273, 126 S.Ct. 904 [state initiative allowing doctors to prescribe controlled substances for the purpose of facilitating a patient's suicide is not inconsistent with the CSA's objective to prevent recreational drug use].)
It is even more unreasonable to believe returning marijuana to qualified patients who have had it seized by local police will hinder the federal government's enforcement efforts. Practically speaking, this subset of medical marijuana users is too small to make a measurable impact on the war on drugs. Not only are their numbers meager, persons seeking the return of their medical marijuana are not entitled to possess the drug in such quantities as would make them likely candidates for federal prosecution. (See Conant v. Walters, supra, 309 F.3d at p. 646, fn. 10 (cone. opn. of Kozinski, J.) [noting federal prosecutors typically pursue marijuana charges only in cases involving the cultivation of over 500 indoor plants or 1,000 outdoor plants, or the possession of more than 1,000 pounds of the drug].) Upholding the return of Kha's 8.1 grams of marijuana would simply not constitute a real or meaningful threat to the federal drug enforcement effort. This is not a case in which preemption is necessary to the federal scheme.
In considering the City's preemption argument, it is also important to recognize what the CUA does not do. It does not expressly "exempt medical marijuana from prosecution under federal law." (United States v. Cannabis Cultivators Club (N.D.Cal.1998) 5 F.Supp.2d 1086, 1100.) "[0]n its face," the Act "does not purport to make legal any conduct prohibited by federal law; it merely exempts certain conduct by certain persons from California drug laws." (Ibid.) While in passing the CUA the voters may have wanted to go further and actually exempt marijuana from prosecution under federal law, a result which would have led to an irreconcilable conflict between state and federal law (ibid.), we know from Raich that the Commerce Clause forecloses that possibility. So, what we are left with is a state statutory scheme that limits state prosecution for medical marijuana possession but does not limit enforcement of the federal drug laws. This scenario simply does not implicate
[ 68 Cal.Rptr.3d 677 ]

federal supremacy concerns. (United States v. Cannabis Cultivators Club, supra, 5 F.Supp.2d at p. 1100.)10
Our conclusion in this regard finds support in the case of Hyland v. Fukuda (9th Cir.1978) 580 F.2d 977. There, the Ninth Circuit Court of Appeals ruled a Hawaii law allowing felons to carry guns was not preempted by a federal law prohibiting such conduct. The court reasoned the state law "has no impact on the legality of the same act under federal law. Simply put, Congress has chosen to prohibit an act which Hawaii has chosen not to prohibit; there is no conflict between (the federal law) and (the state law)." (Id. at p. 981.)
Similarly, here, there is no conflict based on the fact that Congress has chosen to prohibit the possession of medical marijuana, while California has chosen not to. California's statutory framework has no impact on the legality of medical marijuana under federal law: "Enforcement of the CSA can continue as it did prior to the [CUA]." (Gonzales v. Raich, supra, 545 U.S at p. 63, 125 S.Ct. 2195 (dis. opn. of Thomas, J.).)
In arguing for preemption, the City relies on Frazier v. State (Alaska 1977) 566 P.2d 1023, which was decided two years after the Alaska Supreme Court ruled "that possession of marijuana by adults at home for personal use is constitutionally protected" by the right of privacy contained in the Alaska and United States Constitutions. (Ravin v. State (Alaska 1975) 537 P.2d 494, 511.) In the wake of this ruling, the defendant in Frazier was charged with possessing marijuana in his car. (Frazier v. State, supra, 566 P.2d at p. 1023.) After the charge was dismissed, he sought the return of his marijuana, but the lower courts denied the request on the ground that marijuana possession is prohibited under federal law. (Ibid.) On appeal to the Alaska Supreme Court, the defendant argued the federal law violated his right to privacy under the United States Constitution. (Id. at p. 1024.) However, in a curt, almost dismissive four-paragraph opinion, the Frazier court rejected this argument and determined that in light of the federal prohibition against marijuana, supremacy principles precluded the defendant from getting his marijuana back. (Ibid.)
Noticeably absent from the lead opinion in Frazier is any substantive analysis to support its holding. The opinion does not even mention whether the defendant's marijuana possession—having occurred in a car and not a home—was legal under state law. Justice O'Connor raised this point in his concurring opinion and argued that if the defendant's possession was in fact protected by the right of privacy in the Alaska Constitution, then the federal prohibition would not be controlling on the return of property issue. (Frazier v. State, supra, 566 P.2d at p. 1024.) In that situation, an order compelling the return of the defendant's marijuana would be entirely valid, according to Justice O'Connor, because it "would not be one of `interposition' by Alaska to prevent the enforcement of federal law. The federal authorities could still act immediately after the material was placed in the possession of the defendant."
[ 68 Cal.Rptr.3d 678 ]

(Ibid.) In other words, the supremacy clause would not prevent the return of the defendant's marijuana. But the Alaska majority did not address this issue.
We share Justice O'Connor's viewpoint in this regard. Since Kha's possession of marijuana is legal under state law, we do not believe the trial court's order interferes with, or is preempted by, federal law. Admittedly, there is tension between state and federal drug policy on the issue of medicinal marijuana. It is quite clear California has chosen a policy that is at odds with the federal government's. But the important point for purposes of this case is that state law does not interfere with the federal government's prerogative to criminalize marijuana. As a general rule, it is still illegal to possess marijuana under federal law, and nothing in this opinion should be construed as suggesting otherwise. In fact, our holding with respect to the preemption issue presented in this case is very narrow. All we are saying is that federal supremacy principles do not prohibit the return of marijuana to a qualified user whose possession of the drug is legally sanctioned under state law.11
DUE PROCESS AND THE RIGHT TO THE RETURN OF LAWFULLY POSSESSED PROPERTY
Nevertheless, as the City points out, neither the CUA, the MMP nor section 11473.5 expressly provide for the return of lawfully possessed marijuana that has been seized by the police. The City sees this as a legal impediment to ordering the return of Kha's marijuana, but it fails to recognize the police cannot retain a person's property without running afoul of basic constitutional considerations. Particularly, the Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." (U.S. Const., 14th Amend., § 1; see also Cal. Const., art. I, § 15.) It is beyond dispute that [t]he right to regain possession of ones property is a substantial right ... [Citation.] Continued official retention of legal property with no further criminal action pending violates the owners due process rights. [Citation.] (People v. Superior Court (Lamonte) (1997) 53 Cal.App.4th 544, 549, 61 Cal.Rptr.2d 810.)
In Lamonte, the People objected to the defendants motion for the return of various telephone and computer equipment on the ground it was used to facilitate credit card fraud. However, because the defendant was not convicted of fraud, and because the items were not contraband per se, the court determined due process compelled their return to the defendant. (People v. Superior Court (Lamonte), supra, 53 Cal.App.4th at pp. 551-553, 61 Cal.Rptr.2d 810.) Even though the defendant was convicted of other offenses and had shown himself capable of using the property for fraudulent purposes, the court ruled a court may not refuse to return legal property to ... deter possible future crime. (Id. at p. 553, 61 Cal.Rptr.2d 810.) Other courts have similarly invoked due process principles to ensure the return of lawfully possessed property. (See, e.g., Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 77 Cal.Rptr.2d 507 [due process required court to grant claimant's motion for return of intellectual property
[ 68 Cal.Rptr.3d 679 ]

where circumstances indicated claimant acquired property lawfully]; People v. Superior Court (Loar), supra, 28 Cal.App.3d at pp. 614-615, 104 Cal.Rptr. 876 [continued police retention of legally protected adult films would constitute a "patent denial of due process"]; Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 896-897, 103 Cal.Rptr. 354 [consistent with due process principles, defendant was entitled to the return of a revolver he was lawfully entitled to possess].)
The City pays little heed to this line of authority and instead directs our attention to our own decision in Chavez v. Superior Court (2004) 123 Cal.App.4th 104, 20 Cal.Rptr.3d 21. In that case, the police seized over 10 pounds of marijuana and 46 marijuana plants from the defendant, but charges against him were dismissed in the furtherance of justice because he was already serving time on another case. (Id. at p. 107, 20 Cal.Rptr.3d 21.) The defendant sought the return of a reasonable amount of marijuana for medicinal purposes, but it was clear based on the amount of marijuana he had—he was not a qualified user under the CUA. (Id. at pp. 108-111, 20 Cal.Rptr.3d 21.)12 That being the case, he was not in lawful possession of the marijuana for purposes of section 11473.5, and therefore the marijuana had to be destroyed. (Id. at p. Ill, 20 Cal.Rptr.3d 21.) In so holding, this court also noted that nothing in the CUA requires, or authorizes, the ... return [of] confiscated marijuana. (Ibid, fn. omitted.) However, even if it did, it would not have helped the defendant in Chavez because, given the amount of marijuana found in his possession, he was not entitled to the CUA's protections in the first place. (Id. at p. 110, 20 Cal.Rptr.3d 21.)
The present case is factually inapposite to Chavez, given that Kha was in lawful possession of his marijuana under state law. Even though state law is silent as to whether a qualified patient like Kha is entitled to the return of his marijuana once criminal charges against him have been dismissed, due process principles seem to us to compel that result. Continued official retention of a qualified patient's marijuana simply cannot be squared with notions of fundamental fairness. The City no doubt has every right to retain a defendant's marijuana if it is pursuing a marijuana-related prosecution against him, or if the defendant's possession does not comport with the CUA. In those situations, the law clearly contemplates the destruction of the subject marijuana. (See Chavez, supra,123 Cal.App.4th 104, 20 Cal.Rptr.3d 21 and § 11473.5 [discussed above]; see also § 11475 [calling for the forfeiture of controlled substances that were illegally possessed]; Pen.Code, §§ 1413 [allowing the police to retain property that is subject to forfeiture] & 1417.6 [authorizing the destruction of court exhibits, including narcotics, that are unlawful to possess].)
But neither of those circumstances exist here. Withholding small amounts of marijuana from people like Kha who are qualified patients under the CUA would frustrate the will of the people to ensure such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction. (§ 11362.5, subd. (b)(1)(A), (B).) It would also, as explained, be inconsistent with due process, as well as other provisions of the law that contemplate the return of lawfully possessed property. (See, e.g., Pen.Code, §§ 1417.5
[ 68 Cal.Rptr.3d 680 ]

[return of exhibits in criminal case]; 1540 [restoration of property that was wrongfully taken pursuant to search warrant]; 1538.5, subd. (e) [return of property subject to successful search or seizure motion].)
We are convinced, therefore, that the reasoning of Chavez is inapt here, The distinguishing feature between that case and this one is that Kha, unlike the defendant in Chavez, is a qualified patient whose marijuana possession was legally sanctioned under state law. That is why he was not subjected to a criminal trial, and that is why the state cannot destroy his marijuana. It is also why the police cannot continue to retain his marijuana. Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him.13
THE TENTH AMENDMENT AND OTHER CONSIDERATIONS
In light of our holding that federal law does not control the outcome of this case, we need not consider the arguments put forth by Kha and the Attorney General as to why ordering the destruction of Kha's marijuana pursuant to federal law would violate the Tenth Amendment, which reserves the residual powers of the federal government to the states or the People. (See generally Conant v. Walters, supra, 309 F.3d at pp. 645-646 (cone. opn. of Kozinski, J.) [arguing that the federal government cannot force state officials to enforce the federal marijuana laws without running afoul of the "commandeering doctrine."].) Resolution of the Tenth Amendment issue is simply unnecessary, given our previous conclusions. We therefore turn to the arguments raised by amici curiae on behalf of the City.
Amici argue the police should not have to return Kha's marijuana to him, even though he is qualified to use the drug for medical reasons under California law.14 Characterizing Kha as a "criminal defendant," amici claim the CUA only provides him with a "defense" to certain offenses and does not make his possession of medical marijuana "lawful." But Kha is clearly not a criminal defendant with respect to the subject marijuana. Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms "criminal" and "defendant" do not aptly apply to him.
Furthermore, our Supreme Court has ruled that when applicable, the CUA renders possession and cultivation of ... marijuana noncriminal for a qualified patient or primary caregiver. (People v. Mower, supra, 28 Cal.4th at p. 471, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) The possession and cultivation become no more criminal ... than the possession and acquisition of any prescription drug. (Id, at p. 482, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) Translation: Medical marijuana is lawful under the terms and conditions set forth in the CUA.
Like the City itself, amici also fear the Garden Grove police would be violating
[ 68 Cal.Rptr.3d 681 ]

federal law by returning Kha's marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court's order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir.2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended "to act as a pusher rather than a medical professional." (Relying on United States v. Moore (1975) 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333.)
By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).
Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 663-664.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha's marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient's medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.
Amici for the City also claim that ordering the return of Kha's marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering "the law of the land," which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha's conduct is actually sanctioned and made "noncriminal" under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)
That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court's order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, "[o]ur federalist system, properly understood, allows California and a growing
[ 68 Cal.Rptr.3d 682 ]

number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens." (Gonzales v. Raich, supra, 545 U.S. at p. 74, 125 S.Ct. 2195 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.
By returning Kha's marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court's order comports with an officer's dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const, art. XX, § 3.)15
Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court's order to return Kha's marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha's right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha's property.
DISPOSITION
The petition is denied.
ARONSON and FYBEL, JJ., concur.
Footnotes
1. Joining these groups are the California District Attorneys' Association and the Cities of Bakersfield, Burbank, Costa Mesa, Dixon, Exeter, Huntington Beach, La Habra, Newport Beach, Ontario, Placentia, Redding, Santa Clara, Tulare, Visalia, Whittier and Yreka.
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2. Unless noted otherwise, all further statutory references are to the Health and Safety Code.
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3. A nonapplicable exception to this rule allows law enforcement, if certain requirements are satisfied, to summarily destroy that amount of a suspected controlled substance that exceeds 10 pounds in gross weight. (§ 11479.)
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4. In Rosenthal, the court suggested in dicta that federal immunity will not attach under 21 U.S.C. § 885(d) if the state law being enforced contradicts federal law. (See United States v. Rosenthal, supra, 454 F.3d at p. 948.) That was not a consideration in the Kama case, however, and the extent to which the state law in question conflicts with federal law strikes us as bearing more on the issue of preemption, discussed post, than immunity.
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5. An argument can also be made that the City waived the issue of Kha's right to invoke the CUA and MMP by failing to raise it in its initial petition. (See Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1, 54 Cal.Rptr.2d 512 ["`A point not presented in a party's opening brief is deemed to have been abandoned or waived.'"].)
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6. We note there is nothing in the record suggesting Kha was smoking marijuana in his car, an activity that would not be covered under the MMP. (See § 11362.79.)
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7. We also notice, at the City's request, that "The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances" (21 U.S.C. § 801(7)), including cannabis. (See Evid.Code, § 451, subd. (a).)
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8. Although Kha does not challenge the legality of his arrest, he does request that we take judicial notice of the California Highway Patrol procedures for arresting marijuana-transporting motorists who invoke the CUA during the course of a police encounter. However, the request is not accompanied by any authority and the document in question is not one which we may judicially notice. (See Evid. Code, § 450 et seq.) In addition, the CHP's arrest procedures are not germane to any of the issues presented in this case. We therefore deny the request.
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9. On remand from the Supreme Court, the Ninth Circuit rejected Raich's remaining challenges to the CSA, finding the law does not violate substantive due process or impermissibly infringe upon California's sovereign powers. (See Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850.) The court did not discuss the issue of preemption, as it was never raised.
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10. The controversy in the Cannabis Cultivators Club case centered on whether qualified patients can invoke the medical necessity defense when facing prosecution for manufacturing and distributing marijuana under the CSA. The United States Supreme Court had the final say in the matter and answered that question in the negative. (United States v. Oakland Cannabis Buyers' Cooperative, supra,532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722.) However, that ruling has no bearing in this case because the court's decision turned exclusively on the interpretation of federal law. (See People v. Mower, supra, 28 Cal.4th at p. 465, fn. 2, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)
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11. The broader issue of whether federal law generally preempts California's medical marijuana laws is, as we have explained, not before us. However, we note that last year a Superior Court judge in San Diego rejected a sweeping challenge to the CUA and MMP on preemption grounds. (See County of San Diego v. San Diego NORML, case Nos. GIC860665 & GIC861051.) That decision is currently being appealed to our colleagues in Division One.
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12. As set forth in the MMP, a qualified patient may generally possess up to eight ounces of dried marijuana and may maintain up to six mature or twelve immature marijuana plants. (§ 11362.77, subd. (a).) With his 10 pounds of dried marijuana and 46 marijuana plants, the defendant in Chavez far exceeded these limits.
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13. The out-of-state decisions cited by the City are distinguishable because the property involved in those cases, in addition to being prohibited under federal law, was also illegal to possess, and thus subject to nonreturn and forfeiture, under state law. If Kha's marijuana were contraband under state law, it too would be subject to nonreturn and forfeiture, just like the pirated compact discs in State v. Cohen (2006) 154 N.H. 89, 907 A.2d 983, the firearm in State v. One Uzi Semi-Automatic 9mm Gun (Me. 1991) 589 A.2d 31, and the wild animals in Commonwealth v. Reynolds (Pa.Cmwlth.2005) 876 A.2d 1088.
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14. Amici do not dispute Kha is a qualified medical marijuana user.
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15. This provision of the California Constitution requires police officers to "take and subscribe the following oath or affirmation: [] I, ____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter."
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_______________________________________________________

So my thought here is file a motion for the return of your seized property, most courts call this once you been charged as a motion to suppress..

But, your right to possess is not criminal so, I don't think the court could use the suppression process, since it is legal and not contraband. Make sense ?

 

[bsemaj]

The proposition of unlawful entry without a warrant in a medical marijuana registry case .


STATE v. MAZZOLA

242 P.3d 674 (2010)

238 Or. App. 201


STATE of Oregon, Plaintiff-Respondent,
v.
Frank A. MAZZOLA, Defendant-Appellant.

05CR0011; A139257.

Court of Appeals of Oregon.




Argued and Submitted April 29, 2010.

Decided October 27, 2010.

Joshua B. Crowther, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Harry B. Wilson, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and David B. Thompson, Senior Assistant Attorney General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and EDMONDS, Senior Judge.

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HASELTON, P.J.

Defendant appeals his convictions for possession of a controlled substance, former ORS 475.992(4)(a) (2003), renumbered as ORS 475.840(3)(a) (2005), and manufacture of a controlled substance, former ORS 475.992(1)(a) (2003), renumbered as ORS 475.840(1)(a) (2005), following a joint jury trial with his wife, Allisa Mazzola.1 He assigns error to the trial court's denial of his motion to suppress evidence of an extensive marijuana growing operation on his property. In particular, defendant asserts that the trial court erred in determining that the police officers' warrantless entry into a mobile home, which, in turn, revealed the evidence of marijuana cultivation, was justified under the "emergency aid" exception to the warrant requirement. We agree with defendant and, further, reject the state's proffered alternative basis for affirmance. Accordingly, we reverse and remand.

We review the trial court's denial of defendant's motion to suppress for errors of law, State v. Chambers, 226 Or.App. 363, 365, 203 P.3d 337 (2009), and limit our review to the facts available to the trial court when it decided that motion. State v. Saunders, 221 Or.App. 116, 118, 188 P.3d 449, rev. den., 345 Or. 416, 197 P.3d 1105 (2008). We accept the trial court's findings that are supported by sufficient evidence in the record and presume, with regard to pertinent and disputed facts for which there are no express findings, that the trial court decided those facts in a manner consistent with its ultimate conclusions. State v. Baker, 237 Or.App. 342, 344, 240 P.3d 735 (2010).

In May 2004, two officers from the Josephine County Sheriff's Office, Deputy Hubbard and Corporal Justima, came to defendant's property to investigate a 9-1-1 report about a domestic disturbance. According to the 9-1-1 caller, there was "yelling" and "door slamming" noises coming from defendant's property and "a history of guns as well as a history of possible drug use," although there was no indication that any shots had been fired. The caller also indicated that there were at least two children present.

When the officers arrived, they encountered defendant's wife, Allisa, outside the couple's log cabin with two of the couple's three children. Defendant's wife was "calm" and "cooperative." She explained to the officers that she and defendant had had a verbal disagreement about "home matters" but that the disagreement had ended. She also told the officers that the argument had been verbal and, indeed, neither she nor the children showed any signs of injury. The officers inquired about the whereabouts of defendant and the third child, who was not present. Defendant's wife explained that the child was at a birthday party and indicated that defendant was inside the mobile home, which was located about 15 feet away from the cabin.

At that point, the officers went to the mobile home to make "certain that nobody was hurt" and that defendant had not been "shot * * * and left to die" there. Loud music was blaring from the mobile home. When the officers approached the mobile home, they noticed a tray of small, wilted marijuana plants that appeared to have been discarded on the front porch and the odor of marijuana emanating about two feet from the front door, which was ajar. The officers loudly announced their presence, and Hubbard used his flashlight to rap on the doorframe and the metal siding of the trailer.

When there was no response, the officers—without a warrant or consent—entered. Once the officers entered the mobile


[ 242 P.3d 677 ]

home, the smell of marijuana became "overwhelming," and the officers could see marijuana plants under grow lights and evidence of additional marijuana cultivation in another room.
Defendant, who was inside the mobile home, met the officers in the living room and turned off the music. Defendant confirmed that he and his wife had had a verbal disagreement and that it was now resolved. Hubbard then expressed his concern "about the number of marijuana plants [he] was observing." Defendant explained that he was an Oregon medical marijuana cardholder, that his wife was a caregiver, and that he was also growing marijuana for another woman. Hubbard asked to inspect the medical marijuana cards, and defendant led Hubbard into another room, where one of the cards was posted. There, Hubbard saw "everal more plants and a complete grow operation." Hubbard again expressed his concern that defendant "was over the legal limit for both cardholders" and asked for permission to "inspect the rest of the residence and his operation." Defendant gave the officers permission to inspect the rest of the mobile home, yielding further evidence of illegal marijuana cultivation. After the officers had completed their inspection, Hubbard told defendant that he was "way over the limit," handcuffed him, and called for narcotics detectives to come to the scene.

One of the detectives who responded to that call, Detective Vorberg, advised defendant, who remained handcuffed, of his Miranda rights and asked him if he would consent to a search of the mobile home. Vorberg told defendant that he did not have to give his consent and answered various questions defendant had about whether he was going to jail and whether a warrant would be obtained. Defendant gave his verbal consent and also signed a written consent form. The officers then proceeded to seize and catalogue the marijuana that they had discovered following their initial entry and inspection. Defendant and his wife were subsequently charged with various crimes relating to the distribution, manufacture, and possession of marijuana.

Before their consolidated trial, defendant and his wife moved to suppress the marijuana evidence, arguing that the officers' initial warrantless entry into the mobile home was not justified under the "community caretaking" statute, ORS 133.033,2 or the "emergency aid" exception to the warrant requirement,3 and that defendant's consent to the search was either involuntary or was obtained by exploitation of the officers' unlawful entry. The state's primary argument was that the officers' initial entry was justified under ORS 133.033 and the emergency aid exception. In addition, the state countered the defendants' arguments pertaining to nonattenuation and argued that the evidence was subject to the inevitable discovery exception to the exclusionary rule.

The trial court concluded that the officers' initial entry into the mobile home was lawful because there was a "legitimate emergency" and, given that conclusion, further reasoned that defendant's subsequent consent was lawfully obtained:

"I also believe there was valid consent in this case. Just because there was an unwarranted entry into another person's home, I do not think that it necessarily


[ 242 P.3d 678 ]

takes away from a valid consent. It was exploiting legal police conduct and not illegal police conduct."
In sum, the trial court concluded that the officers' entry into the mobile home was justified under the emergency aid exception and did not reach the parties' inevitable discovery and exploitation arguments.4

On appeal, defendant challenges that determination. The state, in response, acknowledges that the officers' initial entry into the mobile home cannot be justified under the emergency aid exception and that the trial court erred in its conclusion in that regard. Nevertheless, the state contends that we should affirm the trial court's denial of suppression on the alternative ground that, because of the Miranda warnings and other circumstances, defendant's subsequent consent to the search was so attenuated from the unlawful police conduct (viz., the officers' warrantless entry and presence within the mobile home) as to justify denial of suppression.5

We begin with the lawfulness of the officers' warrantless entry into the mobile home. See State v. Cox, 212 Or.App. 637, 640, 159 P.3d 352 (2007) (appellate court has an independent obligation to assess the correctness of a party's concessions regarding errors of law). For the following reasons, we accept, as well founded, the state's concession that the officers' conduct in that regard was unlawful.

The elements of the emergency aid doctrine, as set out in State v. Follett, 115 Or.App. 672, 680, 840 P.2d 1298 (1992), rev. den., 317 Or. 163, 856 P.2d 318 (1993), are as follows:

"(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.

"(2) The emergency must be a true emergency—the officer's good faith belief alone is insufficient.

"(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.

"(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency."

(Footnote omitted.) With respect to the first two elements, an officer's subjective belief that a "true emergency" exists must be substantiated by "objective indicia of a particular individual being in distress or of the presence of a potentially dangerous individual," suggesting that "immediate action was required to protect life." State v. Burdick, 209 Or.App. 575, 581, 149 P.3d 190 (2006).

We addressed the application of those elements to circumstances highly analogous to those presented here in State v. Salisbury, 223 Or.App. 516, 196 P.3d 1017 (2008). In Salisbury, the officer heard male and female voices yelling and screaming, and profanity coming from inside the defendant's apartment. Id. at 519, 196 P.3d 1017. The yelling and screaming lasted for about five minutes. Id. The officer then called for backup, and, for a period of 15 to 20 minutes, the officers pounded on the door, announced their presence, and requested, then ordered, the defendant


[ 242 P.3d 679 ]

to open the apartment door. Id. at 520, 196 P.3d 1017. Finally, when there was no response, the officers forced the door open and entered the residence.
On appeal, the defendant assigned error to the trial court's denial of his motion to suppress evidence discovered inside the residence, and we concluded that the emergency aid exception did not justify the officers' entry into the defendant's apartment. 223 Or.App. at 524-25, 196 P.3d 1017. In so holding, we reasoned that,

"ignificantly, the police did not testify that they heard any sounds of a physical struggle or an indication that an act of violence had occurred inside the apartment. Moreover, no occupant of the apartment requested assistance from the police, even though the police made their presence known over a significant time period. It is correct, as the state argues, that it could be inferred that, because the lights were turned off and there were no longer any sounds coming from the apartment, the screaming woman inside the apartment was unable to respond to their inquiries due to injury or restraint; however, that inference is counterbalanced by the inference that what the police heard was evidence of a domestic quarrel that did not require their intervention."

Id. at 524, 196 P.3d 1017. In sum, we concluded that there was no objective evidence to substantiate the officer's subjective belief that the woman in the apartment had been harmed or was at risk of harm, which was necessary for the emergency aid doctrine to apply.

Here, as in Salisbury, there was no evidence that anything other than a verbal disagreement had occurred. The 9-1-1 caller reported hearing "yelling" and "door slamming," not sounds that would suggest a physical struggle or that weapons had been used. The officers' observations of defendant's wife and the children, who appeared calm and uninjured, corroborated the wife's account that no physical violence had ensued. Cf. State v. Agnes, 118 Or.App. 675, 677-79, 848 P.2d 1237 (1993) (upholding warrantless entry under emergency aid exception where neighbor heard "banging" in addition to "yelling and screaming" and where woman who answered door appeared disheveled and frightened and officers could see upset furniture and the defendant, who appeared intoxicated and acted belligerent, through the doorway behind her). Indeed, unlike in Salisbury, it was apparent that the dispute had ended before the officers arrived.

Thus, in the circumstances here, the officers' subjective concerns did not justify their warrantless intrusion for the purposes of the emergency aid exception. However wellmeaning the officers' motivation, their concerns were not objectively corroborated— and, indeed, were contradicted by overwhelming evidence that all that had occurred was a "domestic quarrel" that did not require the officers' intervention. See Salisbury, 223 Or.App. at 524, 196 P.3d 1017; see also Baker, 237 Or.App. at 348 (holding that reports of "yelling or screaming" coming from the residence and evidence that the woman who lived there had used a prearranged code word to alert a neighbor that she needed immediate police assistance, combined with the officers' observations of the couple having a verbal argument, did not justify warrantless entry into the residence). Because the emergency aid exception is inapposite, the officers' warrantless entry was unlawful.

We turn, then, to the state's alternative basis for affirmance—that intervening circumstances, including the rendition of Miranda warnings and Vorberg's admonition to defendant that he need not consent, so attenuated defendant's consent from the predicate unlawful conduct as to justify the denial of suppression. Before addressing the substance of that proffered alternative basis for affirmance, we pause to state our understanding of the content and contours of that contention.

As we understand it, the state's consent argument pertains solely to the consent that Vorberg elicited from defendant—and is not predicated on defendant's statements to Hubbard, when he gave Hubbard permission to inspect "the rest of" the marijuana growing operation in the mobile home. Further, we do not understand the state to advance the contention that the consent defendant gave to Vorberg operated retroactively to validate the officers' prior unlawful search of


[ 242 P.3d 680 ]

the premises in the manner addressed in State v. Weaver, 319 Or. 212, 874 P.2d 1322 (1994). Rather, the state's contention is that defendant's consent, as elicited by Vorberg, operated prospectively to authorize subsequent police conduct, validating the discovery of evidence after that consent was given.6 Thus, the state's attenuation argument is framed in the classic construct described in State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), in which arguably attenuating circumstances occur between unlawful police conduct and a defendant's consent to search, with the latter, in turn, leading to the discovery of incriminating evidence.
With that understanding, the state's "attenuation" argument fails because the record discloses that most, and perhaps all, of the marijuana evidence that defendant seeks to suppress was discovered by the police before Vorberg elicited defendant's consent. Consequently, even if the state were correct with respect to the validity of defendant's consent—a matter that we do not reach7—suppression is still required as to the evidence discovered before the consent and any derivative evidence. See Hall, 339 Or. at 25, 115 P.3d 908.

Reversed and remanded.

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Footnotes

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1. Allisa Mazzola also appeals. See State v. Mazzola (A139255), 238 Or.App. 201, 242 P.3d 674 (2010). In both cases, the evidentiary record and the issues raised with regard to the trial court's denial of their motion to suppress are identical.

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2. ORS 133.033 gives police officers the authority to perform various "community caretaking functions," which are defined as "any lawful acts that are inherent in the duty of the peace officer to serve and protect the public," ORS 133.033(2), and specifically include:
"(a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:

"(A) Prevent serious harm to any person or property;

"(B) Render aid to injured or ill persons; or

"(C) Locate missing persons."

ORS 133.033(2).

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3. Although ORS 133.033 gives officers statutory authorization to perform various community caretaking activities, including entering homes and other premises to perform certain kinds of searches, it does not create an exception to the warrant requirement. State v. Martin, 222 Or.App. 138, 146, 193 P.3d 993 (2008), rev. den., 345 Or. 690, 201 P.3d 910 (2009). Rather, to be lawful, a warrantless community caretaking search of a home must meet both the criteria set out in ORS 133.033 and established constitutional standards. Id. at 142 n. 2, 145-46, 193 P.3d 993.

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4. Although the trial court did not expressly state whether its decision was based on the community caretaking statute, ORS 133.033, or the emergency aid exception to the warrant requirement, or was predicated on both, in order for the officers' search to be "lawful" under ORS 133.033 and to deny suppression, the trial court must have determined that their entry comported with a constitutional exception to the warrant requirement, see Martin, 222 Or.App. at 146, 193 P.3d 993—and here the only such exception the state invoked was the emergency aid exception.

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5. In respondent's brief, the state
"concedes that it would be difficult to justify the deputies' warrantless entry into defendant's mobile home under the emergency-aid exception, given the paucity of evidence in this record supporting the trial court's finding that the deputies reasonably believed that a life-threatening emergency requiring their immediate assistance existed at the time of the entry" and makes no argument justifying the officers' entry on that basis. At oral argument, counsel for the state confirmed that the state is not disputing that the initial entry was unlawful and focused only on attenuation. The state does not reiterate the inevitable discovery contention that it raised in the trial court.

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6. During oral argument, we expressed our understanding that the state was making "no argument about retroactive consent." Counsel for the state did not contradict that understanding or invoke precedents pertaining to retroactive consent.

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7. See, e.g., State v. Ayles, 348 Or. 622, 237 P.3d 805 (2010); State v. Doyle, 186 Or.App. 504, 63 P.3d 1253, rev. den., 335 Or. 655, 75 P.3d 898 (2003).

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[1234a5678b]

Great research! Hope I never have use for it, although things are getting "interesting" here in California.

 

[bsemaj]

@ 1234a5678b,

Thank you.. hope you never need it either but, if you do you know where to come for help..


I posted this on ASA under timber trespass.. it contains a mass of legal case law, massive amount in this area because we live in timber territory and people like to steal timber, bushes and crops..

RCW 4.24.630- Timber Trespass

Timber Trespass Statute-RCW 64.12.030

§ 64.12.040. Mitigating circumstances -- Damages

Sparks v. Douglas county, 39 Wn.App. 714-Treble Damages - Wash. Rev. Code § 64.12.030. 'productive tree value'

Bunch v. Grandview North,LLC., 142 Wn.App. 81-TREBLE DAMAGES

Allyn, ET.AL. v. Boe, ET.AL., 87 Wn.App. 722-PRODUCTIVE TREE VALUE-MMJ

Rev. Code Wash. (ARCW) § 64.12.030 (2011)

§ 64.12.030. Injury to or removing trees, etc. -- Damages

EXAMPLE OF A SUIT UNDER THIS STATUTE:

.pdf 20080724_valleyfire_suit1.pdf (Size: 184.99 KB / Downloads: 0)


Kind of hard to refute a plant is worth $12,500 +

When I have some spare moments, I will do some research for R.I. in this area of law and see what I come up with..

 

[bsemaj]

This one here just makes me kind of giddy. LMFAO .

Sparks v. Douglas county, 39 Wn.App. 714-Treble Damages - "production value"

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CASE SUMMARY

PROCEDURAL POSTURE: Appellant landowners challenged the order of the Superior Court for Douglas County (Washington), which entered a judgment and awarded damages to the landowners based on the production value of seven cut apple trees located outside respondent county's right of way on the basis that the superior court erred in refusing to treble the damages Wash. Rev. Code § 64.12.030.

OVERVIEW: At the county's request the landowners removed a row of apple trees, which later became the center of the county road and granted the county a right of way deed. Years later the county ordered further trees cut to unblock the view of an intersection, the landowner trimmed the trees but refused to remove them. The county then ran a survey from a disputed monument and claimed trees within 20 feet as being in the right of way and cut down the trees. The landowner filed a claim for damages, and while the claim was pending the county returned and cut down seven more trees. The superior court affirmed the county's right of way and granted the landowner damages but refused to treble the damages. The landowner appealed. The court affirmed in part and reversed in part. The court found that the superior court had correctly determined the right of way. However, the court found that the superior court had committed error in failing to award treble damages because the county knew a lawsuit was pending which disputed its right of way when it cut down the seven trees. The court found under the circumstances the award of treble damages under § 64.12.030 was mandatory.

OUTCOME: The court affirmed the part of the order of the superior court which determined the width of the county's right of way and determined the county was liable for timber trespass, but reversed the part of the order that denied treble damages for timber trespass to the landowner and remanded to the superior court for the trebling of damages.

CORE TERMS: deed, right of way, treble damages, color, trespass, legal description, feet, fruit trees, center line, destruction, conveyed, trebling, cutting, treble, prescriptive, ownership, stumpage, easement, general rule, adverse possession, probable cause, substantial evidence, measure of damages, involuntary, conveyance, announced, disputed, monument, surveyor, trebled

LexisNexis® Headnotes Hide Headnotes

Contracts Law > Statutes of Frauds > General Overview
Real Property Law > Deeds > Statutes of Frauds
Real Property Law > Purchase & Sale > Contracts of Sale > Formalities
HN1Go to the description of this Headnote. Deeds must contain an adequate legal description of the real property to be conveyed. An inadequate legal description is a violation of the statute of frauds.

Real Property Law > Adverse Possession > General Overview
Real Property Law > Deeds > General Overview
HN2Go to the description of this Headnote. Where property is held under color of title possession of the entire property is not required for purposes of adverse possession. Correlatively, it is a well-settled general rule that one who enters upon land under color of title, such as a deed, and possesses only a part of the land, will be deemed to have possession of the entire tract to the limits of the boundaries described in the color of title for purposes of adverse possession, the constructive seisin in deed is the equivalent of actual seisin.

Real Property Law > Ownership & Transfer > Natural Persons
Torts > Damages > Punitive Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN3Go to the description of this Headnote. Where a person has knowledge of a bona fide boundary dispute, and thereafter consciously, deliberately, and intentionally enters upon the disputed area for the purpose of destroying, and does destroy, trees or other property which cannot be replaced, such acts are neither casual nor involuntary, nor can they be justified upon the basis of probable cause for belief by the tort feasor that he owned the land, but, on the contrary, are without lawful authority and will subject such person to treble damages as provided by Wash. Rev. Code §64.12.030.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Punitive Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN4Go to the description of this Headnote. Wash. Rev. Code § 64.12.030 provides that whenever any person shall cut down, any tree, on the land of another person, without lawful authority, in an action by such person against the person committing such trespasses if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Compensatory Damages > Property Damage > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > General Overview
HN5Go to the description of this Headnote. Wash. Rev. Code § 64.12.040 provides that if upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, judgment shall only be given for single damages.

Torts > Damages > General Overview
HN6Go to the description of this Headnote. The primary aim in measuring damages is compensation. This contemplates that the damages for a tort should place the injured person as nearly as possible in the condition he would have occupied if the wrong had not occurred.

Governments > Legislation > Interpretation
Torts > Damages > Punitive Damages > General Overview
HN7Go to the description of this Headnote. The language of the Wash. Rev. Code § 64.12.030 is mandatory, whenever any person shall cut down, any tree if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be. Wash. Rev. Code § 64.12.030. The only time damages are mitigated is under Wash. Rev. Code § 64.12.040. To not assess treble damages would eliminate the clear statutory distinction between negligent and intentional destruction of growing fruit trees. Such an interpretation would render the statute meaningless; statutes must be construed so as to be effective.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview
HN8Go to the description of this Headnote. An appellate court will not retry factual issues of a case but will only review the record to determine if the findings are supported by substantial evidence.

Hide Headnotes / Syllabus

SUMMARY: [***1] Nature of Action: Action to recover damages from a county for cutting down fruit trees which the plaintiff claimed were not within the county's right of way.

Superior Court: The Superior Court for Douglas County, No. 12195, Charles W. Cone, J., on April 19, 1983, entered a judgment awarding damages based on the production value of seven cut trees located outside the county's right of way.

Court of Appeals: Holding that the trial court had correctly determined the width of the county's right of way but that the plaintiff was entitled to treble damages for timber trespass, the court affirms the liability determination and awards treble damages.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Deeds — Legal Description — Deficiency — Effect A deed containing an inadequate legal description of the property to be conveyed violates the statute of frauds and is void.

WA[2][2] Adverse Possession — Extent of Right — Color of Title — Possession of Part of Land Described A prescriptive right based on possession under color of title extends to the entire property described in the title conveyance documents, even if the entire property was not occupied by the adverse possessor throughout the prescriptive period.

WA[3][3] Trespass — Cutting of Timber — Treble Damages — Disputed Ownership The cutting down of trees growing on land which the cutter knows is subject to a legal action to determine ownership does not qualify for single damages under RCW 64.12.040 as activity which is casual or involuntary or which is based on probable cause for the cutter's belief that he owns the land.

WA[4][4] Statutes — Construction — Meaningful Interpretation A statute is interpreted in a manner which makes it meaningful and effective.

WA[5][5] Trespass — Cutting of Timber — Treble Damages — Valuation Method — Effect The fact that damage resulting from the cutting down of trees is measured by the production value of the trees rather than by their stumpage value does not preclude the trebling of damages for a willful timber trespass under RCW 64.12.030.

WA[6][6] Appeal and Error — Findings of Fact — Review — In General A trial court's factual resolutions will be sustained on appeal if they are supported by substantial evidence.

COUNSEL: Lowell D. Sperline and Sperline & Lacy, Inc., P.S., E. Wenatchee, Washington, for appellants.

Judith L. McCauley, Prosecuting Attorney, Waterville, Washington, for respondents.

JUDGES: McInturff, J. Green, C.J., and Munson, J., concur.

OPINION BY: McINTURFF

OPINION

[*716] [**588] Mr. and Mrs. Sparks appeal from a judgment for $ 6,365.33 against Douglas County for the destruction of seven fruit-bearing trees in their orchard. They contend the [**589] judgment sum must be trebled under RCW [***2]
64.12.030. We reverse in part and remand for trebling of damages.

In the spring of 1950, Mr. Sparks was contacted regarding a request by Douglas County to extend Columbia Drive, now Empire Way, through his property. Mr. Sparks agreed to remove one row of fruit trees, which would become the center of the road, and to grant the County a right of way which would extend to the next row of trees on either side, approximately 40 feet in width. Mr. Sparks and his wife then signed a legal document entitled Right of Way Deed granting to Douglas County

a strip of land 40 feet wide, being 20 feet on each side of line of said road as surveyed in the SW 1/4 of the NE 1/4 & SE 1/4 of the NE 1/4 of Section 27, Township 23 North, Range 20 E.W.M.

The road was established and maintained without incident until 1979-80 when a problem developed regarding the fruit trees which blocked the view of the intersection of Empire Way and 32 N.W. In an effort to placate the County, Mr. Sparks removed some limbs but the county engineer was not satisfied. Mr. Sparks was warned that if the trees were not cut back sufficiently, the County would remove them. The County then ran a survey line, using [***3] a monument disputed by the experts, and from that line claimed trees within 20 feet east as being on the right of way.

On April 21, 1980, the county road department proceeded to cut down five of Mr. Sparks' bearing apple trees. A claim was filed for damages of $ 6,675 on May 7, 1980, which was [*717] denied; this action followed.

While the action was pending, the County returned to the Sparks property in January 1981 and cut more bearing apple trees. The trial court found a total of 12 trees were removed, 7 of which were not within the County's right of way. The court granted Mr. Sparks damages for $ 6,365.33 but did not allow treble damages as it found the County "had a deed which indicated to them that the trees were on Douglas County right of way."

The first issue raised by Mr. and Mrs. Sparks concerns the lateral extent of the right of way granted to Douglas County.

The court determined the legal description contained in the 1950 deed was insufficient and that decision is supported by the evidence. Frederick Skinner, engineer and land surveyor, testified he was unable to locate the road or its direction from information contained on the face of the deed.

HN1Go to this Headnote in the case. WA[1][1] Deeds must [***4] contain an adequate legal description of the real property to be conveyed. In re Estate of Verbeek, 2 Wn. App. 144, 156, 467 P.2d 178 (1970). An inadequate legal description is a violation of the statute of frauds. In re Estate of Verbeek, at 157 (citing Bigelow v. Mood, 56 Wn.2d 340, 353 P.2d 429 (1960)). No reference was made to a specific survey and there was evidence a surveyor could not locate the property, given the description contained in the deed. The cases cited by the County are not dispositive as they hold specific reference to the second document must be made within the deed.

The court concluded the County had a prescriptive right, not only to the roadway as blacktopped, but to the full 40-foot right of way the parties had arguably intended as evidenced by the written documents of the road establishment procedure.

The question of the extent of the easement acquired, i.e., whether it included the road banks as well as the blacktopped area, is answered in Yakima Vly. Canal Co. v. Walker, 76 Wn.2d 90, 455 P.2d 372 (1969). The facts are [*718] similar, the only difference being the establishment of a canal [***5] and its banks as opposed to a highway. The question before the trial court there was the same as here: what was the lateral extent of the easement? There, in 1894, Ada Wilson conveyed a one-half interest in real property to the canal company which included a right of way to the extent of 50 feet from the center line of the canal as surveyed. The other one-half interest was never conveyed. In 1965, the defendants acquired the one-half interest not conveyed and constructed a house, fence and patio [**590] which the court later determined encroached on the canal's right of way.

WA[2][2] The court stated at page 93:

It is abundantly apparent that plaintiff claims its 50-foot easement on both sides of the canal center line under color of title. Even though the conveyance be defective or void, the true owner will be deemed disseized to the extent of the boundaries stated in the conveyance by the adverse claimant's possession of a part of the premises.

The rule is well stated in 3 Am. Jur. 2d Adverse Possession § 27, at 109:

It is the general rule that HN2Go to this Headnote in the case.where property is held under color of title possession of the entire property is not required for purposes of adverse [***6] possession. Correlatively, it is a well-settled general rule that one who enters upon land under color of title, such as a deed, and possesses only a part of the land, will be deemed to have possession of the entire tract to the limits of the boundaries described in the color of title for purposes of adverse possession, . . . The constructive seisin in deed is the equivalent of actual seisin.

The court then concluded the surveillance of the canal banks was critical to the structural support of the canal and prevention of extensive flooding. By constructing the fence the defendants had made such an inspection impossible. The court then granted an injunction directing defendants to remove their improvements.

The same principles apply to the case at bench. The County has a prescriptive right under color of title to a 40-foot right of way even though it has never exercised ownership [*719] of the road banks until recently. The unobstructed view down Empire Way is necessary for the prevention of traffic accidents at the intersection of Empire Way and 32 N.W. Hence, we affirm the 40-foot right of way.

WA[3][3] The second issue raised by Mr. Sparks concerns the measure of [***7] damages to be awarded for the seven trees cut which were outside the County's right of way. The trial court set the value of the trees at $ 6,365.33, based on the loss of production formula announced in Penney Farms, Inc. v. Heffron, 24 Wn. App. 150, 599 P.2d 536 (1979). The question to be determined is whether those damages should be trebled in light of RCW 64.12.030 1 and RCW 64.12.040. 2 In Hirt v. Entus, 37 Wn.2d 418, 430, 224 P.2d 620 (1950), our court stated the following general rule:

HN3Go to this Headnote in the case."Where a person has knowledge of a bona fide boundary dispute, and thereafter consciously, deliberately, and intentionally enters upon the disputed area for the purpose of destroying, and does destroy, trees or other property which cannot be replaced, such acts are neither casual nor involuntary, nor can they be justified upon the basis of probable cause for belief by the tort feasor that he owned the land, but, on the contrary, are without lawful authority and will subject such person to treble damages as provided by statute."

(quoting Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 (1948)).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 HN4Go to this Headnote in the case.RCW 64.12.030 provides:

"Whenever any person shall cut down, . . . any tree, . . . on the land of another person, . . . without lawful authority, in an action by such person . . . against the person committing such trespasses . . . if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be."
[***8] 2 HN5Go to this Headnote in the case.RCW 64.12.040 provides:

"If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, . . . judgment shall only be given for single damages."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

There is evidence that the County cut seven trees in the spring of 1981 despite the fact a lawsuit was pending [*720] against the County in which Mr. Sparks claimed ownership of the land in question. Under the rule announced in Hirt, the County had sufficient notice of a boundary dispute and chose to continue with the destruction of the trees. We conclude, under these circumstances, the County's trespass [**591] was not within the parameters of RCW 64.12.040 so as to allow the court a statutory rationale for denying treble damages. The trial court's finding of good faith, as to these trees, is not supported by substantial evidence.

However, we raise another issue, sua sponte, regarding the application of treble damages where the value of the tree is based on its production, rather than stumpage [***9] value. Counsel has responded to this issue.

Penney Farms, at 151-52, provides the following insights with respect to setting damages for loss of fruit trees:

The purpose underlying tort damages is succinctly set forth in C. McCormick, Law of Damages § 137 (1935):

HN6Go to this Headnote in the case.The primary aim in measuring damages is compensation[.] . . . [T]his contemplates that the damages for a tort should place the injured person as nearly as possible in the condition he would have occupied if the wrong had not occurred[.]

The court then established the measure of damage of a fruit tree as being the lost production value while replacement trees were maturing less the cost of production. The court was not faced with the issue of intentional destruction and the possible trebling of those damages based on production value.

In Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 873-74, 602 P.2d 357 (1979), the court considered arguments advanced by a landowner who sought treble damages for the intentional cutting and removing of Christmas trees from her land. The court stated:

It was proved to the satisfaction of the trial court here, and the defendant does [***10] not question that proof, that the plaintiff planned, with the help of her father, to cut these Christmas trees and sell them at retail. . . . it is apparent that to award her only the stumpage value would be to deny full compensation for her loss.

[*721] The court then affirmed the award of treble the amount the plaintiff would have realized had she been allowed to market her trees as Christmas trees, less the cost of transportation to market and the costs of sale.

In Lawson v. Helmich, 20 Wn.2d 167, 181, 146 P.2d 537 (1944), an action was brought under the statute for the intentional destruction of apple trees. The court trebled the damages of $ 500 which were based on the difference in the value of the property before and after the trees were cut, rather than the stumpage value of the trees.

HN7Go to this Headnote in the case. WA[4][4] WA[5][5] The language of the statute is mandatory

Whenever any person shall cut down, . . . any tree . . . if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

(Italics ours.) RCW 64.12.030. The only time damages are mitigated is under RCW 64.12.040, which we have [***11] found does not apply in this case. To not assess treble damages would eliminate the clear statutory distinction between negligent and intentional destruction of growing fruit trees. Such an interpretation would render the statute meaningless; statutes must be construed so as to be effective. Avlonitis v. Seattle Dist. Court, 97 Wn.2d 131, 138, 641 P.2d 169, 646 P.2d 128 (1982).

The purpose of the treble damages statute is outlined in Henriksen v. Lyons, 33 Wn. App. 123, 125, 652 P.2d 18 (1982):

Although the award of treble damages conflicts with the more general policy against punitive damages, it is thought to be justified in this context because (1) it discourages the practice of private eminent domain; (2) it provides a rough estimate of future damages, especially for premature harvesting of trees; and (3) it punishes the voluntary trespasser.

Based on the damage formula announced in Penney Farms, the court arrived at the proper measure of damages; it erred when it declined to treble those damages because of its finding the County acted in good faith. We, therefore, [*722] remand [**592] for a trebling of the amount [***12] found by the court.

The first issue raised by the County in its cross appeal concerning the sufficiency of the legal description has been answered. The County's argument regarding the doctrine of "estoppel by deed" is a moot issue because the court has determined the County is entitled to all of the land described by right of prescriptive easement under color of title.

The County next argues the court was in error when it established the center line 5 to 6 feet west of the original monument. The County cites Erickson v. Wick, 22 Wn. App. 433, 437-38, 591 P.2d 804 (1979) and Staaf v. Bilder, 68 Wn.2d 800, 415 P.2d 650 (1966) in support of the rule that the intent of a new survey is to reestablish the boundary lines as determined by the original surveyors rather than where modern surveys would place them. A review of the testimony provided by the County's expert Mr. Rotter and by Mr. Sparks' expert, Mr. Skinner, indicates disagreement as to the validity of the monuments used to begin the survey and the fact there may have been a discrepancy in the deflection angle of 7 or 8 minutes in the survey done by Mr. Rotter. A determination of the center [***13] line of the road is a factual determination to be made by the trial court. The judge had an opportunity to view the site as well as all the center lines determined by the different surveys. He determined the line drawn by Western Pacific Engineering was the most accurate.

HN8Go to this Headnote in the case. WA[6][6] An appellate court will not retry factual issues of a case but will only review the record to determine if the findings are supported by substantial evidence. In re Marriage of Smith, 100 Wn.2d 319, 324, 669 P.2d 448 (1983); Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). The testimony relating to the line drawn by Western Pacific Engineering is substantial evidence to support the court's finding.

The case is remanded to the Superior Court for trebling of the damage award of $ 6,365.33.

 

[bsemaj]

Here is a case as a "safe" rule of thumb to go by in legal theory . And a 1st impressions case.

PENNEY FARMS v. HEFFRON
24 Wn. App. 150 (1979)
599 P.2d 536
PENNEY FARMS, INC., Appellant,
v.
LYLE W. HEFFRON, ET AL, Respondents.
No. 3128-3.
The Court of Appeals of Washington, Division Three.

September 6, 1979.
Walter E. Weeks, Jr., and Weeks, Dietzen & Skala, for appellant.
Roger K. Garrison, for respondents.




McINTURFF, J.
Plaintiff, Penney Farms, Inc., appeals the damage award of a favorable judgment.
The sole issue is whether the trial court applied the appropriate measure of damages for injury to and destruction of commercial orchard trees when it awarded plaintiff $225.1 We find that it did not.

[1, 2] The purpose underlying tort damages is succinctly set forth in C. McCormick, Law of Damages § 137 (1935):

The primary aim in measuring damages is compensation[.] ... [T]his contemplates that the damages for a tort should place the injured person as nearly as possible
[ 24 Wn. App. 152 ]

in the condition he would have occupied if the wrong had not occurred[.]

Toward this goal of compensation, Marrion v. Anderson,36 Wn.2d 353, 355, 218 P.2d 320 (1950) (a case involving the destruction of a small orchard) held:

[W]here a part of the real property is destroyed, the loss may be estimated upon the diminution in the value of the premises, if any results, or upon the value of the part severed or destroyed; and that the measure of damages should be adopted which would prove most beneficial to the injured party. See also Brereton v. Dixon, 20 Utah.2d 64, 433 P.2d 3 (1967).

[3] Although the trial court correctly deemed the appropriate measure to be the value of the trees damaged or destroyed because there was no diminution in land value, it failed to recognize that in the case of commercial cherry trees, the value of a damaged tree is inextricably tied to its productivity. Watkins v. FMC Corp. – Niagara Chem. Div.,12 Wn.App. 701, 706, 531 P.2d 505 (1975); Brereton v. Dixon, supra; St. Louis Southwestern Ry. v. Follis, 268 S.W. 1030 (Tex. Civ. App. 1925). Accord, Hill v. Morrison, 263 P. 573, 575 (Cal. Dist. Ct. App. 1928); Morris v. Hazel, 24 Del. 324, 77 A. 766, 767 (1910). Thus, loss of productivity, i.e., the dollar value of the fruit production of the trees destroyed during the time the plaintiff lost the production, less the dollar value of the foreseeable costs of production (cf. Desimone v. Mutual Materials Co., 20 Wn.2d 434, 438, 147 P.2d 945 (1944); Shotwell v. Dodge, 8 Wn. 337, 343, 36 P. 254 (1894)), is the appropriate method to determine the extent of loss, and not the land value divided by the number of trees thereon, which ultimately is an attempt to couch the value of the trees in before and after land value terms.

In the instant case, the trial court, being somewhat unsure of the proper measure of damages, entered unchallenged findings that a cherry tree will produce 680 pounds of cherries per year, the retail value of which was 25.1 cents
[ 24 Wn. App. 153 ]

per pound, and the cost of harvesting the cherries was 8 cents per pound. Additionally, the court found that the time of lost productivity was 10 years, i.e., 5 years of total lost production and 10 years of partial lost production while replacement trees were maturing.2 As a result, the court found the total loss of production from the three trees totally destroyed, the tree one-third destroyed, and the two trees one-quarter destroyed was $4,456.20 over 10 years.

A 10-year loss of productivity is inappropriate in this case. During the course of litigation, the plaintiff sold its orchard. Therefore, the production lost by the plaintiffs does not range over 10 years, rather only from the time of destruction to the time of sale of the orchard. Thus, the matter should be remanded for the appropriate calculation of lost production damages.3

The cases relied upon by the respondents4 for use of a measure of damages based upon the difference in the land value of the orchard before and after the destruction of the fruit trees are not controlling for two reasons:

(1) they do not involve mature, fruit-bearing commercial orchard trees, and

(2) Marrion v. Anderson, supra, permits the adoption
[ 24 Wn. App. 154 ]

of a measure of damages based either on the land value diminution or the value of the item injured or destroyed, whichever proves most beneficial to the injured party.5

Finally, in determining whether to apply the lost production measure, it is immaterial whether the fruit trees at the time of destruction or injury were laden with an existing crop, since the lost production measure of damages is applicable to the loss of a prospective crop. See Fuhrman v. Interior Warehouse Co., 64 Wn. 159, 163, 116 P. 666 (1911).

Judgment of the Superior Court is affirmed, but the case is remanded to the trial court for the recomputation of damages.

MUNSON, J., concurs.

ROE, J. (dissenting)
In this case we are concerned with the measure of damages to cherry trees in the orchard, three of which were destroyed and three of which were damaged. The law appears to be that where any trees, timber, or shrubs on the land of another or in a city lot are destroyed or injured, the plaintiff may proceed under RCW 64.12.030, and treble damages shall be given for the value of the trees for willful trespass. Or if the damage is permanent, the diminution market value may be used. Harkoff v. Whatcom County,40 Wn.2d 147, 241 P.2d 932 (1952). Since there was no reduction in market value, the measure of damages by the trial court is correct as to the destroyed trees. As to the trees which were merely injured, it would seem that the damage was temporary, so the measure of damages would be the temporary loss of production so as to make the plaintiff whole. Watkins v. FMC Corp. – Niagara Chem. Div.,12 Wn.App. 701, 531 P.2d 505 (1975).
[ 24 Wn. App. 155 ]

This is a net loss that can be recovered, that is, the market value of the crop, less the cost of harvesting and marketing, Shotwell v. Dodge, 8 Wn. 337, 36 P. 254 (1894).
Reconsideration denied October 12, 1979.

Footnotes
1. Although the trial court felt constrained to use a measure of damages based upon the difference in the value of the orchard as realty before and after the injury and destruction, it did enter findings of fact which establish a basis for an award of damages which reflects lost productivity.

The rationale underlying the trial court's award may be summarized as follows:

1. The measure of damages is generally limited to the value of the orchard land before the destruction of some of the trees less the value of the land after the destruction;

2. If the diminution in land value is negligible, then the value of the trees destroyed should be determined;

3. To determine the value, the trial court first ascertained the fair market value of an acre of orchard and then divided that amount by the number of trees per acre, thereby arriving at the value per tree of $45 each;

4. Since one tree was destroyed after the defendants were aware of plaintiff's claim of ownership, the value of that tree should be tripled (RCW 64.12.030); however, the other two trees were not, at least arguably, intentionally damaged, so the award for them should only be $45 apiece.

It should also be noted that the award does not compensate plaintiff for the injury to three other trees which were partially destroyed by the defendants.
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2. Finding of fact No. 20 read:

"That the Plaintiff testified that the reasonable average production for mature cherry trees in that area is 680 pounds per tree; that a reasonable average price per pound for cherries produced on the orchard in question is 25.1 cents; that harvesting costs averaged .08 cents per pound; that it takes 15 years for cherry trees to come into reasonable bearing, with no production during the first five years and an increasing partial production during the next ten years to maturity, and that it is reasonable to compute the lost production from the destroyed and damaged trees as a total period of ten years."
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3. This holding should not be construed as necessarily applying to an extended period of lost productivity wherein contingencies of frost, blight, variations in the market, and availability of labor may be too speculative to support a damage award.
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4. Falcone v. Perry,68 Wn.2d 909, 416 P.2d 690 (1966); Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946); Dierssen, Inc. v. May Valley Logging Co., 138 Wn. 263, 244 P. 564 (1926); Park v. Northport Smelting & Refining Co., 47 Wn. 597, 92 P. 442 (1907); James S. Black & Co. v. F.W. Woolworth Co.,14 Wn.App. 602, 544 P.2d 112 (1975).
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5. Additionally, the use of the before and after land value measure of damages in Lawson v. Helmich, 20 Wn.2d 167, 146 P.2d 537, 151 A.L.R. 930 (1944), was not challenged by the injured party and may have represented the appropriate compensation for the injury suffered in that case, but definitely not in this case.
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[bsemaj]

I love this one, as it nails some important issue down petty darn good..

B & B FARMS, INC. v. MATLOCK'S FRUIT FARMS, INC.
73 Wn.2d 146 (1968)
437 P.2d 178
B. & B. FARMS, INC., Appellant,
v.
MATLOCK'S FRUIT FARMS, INC., Respondent*
No. 38784.
The Supreme Court of Washington, Department One.

February 8, 1968.
Stouffer, Brown & Knight, by W.L. Brown, Jr., for appellant.
Wallace B. Hager (of Hager & Young), for respondent.




ROSELLINI, J.
The trial court in this action found that the plaintiffs, through an agent, purchased raspberry plants from the defendant which were labeled Willamette, but which proved to be Puyallup berries, and that the plaintiff was damaged as a result. The difference in variety was a material matter, although the two varieties do not differ greatly in appearance or quality. The difference lies in their susceptibility to mildew, which attacks the Puyallup variety but scarcely affects the Willamette.

The trial court also found that there was no fraud on the part of the defendant, but that it was negligent in labeling the plants. It found that the two varieties cannot be distinguished until they bear fruit,1 and that the officers of the defendant honestly believed that they were selling Willamette raspberry plants. As a result of the mistaken labeling the plaintiff, which is in the business of growing raspberries, lost 1 year of production on a 17-acre tract, plus the expenses involved in removing and replacing the plants. Judgment was entered in favor of the plaintiff in the amount of $5,135.35.

On this appeal the plaintiff contends that the trial court should have awarded damages for lost profits, which were not included in the judgment. Instead the rental value of the land for a period of 1 year was allowed. Upon this contention of the plaintiff, the trial court, in its memorandum decision, said:
[ 73 Wn.2d 148 ]

Plaintiff contends for the rule of damages set forth in the Nakanishi case [Nakanishi v. Foster,64 Wn.2d 647, 393 P.2d 635 (1964)] by which it would be entitled to recover the market value of crops which would have been raised had the plants been as ordered, less the expenses of raising, harvesting and marketing the crop, together with the salvage of the crop made by plaintiff through the sale of any part of the crop. The Court has concluded that this measure of damages does not apply in the instant case for the reason that we are here talking about a perennial [sic] rather than an annual crop. In the cited case the crop would have been planted and harvested, all within a period of a few months. In the case at bar the mature crop for which plaintiff claims damages would not have been harvested until more than two years after the planting. [sic] The Court is of the opinion that it cannot say without speculating or conjecturing, just what the yield of a crop two years after the planting would be. Any number of fortuitous circumstances might intervene, and as a matter of fact in this case a flood did occur in 1964, causing considerable damage to the crop.

Another factor which in the Court's opinion differentiates the damage rule in this case from the Nakanishi case is that plaintiff here had no crop to salvage, having plowed up the plants long before their maturity date. No evidence was produced by either side as to what the reasonable yield would have been from the plants had plaintiff left them in the ground. The Court is satisfied that the true measure of damages in this case is the loss directly and naturally resulting to the plaintiff from the mislabeling of the plants by defendant.

The Court finds that plaintiff has established by a fair preponderance of the evidence, damage and loss as follows:

Cost of the plants $767.60
Fertilizer, one year 340.00
Spray, one year 348.00
Cultivating, one year 425.00
Hoeing, one year 425.00
Irrigation, one year 180.00
Removal of old plants 675.75
Cost of Equipment to remove 510.00
Labor 320.00
Cost of Replanting 170.00
Rental Value of Lane, one year 850.00
Land taxes, one year 124.00

[ 73 Wn.2d 149 ]

The Court therefore grants judgment to plaintiff against the defendant in the sum of $5,135.35, together with its costs and disbursements taxable herein.

The plaintiff produced witnesses to whom it posed a hypothetical question according to which they were asked to assume that Willamette raspberry plants were planted in the soil in question and were properly tended, that the weather was about normal for the period covered, that the land was inundated by flood but that the plants were not disturbed by it. They were asked to give their opinion of the probable yield for the second and third years. (The evidence showed that raspberry plants do not produce berries the first year, that they produce a "baby" crop the second year, which is approximately one-half as large as a mature crop, and that they produce their first mature crop the third year.) These witnesses all said the production should be between 1 1/2 and 2 tons per acre the second year and should be at least 4 tons the third year. Witnesses also testified to the prevailing prices in these years.

It is the plaintiff's contention that these opinions, which were not contradicted by any experts of the defendant, established beyond cavil its right to recover lost profits for a baby crop the second year and a mature crop the third year.

While it has no bearing on our disposition of this appeal, we think for clarity's sake that we should remark that one of the plaintiff's witnesses testified to the obvious fact that the loss would not amount to a mature crop plus a baby crop but would equal only one mature crop. This is so, of course, because the plaintiff lost only 1 year of production. It dug up the plants in the fall of the year in which they were planted and planted new plants the following spring. Thus, in the year in which it would have had a mature crop, it had a baby crop. This baby crop offset the baby crop lost in the second year, leaving a total loss of only one mature crop. Thus the theory of the plaintiff advanced in its brief, that it lost profits on one baby crop as well as one mature crop, is incorrect.
[ 73 Wn.2d 150 ]

The question remains whether the trial court should have granted judgment for the amount of profits which the plaintiff's experts testified would have been realized on one full crop. While there was no witness who disputed the testimony of the plaintiff's witnesses concerning the probable yield, if the facts were as stated in the hypothetical, there was a strong contention by the defendant, exemplified in its cross-examination of witnesses who testified about the flood, that the flood would probably have disturbed the plants (which would have been 1 year old, approximately, at the time it occurred), and would in fact have washed out 7 acres. The evidence was that 7 acres of land planted in the spring of 1964 were washed out completely. Officers of the plaintiff stated that, in their opinion, if the plants which were in the ground had been a year older, this would not have occurred. The defendant, however, brought out the weaknesses of this testimony on cross-examination. No disinterested expert testified on this matter. It was within the province of the trial court to accept or reject this interested testimony, and the court was not convinced, on the showing made by the plaintiff, that the plants would not have been damaged by the flood.

[1] Where lost profits are recoverable, the amount of such loss must be established with reasonable certainty. Larsen v. Walton Plywood Co.,65 Wn.2d 1, 390 P.2d 677, 396 P.2d 879 (1964). 25 C.J.S. Damages § 41 (1966).

The trial court was not convinced that the crop would necessarily have matured had it been of the Willamette variety and had it been left in the ground. The trial court was not obliged to accept the opinions of the plaintiff's officers that the flood would not have uprooted and destroyed the plants.

Seven acres of plants which replaced the Puyallup plants were in fact washed out completely, and there was no evidence as to what percentage of the plants on the remaining 10 acres survived the flood, or that plants of the Willamette variety which had been planted for 1 year survived the flood in a similar area.

It is true that, as the plaintiff points out, the trial court found as fact that the plaintiff did lose substantial profits.
[ 73 Wn.2d 151 ]

And it is also true that, in the case of Gilmartin v. Stevens Inv. Co.,43 Wn.2d 289, 261 P.2d 73 (1953), we said that the "standard of reasonable certainty" is concerned more with the fact of damage than with the extent or amount of damage. That, of course, was not a case involving consequential damages, and this court pointed out that the standard of reasonable certainty has its most appropriate application in such cases. But conceding that the damages do not have to be proved with exact certainty, nevertheless the rule is that the plaintiff must produce the best evidence available and it must be sufficient to afford a reasonable basis for estimating his loss before he will be in a position to demand that the court fix the amount of his damages. Dunseath v. Hallauer,41 Wn.2d 895, 253 P.2d 408 (1953). If the plaintiff produced the best evidence available, that fact is not pointed out in the brief nor in the record.

The trial court also grounded its refusal to award damages for lost profits on the plaintiff's failure to offer any evidence of what the profits would have been had the Puyallup plants been left in the ground and allowed to mature. The Nakanishi case, relied upon by the plaintiff as authority for his right to recover lost profits, did not concern a perennial crop. In that case, the seed sold by the defendant were left in the ground and the plants were allowed to mature and the crop had a salvage value. If the measure of damages applied in that case were applied here, it would be necessary to show the total market value of all the crops to be produced from one planting of Willamette plants,2 as well as the value of all the crops which would have been produced had the Puyallup plants been left in the ground. There was no attempt to present such evidence and there was no evidence that the Puyallup plants were worthless.

[2] The plaintiff's theory is that, inasmuch as it was justified in removing the Puyallup plants from the ground before they bore fruit, in computing the amount of damage, profits which might have been realized had they been allowed
[ 73 Wn.2d 152 ]

to mature should not be deducted from the profits which would probably have been realized if the plants had been of the Willamette variety. It cites no authority in support of this theory, and we will not presume that such authority exists. In re Cassel,63 Wn.2d 751, 388 P.2d 952 (1964).

[3] Since the plants were destroyed by the plaintiff during their first year of life (concededly justifiably), the situation here is analogous to a case where perennial plants are destroyed by the defendant. If, as here, there is no mature or maturing crop at the time of the destruction and only the plants are destroyed, the measure of damages is the difference between the value of the land with the perennial plants (in a case of this kind, the value of the land had the plants growing on it been those contracted for, that is, the Willamette variety) growing on it and the value immediately after the destruction, or the cost of restoration plus the rental value. 21 Am.Jur.2d Crops § 80 (1965). See 175 A.L.R. 203-04, 214 (1948). Since the plaintiff did not offer evidence as to the reduced market value of the land, the trial court properly applied the latter measure of damages.

We need not decide whether the trial court was correct in its statement that lost profits are inevitably speculative where perennial crops are involved. It is enough to say that it was justified in finding that they were too speculative in this case.
The judgment is affirmed.
FINLEY, C.J., HILL and HALE, JJ., and LANGENBACH, J. Pro Tem., concur.
June 17, 1968. Petition for rehearing denied.

Footnotes
* Reported in 437 P.2d 178.
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1. However, the plaintiff became convinced that the plants sold to him were not Willamette plants when they began to show signs of mildew. The evidence was that this was a reasonable assumption.
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2. There was evidence that the productive life of raspberry plants is from 6 to 10 years.
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_____________________________________________________________________

NAKANISHI v. FOSTER
64 Wn.2d 647 (1964)
393 P.2d 635
FRANK S. NAKANISHI, Appellant,
v.
HARRY FOSTER et al., Respondents.
STEPHEN F. LONE et al., Appellants,
v.
HARRY FOSTER et al., Respondents.
FRANK S. NAKANISHI, Appellant,
v.
RAYMOND W. GILL et al., Respondents.*
No. 36670.
The Supreme Court of Washington, Department Two.

June 25, 1964.
Koenigsberg, Brown & Sinsheimer and William W. Brown, for appellants.
Hugh A. McClure (of Brethorst, Fowler, Bateman, Reed & McClure), for respondent Foster.
Flanders, Flanders & Trolson, for respondent Waldo Rohnert Company.
Knapp & Knapp, for respondents Gill et al.




[ 64 Wn.2d 649 ]

DENNEY, J.†
Three cases were consolidated for trial and on appeal. In each case the plaintiff sought damages for breach of contract, breach of warranty and negligence in the sale of lettuce seed.

Plaintiffs operated truck farms near Renton and Auburn, Washington. Plaintiff Nakanishi ordered a pure strain of lettuce seed known as "Great Lakes R-200" from defendants Raymond W. Gill, Cornelius P. Miller and Helen G. Miller, seed distributors, doing business in Portland, Oregon, as Gill Bros. Seed Company (hereinafter called Gill). Plaintiff Nakanishi placed another order for the same variety of seed with defendant Harry Foster, a seed distributor, doing business in Seattle as J.W. Dunn & Co. (hereinafter called Dunn). Plaintiffs Stephen F. Lone and Frank X. Lone, doing business as Lone Brothers, ordered the same variety of seed from Dunn. Both Dunn and Gill purchased the Great Lakes R-200 seed from defendant Waldo Rohnert Company (hereinafter called Rohnert), a California corporation whose principal place of business is Hollister, California. Rohnert is engaged in producing, processing and selling wholesale vegetable seed to seed dealers.

Rohnert delivered to Dunn and Gill a spurious mixture of seed containing some Great Lakes R-200, but in a larger part a variety known as "Imperial 101" which is adapted to use in hot and arid climates. The seed delivered to Dunn and Gill was invoiced as Great Lakes R-200 and the sacks containing the seed were labeled in the same manner. The spurious seed was, in turn, sold to plaintiffs in sacks labeled by Dunn and Gill as Great Lakes R-200.

An inspection of the seed would not reveal that it was spurious and mislabeled. Plaintiffs planted the seed. The mistake became apparent 2 weeks prior to harvest when about 75 per cent of the crop would not head out but went to seed, and was not marketable.

Rohnert's letterheads, invoices and contracts with Dunn and Gill contained language disclaiming all warranty except
[ 64 Wn.2d 650 ]

that the seeds "are as described in the container to the extent of the purchase price." The tabs and labels attached to the sacks of seed delivered by Rohnert to Dunn and Gill read as follows:

"LETTUCE — New York Types
"Great Lakes, R. Strain, No. 200

"The Waldo Rohnert Company warrants to the extent of the purchase price that seeds sold are as described on the container, within recognized tolerances. Seller gives no other or further warranty, express or implied.

"WALDO ROHNERT CO. Wholesale Seed Growers
"Gilroy — California"

In filling Nakanishi's order, Gill made disclaimers of warranty on order blanks, invoices, tags and labels in similar language.

Dunn made disclaimers on its orders and invoices in the following language:

"Because conditions of use that are of critical importance are beyond our control, J.W. Dunn & Company makes no representation or warrant concerning the material described herein, and the buyer agrees that none shall be implied by law, except that the materials shall conform to the chemical description on the label."

Dunn's tags and labels attached to bags of seed delivered to plaintiffs read as follows:

"We exercise great care to have all seeds, bulbs, nursery stock, roots or plants pure and reliable, but give no warrant, expressed or implied in any respect, and will not be responsible for the crop. If not accepted on these terms, they must be returned at once."

During trial to a jury, the trial court resolved all issues of liability as a matter of law by instructing the jury that Dunn and Gill were liable to the plaintiffs and that Rohnert, in turn, was liable over to Dunn and Gill. The issue of damages was submitted to the jury, which brought in a verdict of $10,522.50 for Nakanishi against Dunn and in favor of Dunn over against Rohnert in the same amount. Nakanishi's verdict against Gill and by Gill over against
[ 64 Wn.2d 651 ]

Rohnert was $6,296.25. Lone Brothers' verdict against Dunn and by Dunn over against Rohnert was $6,900.1

After hearing argument on motion for new trial, the trial court entered the following order:

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED That a new trial be granted with respect to the consolidated actions on the basis that error in law was committed by the Court in instructing the jury to find for the plaintiff against the seed distributors instead of in favor of the plaintiff against the Rohnert Company, and in withdrawing from the jury's consideration whether the defendants, Harry Foster and Raymond W. Gill, should be dismissed from the case. A new trial is also ordered on the ground of excessive damages, resulting from passion or prejudice."

Plaintiffs appeal from this order and first contend that Dunn and Gill are liable as a matter of law for breach of contract in supplying a variety of seed different from that ordered, that any disclaimers of warranty came too late to become effective and Dunn and Gill cannot rely on them. The trial judge at first so ruled in submitting the case to the jury. This theory has been followed by several courts in this country. Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N.E. 1083; Corneli Seed Co. v. Ferguson,64 So.2d 162 (Fla. 1953); Rocky Mountain Seed Co. v. Knorr, 92 Colo. 320, 20 P.2d 304; Smith v. Oscar H. Will & Co., 51 N.D. 357, 199 N.W. 861; Ward v. Valker, 44 N.D. 598, 176 N.W. 129; Phelps v. Grand Rapids Growers, Inc.,341 Mich. 62, 67 N.W.2d 59; Diepeveen v. Larry Vogt, Inc., 27 N.J. Super Ct. 254, 99 A.2d 329.

Many courts, including this one, have held that the contract of sale is not complete until delivery of the seed and the buyer accepts the disclaimers of warranty as a part of the contract of sale, and this is true even though the product is not true to name or label. Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562; Hall v. Mosteller,245 S.W.2d 338 (Tex. Civ. App.); Couts v. Sperry Flour Co., 85 Cal.App. 156, 259 Pac. 108; William A. Davis Co. v. Bertrand
[ 64 Wn.2d 652 ]

Seed Co., 94 Cal.App. 281, 271 Pac. 123; Hoover v. Utah Nursery Co., 79 Utah. 12, 7 P.2d 270; Gilbert v. Reuter Seed Co., Inc.,80 So.2d 567 (La. 1955); Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 132 N.W. 902; Ross v. Northrup, King & Co., 156 Wis. 327, 144 N.W. 1124; Kennedy v. Cornhusker Hybrid Co., 146 Neb. 230, 19 N.W.2d 51, 160 A.L.R. 351; Lumbrazo v. Woodruff, 256 N.Y. 92, 175 N.E. 525, 75 A.L.R. 1017; Kibbe v. Woodruff, 94 Conn. 443, 109 Atl. 169; Herrera v. Johnson,140 Cal.App.2d 822, 295 P.2d 963; Seattle Seed Co. v. Fujimori, 79 Wn. 123, 139 Pac. 866; Jolly v. C.E. Blackwell & Co., 122 Wn. 620, 211 Pac. 748.

The case of Larson v. Inland Seed Co., 143 Wn. 557, 568, 255 Pac. 919, 62 A.L.R. 444, involved a seed supplier who filled an order for spring rye seed by shipping fall rye seed with printed tag attached to the bag disclaiming express and implied warranty as to description and other matters. This court held the supplier not liable for breach of implied warranty in failure of crop. The court said:

"Some contention is made in behalf of Larson rested upon the theory that the disclaimer of warranty was by the feed mills brought to his attention too late; that is, after the making of his contract for the purchase of the spring rye, invoking the law as announced in Edgar v. Breck & Sons Corporation, 172 Mass. 581, 52 N.E. 1083 [citing other cases]; holding, in substance, that a disclaimer of warranty made after the making of a sale contract, complete in itself, will not avail the vendor to relieve him from warranties, express or implied, embodied therein.... Larson finally simultaneously acquiesced in the sale contract between him and the feed mills, and in the manner of its performance, when he received the shipment of the rye at Loon Lake. That was, it seems to us, under the circumstances here shown, the ultimate making of the sale contract...."

In the case of Norway v. Root,58 Wn.2d 96, 361 P.2d 162, this court indicated it would closely examine the validity of disclaimers of implied warranties. That case involved the standard sale contracts of automobiles where the manufacturer and dealer expressly limit liability to replacement of defective parts. Such disclaimers were held
[ 64 Wn.2d 653 ]

to be unconscionable and against public policy where the defective part resulted in injury to the purchaser of the automobile, in the case of Henningsen v. Bloomfield Motors, Inc.,32 N.J. 358, 161 A.2d 69.

[1] In the sale of seed, the dealer usually has no practical way to determine whether or not seed delivered by a wholesaler or processor is pure and according to label. The price of seed is small in comparison to the amount of consequential damage to the farmer in a failure of crop. Under these circumstances, the parties are left free to contract in making and accepting disclaimer of implied warranty.

This freedom to contract is confirmed by the Uniform Sales Act, RCW 63.04.720, which reads:

"Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale."

Numerous cases in this state hold there can be no recovery for breach of implied warranty when the seller expressly disclaims such warranty. McInnis & Co., Inc. v. Western Tractor & Equip. Co.,63 Wn.2d 652, 388 P.2d 562; McDonald Credit Ser., Inc. v. Church,49 Wn.2d 400, 301 P.2d 1082; Williamson v. Irwin,44 Wn.2d 373, 267 P.2d 702; Lent v. McIntosh, 29 Wn.2d 216, 186 P.2d 626; Gibson v. California Spray-Chemical Corp., 29 Wn.2d 611, 188 P.2d 316; Jones v. Mallon, 3 Wn.2d 382, 101 P.2d 332; Crandall Engineering Co. v. Winslow Marine R. & Shipbuilding Co., 188 Wn. 1, 61 P.2d 136, 106 A.L.R. 1457; Marks v. Kucich, 181 Wn. 73, 42 P.2d 16.

Absent proof of negligence of the distributor (and there was none here), the purchaser of seed may, by acceptance of a disclaimer of implied warranty, absolve the merchant from liability for consequential damage in the delivery of a variety of seed different from that ordered.

[2] Contention is made that no contract of sale containing
[ 64 Wn.2d 654 ]

a disclaimer of warranty was signed by plaintiffs and, further, that plaintiffs did not read the invoices and tags. However, plaintiffs had been doing business with Dunn and Gill for more than 15 years, during which time tags with the printed disclaimer of warranty were attached to all bags of seed and appeared on all orders and invoices, thus proving a custom in the sale of seed between plaintiffs and Dunn and Gill.

In Gibson v. California Spray-Chemical Corp., 29 Wn.2d 611, 621, 188 P.2d 316, we said:

"The fact that he did not read the statement of disclaimer, if such is the fact, would not increase the liability of the company beyond what it would be had he read it. Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530; In re Stone's Estate, 272 N.Y. 121, 5 N.E.2d 61; Kennedy v. Cornhusker Hybrid Co., supra [146 Neb. 230, 19 N.W.2d 51]; 9 Wigmore on Evidence (3d ed.) 43, § 2415."

The case of VanVliet v. Washington Nursery Co., 167 Wn. 115, 8 P.2d 961, is distinguishable because the seller's only disclaimer of warranty appeared on a written order which purchaser claimed was not signed or delivered. This court held that a jury verdict for the purchaser resolved the issue as to whether or not the disclaimer was ever disclosed to the purchaser.

Contention is made by plaintiffs that Dunn and Gill waived any right to rely on the disclaimers of warranty because of negotiations between the parties during which Dunn and Gill informed plaintiffs that Rohnert would participate in "some adjustments needed and would do what is the right thing to do." Nothing came of the negotiations. Dunn and Gill no doubt desired to satisfy valued customers and aid in making an adjustment through Rohnert but they did not, by their conduct, intentionally waive the defense of disclaimer of warranty by failing to mention it to the plaintiffs.

[3] There can be no estoppel. Plaintiffs were not led to act or to refrain from taking action to their detriment. Brear v. Washington State Highway Comm.,63 Wn.2d 815, 389 P.2d 276; O'Connor v. Tesdale, 34 Wn.2d 259,
[ 64 Wn.2d 655 ]

209 P.2d 274. Delay in institution of this litigation alone is not sufficient to successfully invoke the doctrine of estoppel or waiver.

We conclude that the disclaimers of warranty were effective to absolve Dunn and Gill of liability.
The trial court found in his order granting a new trial that verdicts for plaintiffs should have been directed against Rohnert as to liability on the ground that Rohnert's negligence had been established as a matter of law. We agree.

[4] In determining the liability of Rohnert to plaintiffs, we are not concerned with the disclaimers of warranty by Rohnert or Dunn and Gill. Plaintiffs made no contract of sale with Rohnert nor did the bags of seed delivered to plaintiffs bear any disclaimer of warranty by Rohnert. A disclaimer of warranty does not run with the thing itself. The case of Jolly v. C.E. Blackwell & Co., 122 Wn. 620, 624, 211 Pac. 748, has this to say:

"... And since a specific warranty as to personal property cannot run with the thing itself, we see no reason why a disclaimer of warranty should run with the thing."

Laws of 1955, chapter 233, § 6, p. 944, in effect in 1958 and 1959, reads in part as follows:

"Labels for vegetable seeds shall give:

"(1) The name of the kind and variety of the seed;"
Section 7 of the same act provides in part:

"It shall be unlawful to sell, offer or expose for sale any agricultural or vegetable seed for seeding purposes within this state:
"...
"(2) Not labeled as required herein, or having a false or misleading label; ..."2, 3
[ 64 Wn.2d 656 ]

[5] This statute was enacted for the protection of the farmer. Rohnert's failure to comply in selling mislabeled seed in this state was negligence per se.

Five farmers, other than the plaintiffs, ordered Great Lakes R-200 from Dunn and Gill in 1959, all of whom had the same results as plaintiffs in failure of crop. Neither Dunn nor Gill had ever carried Imperial 101, the spurious seed. Unimpeached testimony showed beyond question that plaintiffs' orders were filled directly from the bags of seed delivered by Rohnert. Rohnert's letters to Dunn and Gill contained admissions of fault. Rohnert sent an agent to this state to investigate plaintiffs' complaint and in connection with such investigation, admitted that Rohnert had "goofed some place."

Rohnert offered no explanation except that it did not know how it happened.

It was reasonably foreseeable by Rohnert that use of the spurious and mislabeled seed would create a risk to any farmer who used the seed for the purpose for which it was intended. Rohnert is charged with knowledge that the retailer had no practical method of distinguishing between Great Lakes R-200 and Imperial 101 and must have anticipated that the retailer would use the same label in sale to farmers.

The proof that Rohnert was negligent per se in selling seed having a false or misleading label with no explanation of how the mixture of the varieties of seed could have occurred other than by negligence, together with the undisputed proof tracing the spurious seed to plaintiffs, lead irresistibly to the conclusion that a reasonable mind must find that Rohnert was negligent, which was the proximate cause of plaintiffs' damage.

There is a growing number of exceptions to the doctrine that the manufacturer or processor cannot be reached by the consumer for consequential damage absent proof of
[ 64 Wn.2d 657 ]

privity of contract. Freeman v. Navarre,47 Wn.2d 760, 289 P.2d 1015; Dimoff v. Ernie Majer, Inc.,55 Wn.2d 385, 347 P.2d 1056.

The case of Wise v. Hayes,58 Wn.2d 106, 109, 361 P.2d 171, requires special consideration. Plaintiff in that action sought consequential damages against the manufacturer in the use of an orchard spray delivered in mislabeled drums. In discussing the liability of the manufacturer, where the product was sold by one of its distributors, we said:

"... The rule that, if there is no contractual privity, there can be no warranty, has three exceptions:

(1) Where the article causing the injury is of a noxious or dangerous nature,

(2) where fraud or deceit has been shown on the part of the offending party, or

(3) where the manufacturer has been negligent in some respect with reference to the sale or construction of an item not imminently dangerous. Dimoff v. Ernie Majer, Inc.,55 Wn.2d 385, 389, 347 P.2d 1056 (1960).

"Respondent's pleadings were predicated upon the third exception to the rule.... Liability follows for violation of the duty that the appellant owed to the purchaser to label properly the products it offered for sale."

See, also, Morrow v. Caloric Appliance Corp.,372 S.W.2d 41 (Mo. 1963).

The case of Hoskins v. Jackson Grain Co.,63 So.2d 514, 515 (Fla. 1953), involved facts and a statute almost identical with the facts and statute here. In holding the wholesaler liable to the consumer for consequential damage for varietal difference between seed represented for sale and seed actually purchased, the court said:

"Where one violates a penal statute imposing upon him a duty designed to protect another he is negligent as a matter of law, therefore responsible for such damage as is proximately caused by his negligence. And, obviously, if a person negligently injures another liability cannot be affected by the fact that the two were not acquainted, or had not dealt directly with each other.
"...
"We think that when seed bearing a label showing a certain kind or variety are sold, and upon planting yield produce of a different kind or variety the wholesaler is
[ 64 Wn.2d 658 ]

rendered liable for the negligence growing out of the `false and misleading labeling.'
"...
"It seems to us it would be utterly unsound and unfair to hold that if a planter bought seed of a certain variety knowing that variety to be best suited for the soil of his farm and the climatic conditions prevailing there, and found later to his sorrow that a different variety in deficient amount or of poor quality was produced from seed having the same appearance as that he thought he had bought, he could not recover from the one who knew the origin and history of the seed, simply because the farmer got them direct from retailer who knew no more about them than he."

[6] Some confusion may have arisen because of the necessity to discuss breach of warranty, breach of contract, and negligence in deciding some cases. We prefer to base our decision in this case on the broader ground that a manufacturer or processor who offers goods on the market to remote users must use reasonable care where there is a foreseeable risk of harm to the consumer if reasonable care is not used.

Rohnert's contention that the manufacturer or processor must answer only for consequential injury to person or destruction of property is not sound in the light of the decisions in Freeman v. Navarre, supra, involving cost of repair of a heating and ventilating system, and Wise v. Hayes, supra, involving damage for loss of crop.

The trial court granted a new trial on all issues because of his belief that the form of verdicts submitted to the jury did not permit entry of judgments for plaintiffs directly against Rohnert. We find no impediment in doing so, in view of our holding that plaintiffs are entitled to recover against Rohnert as a matter of law. The measure of damage was plaintiffs' loss of profit in the 1959 lettuce crop due to spurious seed. Damage was the same, regardless of who was responsible for the loss, Rohnert, Dunn and Gill, or both.

[7] Rohnert challenged the jurisdiction of the courts of this state. Rohnert solicited orders through salesmen,
[ 64 Wn.2d 659 ]

which resulted in a continuous flow of business into this state. Rohnert sent agents into this state to contact farmers, relating to complaints. It contracted with an agent on a commission basis to procure supplies of seed from growers in eastern Washington. This was sufficient to warrant the trial court's conclusion that Rohnert was engaged in business in this state of sufficient moment to make it subject to the jurisdiction of the courts of this state under the tests announced in International Shoe Co. v. State, 22 Wn.2d 146, 154 P.2d 801, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154.

[8] In granting the motion for new trial on the "ground of excessive damages resulting from passion or prejudice", the trial court gave no reason for so doing other than his conclusion. Under Rule of Pleading, Practice and Procedure 59.04W, we cannot assume that he was influenced by conditions existing or circumstances occurring during the trial which could not be made a part of the record and we must assume that the justification, if any, for the action taken is to be found in the record. Johnson v. Howard,45 Wn.2d 433, 275 P.2d 736; Greenwood v. Bogue,53 Wn.2d 795, 337 P.2d 708; Durkan v. Leicester,62 Wn.2d 77, 381 P.2d 127.

The jury was correctly instructed on the measure of damage as the market value of crops which would have been raised that season had the seed been as ordered, less the expense of raising, harvesting, and marketing the crop, together with the salvage of the crop made by the plaintiffs through the sale of any part of the crop.

Plaintiffs offered substantial evidence to prove all of these factors. Respondents offered no testimony questioning the accuracy or reasonableness of the evidence produced by plaintiffs. If plaintiffs' evidence as to crop, price and demand for local lettuce in 1959 was erroneous, testimony to the contrary was readily available to respondents. They offered none. Respondents chose to rely entirely upon income tax returns of plaintiff Nakanishi for 4 years previous to 1959. Such returns showed a loss in some years and a profit in other years, much less than the damages
[ 64 Wn.2d 660 ]

claimed. Substantial evidence was adduced, however, that a truck farmer may incur a loss one year and a profit the next and that the price and demand for lettuce fluctuates from year to year and, in turn, the income of the farmer fluctuates in equal degree. The jury evidently believed that 1959 was a good year for the local lettuce grower. The evidence justifies this conclusion.

Some suggestion is made by respondents that the trial judge may have been influenced by questions propounded to a juror, who was engaged in the insurance business, relative to whether or not such juror would be influenced because of her occupation. Insurance was also mentioned inadvertently by a witness in testifying to a conversation with one of Rohnert's agents. In both instances, motions for mistrial were denied. If the trial court was influenced by these incidents, he could have said so or granted a new trial on the ground of "misconduct of prevailing party." In the absence of a finding, we must assume that the trial court did not regard the mention of insurance as important or controlling.
[9] The verdicts of the jury in the aggregate were about $9,000 less than the total damages testified to by plaintiffs, and were well within the evidence. We must find that there was an abuse of discretion in granting the motion for new trial for excessive damages. Coleman v. George,62 Wn.2d 840, 384 P.2d 871; Johnson v. Howard, supra; Greenwood v. Bogue, supra.

The judgment of the trial court is reversed with instructions to enter judgment as follows:

1. In King County Cause No. 560036, that defendant Harry Foster, doing business as J.W. Dunn & Company, be dismissed from the action and that plaintiff Frank S. Nakanishi recover judgment against Waldo Rohnert Company in the sum of $10,522.50;

2. In King County Cause No. 564984, that Harry Foster, doing business as J.W. Dunn & Company, be dismissed from the action and that Stephen F. Lone and Frank X. Lone, doing business as Lone Brothers, have judgment against Waldo Rohnert Company in the sum of $6,900;
[ 64 Wn.2d 661 ]

3. In King County Cause No. 560035, that Raymond W. Gill, Cornelius P. Miller and Helen G. Miller, partners, doing business as Gill Bros. Seed Company, be dismissed from the action and that the plaintiff Frank S. Nakanishi recover against Waldo Rohnert Company in the sum of $6,296.25.

OTT, C.J., DONWORTH, FINLEY, and WEAVER, JJ., concur.

August 27, 1964. Petition for rehearing denied.

Footnotes

* Reported in 393 P.2d 635.
Back to Reference

† Judge Denney is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.
Back to Reference

1. At the commencement of the trial, plaintiffs announced that they were not seeking return of purchase price of the seed.
Back to Reference

2. These sections of the laws of 1955 were re-enacted in the Agricultural and Marketing Code of 1961 (Laws of 1961, chapter 11, p. 140, RCW 15.48.050 and RCW 15.48.060).
Back to Reference

3. Dunn and Gill did not violate the statute. Section 30 of the same chapter (Laws of 1955, chapter 233, p. 952, now RCW 15.48.220) provides:

"No person shall be subject to the penalties of this chapter for having sold, offered for sale or exposed for sale, agricultural or vegetable seeds which were incorrectly labeled or misrepresented as to kind, variety, type, or origin and which cannot be identified by examination, if he possesses an invoice or a declaration from a seller or grower within the jurisdiction of the courts of this state, giving kind, or kind and variety, or kind and type, and origin, if required, and if he has taken such other precautions necessary to insure the identity to be that stated."
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[bsemaj]

Allyn, ET.AL. v. Boe, ET.AL., 87 Wn.App. 722-PRODUCTIVE TREE VALUE-MMJ

--------------------------------------------------------------------------------

COURT OF APPEALS OF WASHINGTON, DIVISION TWO

87 Wn. App. 722; 943 P.2d 364; 1997 Wash. App. LEXIS 1491

September 5, 1997, Filed

SUBSEQUENT HISTORY: Petition for Review Denied May 5, 1998, Reported at: 134 Wn.2d 1020, 958 P.2d 315, 1998 Wash. LEXIS 366.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant property owners sought review of the decision of the Superior Court of Thurston County (Washington), which ordered a new trial in a timber trespass action because of juror misconduct and the failure to instruct the jury that damages could not exceed the underlying value of the property. Appellee neighbors cross-appealed contending that the discovery rule did not apply, and thus the action was barred by the statute of limitations.

OVERVIEW: In a timber trespass action, the jury had awarded damages for harvested trees in an amount more than double the value of the underlying property in favor of property owners. The trial court ordered a new trial because of juror misconduct and improper calculation of damages. The court held that the trial court did not abuse its discretion in ordering a new trial on this ground because a juror who concealed bias during voir dire committed misconduct. Furthermore, although it declined to adopt a rule that damages in a timber trespass cannot exceed the value of the underlying property, the court held that under the formula presented to the jury, the damages for lost trees had to be reasonably related to the value of the land. The court found no abuse of discretion on the damages findings because the trial court's ruling that damages could not exceed the value of the land necessarily implied a finding that the damages awarded did not bear such a reasonable relationship. In addition, the court rejected neighbor's cross-appeal holding that the action was not barred by the statute of limitations because the discovery rule applied to timber trespass actions.

OUTCOME: The court affirmed the judgment of the trial court granting a new trial.

CORE TERMS: trespass, timber, juror, new trial, misconduct, discovery rule, juror misconduct, restoration, acres, market value, emotional distress, voir dire, replacement, land's value, cause of action, statute of limitations, expert testimony, emotional, landowner, cutting, deliberations, formula, bias, injured party, cut down, prejudicial, restoring, disclose, inhere, treble



Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
HN1Go to the description of this Headnote. The granting of a new trial motion is a matter within the discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of that discretion. When such an order, however, is predicated upon rulings of law, no element of discretion is present.

Civil Procedure > Trials > Jury Trials > Jurors > Misconduct
Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
Criminal Law & Procedure > Juries & Jurors > Voir Dire > Appellate Review
HN2Go to the description of this Headnote. A juror's misrepresentation or failure to speak when called upon during voir dire regarding a material fact can amount to juror misconduct. When there is strong evidence to the effect that a juror was biased when he entered upon the case and swore falsely on voir dire, concealing his bias, the trial court will not abuse its discretion in granting a motion for new trial. The misconduct consists of his deception of the court and counsel as to his incompetence as an impartial juror. Furthermore, a juror who brings to the jury deliberations information outside the record commits misconduct.

Civil Procedure > Trials > Jury Trials > General Overview
Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
HN3Go to the description of this Headnote. The court must make an objective inquiry into whether the extraneous evidence could have affected the jury's verdict, not a subjective inquiry into the actual effect. Whether such misconduct occurred and whether it was prejudicial are matters within the sound discretion of the trial court, who saw both the witnesses and the trial proceedings, and had in mind the evidence. Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict.

Civil Procedure > Trials > Jury Trials > Jurors > Misconduct
Civil Procedure > Trials > Jury Trials > Jurors > Selection > General Overview
Civil Procedure > Trials > Jury Trials > Jury Instructions > General Overview
HN4Go to the description of this Headnote. The thought processes of jurors inhere in the verdict and cannot be used to impeach it. Even a jury's failure to follow instructions or a misunderstanding of the instructions inheres in the verdict. Juror affidavits, therefore, may not be used to challenge the thought processes involved in reaching a verdict.

Governments > Courts > Common Law
Governments > Legislation > Statutory Remedies & Rights
Torts > Premises Liability & Property > Trespass > Remedies > General Overview
HN5Go to the description of this Headnote. A landowner suffering a timber trespass may pursue either common law remedies or statutory remedies. At common law, damages are measured by the difference in land value before and after the trespass. Under Wash. Rev. Code § 64.12.030, the measure of damages may vary. When the damage is to "timber," the landowner recovers the stumpage value of the trees, together with other damages that are the normal consequence of a logging operation. When the damage is to a "productive tree," such as a fruit tree, the proper measure is the tree's production value.

Torts > Damages > Compensatory Damages > Property Damage > Award Calculations
HN6Go to the description of this Headnote. The recovery of restoration costs in excess of a property's value is permitted if there is a reason personal to the owner for restoring the original condition.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Compensatory Damages > Property Damage > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > Award Calculations
HN7Go to the description of this Headnote. Although timber trespass damages are not limited to the fair market value of the underlying property, such damages must still be reasonable in relation to the property value. Courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Tolling > Discovery Rule
Governments > Legislation > Statutes of Limitations > Time Limitations
Torts > Procedure > Statutes of Limitations > General Overview
HN8Go to the description of this Headnote. Under the discovery rule, the cause of action accrues, and the statute of limitation begins to run, when the plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. The statute does not begin to run until the plaintiff knows or with reasonable diligence should know that the defendant was the responsible party.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Tolling > Discovery Rule
Real Property Law > Torts > Trespass to Real Property
Torts > Procedure > Statutes of Limitations > General Overview
HN9Go to the description of this Headnote. The discovery rule applies to timber trespass actions at least where, the defendant conceals his wrongdoing.

Torts > Damages > Compensatory Damages > Pain & Suffering > Emotional & Mental Distress > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > General Overview
HN10Go to the description of this Headnote. Because extraordinary losses in a timber trespass action are recoverable if properly segregated, a landowner can recover for emotional distress damages.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence
Evidence > Testimony > Experts > Admissibility
HN11Go to the description of this Headnote. The trial court has discretion on whether to admit expert testimony; its discretion will only be overturned for an abuse of that discretion.

Hide Headnotes / Syllabus

SUMMARY: Nature of Action: Action for damages for timber trespass.

Superior Court: After directing a verdict on liability in favor of the plaintiffs, and after the jury had determined the plaintiffs' tree loss and emotional distress damages and found that the trespass was willful, the Superior Court for Thurston County, No. 90-2-02437-4, Daniel J. Berschauer, J., on March 29, 1995, granted the defendants' motion for a new trial.

Court of Appeals: Holding that the trial court did not abuse its discretion in granting a new trial based on the misconduct of a juror in concealing bias, that restoration cost damages could be awarded for the timber trespass in an amount greater than the value of the underlying land so long as the damages are reasonably related to the land's value, and that the action was subject to the discovery rule and was not time barred, the court affirms the decision of the trial court.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] New Trial -- Review -- Questions of Law A trial court's grant of a new trial on the basis of a legal rather than factual issue is reviewed under the error of law standard.

WA[2][2] Jury -- Misconduct -- Failure To Disclose Information -- Misrepresentation -- Material Fact A juror's misrepresentation or failure to speak regarding a material issue of fact when called upon during voir dire constitutes juror misconduct that may warrant a new trial.

WA[3][3] Jury -- Selection -- Examination -- Failure To Disclose Information -- Bias A juror's failure during voir dire to disclose information regarding a material issue of fact that would reveal the juror's bias constitutes misconduct that may warrant a new trial.

WA[4][4] Jury -- Misconduct -- Extraneous Evidence -- Interjection Into Deliberations -- In General A juror commits misconduct by bringing information outside the record into the jury deliberations.

WA[5][5] Jury -- Misconduct -- New Trial -- Prejudice -- Necessity Juror misconduct warrants a new trial if the misconduct is prejudicial.

WA[6][6] Jury -- Misconduct -- Prejudice -- Objective or Subjective Test Whether juror misconduct is prejudicial to a party is determined by an objective test that asks whether the misconduct could have affected the jury's verdict. Doubts are resolved against the verdict.

WA[7][7] Jury -- Misconduct -- Prejudice -- Discretion of Court Whether a juror has committed misconduct and whether a juror's misconduct is prejudicial are issues addressed to the trial court's sound discretion.

WA[8][8] Jury -- Misconduct -- Review -- Standard of Review A trial court's ruling that a juror committed misconduct and that the misconduct was prejudicial is reviewed for an abuse of discretion. Discretion is not abused unless the ruling is manifestly unreasonable, is based on untenable grounds, or was made for untenable reasons.

WA[9][9] Appeal -- Assignments of Error -- Argument -- Not Raised by Parties In general, an appellate court will not consider an argument not presented by a party before the court.

WA[10][10] Trial -- Verdict -- Impeachment -- Juror's Mental Processes -- In General The thought processes of jurors inhere in the verdict and may not be used to impeach the verdict.

WA[11][11] Trespass -- Cutting of Timber -- Treble Damages -- Measure of Damages -- In General In an action under RCW 64.12.030 for timber trespass, the measure of damages depends upon the circumstances of the trespass and the nature of the vegetation injured or destroyed.

WA[12][12] Trespass -- Cutting of Timber -- Treble Damages -- Measure of Damages -- Restoration Cost -- Exceeding Value of Land -- Reasonableness In an action under RCW 64.12.030 for timber trespass, damages may be awarded, before trebling, for the cost of restoring the vegetation, even if the restoration cost exceeds the underlying value of the land, if the owner of the land has a personal reason for restoring the property as nearly as possible to its original condition and the damages are reasonable in relation to the fair market value of the land. Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass.

WA[13][13] Limitation of Actions -- Accrual of Cause -- Discovery Rule -- What Constitutes Under the discovery rule, a cause of action does not accrue until (1) the injured party discovers, or reasonably could have discovered, all of the essential elements constituting the action, and (2) the injured party knows, or with reasonable diligence should know, the identity of the party presumably responsible for the injury.

WA[14][14] Limitation of Actions -- Accrual of Cause -- Discovery Rule -- Applicability -- Knowledge of All Elements -- Concealment by Defendant The discovery rule may be applied to delay the accrual of a cause of action if the party responsible for the plaintiff's injury has concealed information from the plaintiff that would have revealed the elements of the plaintiff's cause of action.

WA[15][15] Trespass -- Cutting of Timber -- Statutory Provisions -- Right of Action -- Accrual of Cause -- Discovery Rule An action under the timber trespass statute (RCW 64.12.030) does not accrue until the injured party discovers, or reasonably could have discovered, all of the essential elements constituting timber trespass and the injured party knows, or with reasonable diligence should know, the identity of the party presumably responsible for the trespass.

WA[16][16] Trespass -- Cutting of Timber -- Treble Damages -- Additional Damages -- Emotional Distress Emotional distress damages may be awarded under the timber trespass statute (RCW 64.12.030) if they are properly segregated from the trespass damages.

WA[17][17] Evidence -- Opinion Evidence -- Expert Testimony -- Review -- Standard of Review The admission of expert testimony is reviewed for an abuse of the trial court's discretion.

WA[18][18] Evidence -- Opinion Evidence -- Expert Testimony -- Qualifications -- Failure To Challenge -- Effect A witness is qualified to give expert testimony if no challenge is raised to the witness's qualifications.

COUNSEL: Keith L. Kessler, Bradley J. Moore, Garth L. Jones, and Stritmatter Kessler Whelan Withey, for appellants.

Jon E. Cushman and Cushman Raymond & Middleton, P.S., for respondents.

JUDGES: Authored by David H. Armstrong. Concurring: Carroll C. Bridgewater. Dissenting: Elaine M. Houghton

OPINION BY: David H. Armstrong

OPINION

[*725] [**367] Armstrong, J. -- In this timber trespass action, the jury awarded damages for harvested trees in an amount more than double the value of the underlying property. The trial court ordered a new trial because of: (1) juror misconduct and (2) the court's failure to instruct the jury that damages could not exceed the underlying value of the property. The Allyns appeal. The defendants cross-appeal, contending that, because the discovery rule does not apply to timber trespass actions, the action is barred by the statute of limitations. Because a juror who conceals bias during voir dire commits misconduct, we hold that the trial court did not abuse its discretion [***2] in ordering a new trial on this ground. Furthermore, although we decline to adopt a rule that damages in a timber trespass cannot exceed the value of the underlying property, we hold that under the formula presented to the jury, the damages for lost trees must be reasonably related to the value of the land. [*726] Because the trial court's ruling that damages cannot exceed the value of the land necessarily implies a finding that the damages awarded did not bear such a reasonable relationship, we find no abuse of discretion on this ground either. Finally, we hold that the discovery rule applies to timber trespass actions and, therefore, the case was timely filed.
FACTS

The Allyn family has owned 10 acres of wooded, undeveloped property in Thurston County for more than 85 years, purposely leaving the land undeveloped. Richard and Winifred Allyn, the current owners, had planned to eventually build a retirement cabin on a small portion of the land. They currently reside in Bellevue, Washington.

Gordon Boe and Myron Struck (hereinafter "Boe") began logging their adjoining land in July 1987. While logging, they cut down 283 trees from about two acres of the Allyns' land. Boe completed the [***3] logging by September 18, 1987.

Mr. Allyn visited his property on September 12, 1989, and saw that two acres had been logged. He was very upset and reported the theft to the Sheriff's Office. Mr. Allyn suspected Boe because he saw logs on Boe's land and a neighbor told him that Boe had logged his own land in the summer of 1987. But when questioned by the police, Boe denied cutting the trees even though he knew from a survey in 1988 that he had cut some of the Allyns' trees.

Mr. Allyn then hired an attorney, a private investigator, a surveyor, and a timber expert to find out who had cut down his trees. In early October 1990, the timber expert matched a cut tree on Boe's land to a stump on the Allyns' land. Mr. Allyn then sued Boe on October 10, 1990, alleging timber trespass in violation of RCW 64.12.030, and seeking damages for the trespass and for emotional distress.

The defendants sought a dismissal, arguing that the [*727] three-year statute of limitations had run. The trial court denied the motion, finding that, under the discovery rule, the statute of limitations had not begun to run until the Allyns learned of all the elements of the claim, including who had cut the trees. The court [***4] then directed a verdict on liability in favor of the Allyns.

Boe moved to exclude all evidence that the value of the cut timber exceeded the fair market value of the entire 10 acres of land, [**368] arguing that, as a matter of law, the damages in a timber trespass case cannot exceed the fair market value of the underlying parcel of land. The trial court denied the motion.

Molly Beck, an arborist expert for the Allyns, testified on the value of the cut trees. In evaluating the loss, she rejected the cost of cure and replacement value methods because she believed these would yield an exorbitant value. Beck estimated the cost of replanting the trees, some more than two feet in diameter, in excess of $ 400,000. Beck also rejected the stumpage value method, used when evaluating timber as a commodity, because the Allyns were not growing the trees for the timber market.

Instead, Beck used the basic formula method. Under this method, the arborist determines the cost per unit of trunk cross-sectional area to purchase and plant an available replacement tree. Here, Beck used $ 27 per square inch. The total square inches of the cut tree's trunk can then be determined and the value of the tree calculated. [***5] Beck gave the example of a 21-inch diameter Douglas fir with a total calculated value of $ 9,342. This total is then reduced by factors for the location, condition, and species of the tree, resulting in a value of $ 420 for the example tree. Beck calculated the total value of all the trees cut to be $ 84,597. She determined this figure without regard to the appraised market value of the Allyns' land.

Beck conceded that the arborist's manual she used in her calculations stated that "the appraised value of a tree should usually be reasonable in relation to the value of the property in which it is situated." The manual also [*728] suggested that such value could range from seven to fifteen percent of the total value of the land. But Beck disagreed and testified that a tree's value can exceed the value of the property on which it stands.

Struck testified that the logs were sold for $ 27,269. According to Struck, about two-thirds of the trees sold came from the Allyns' 2 acres, while the other third came from the defendants' 15 acres. Donald Taylor, a real estate appraiser, testified that he appraised the Allyns' land with the trees still standing at $ 35,000. Another appraiser had valued [***6] the land at $ 27,500. A forestry management expert testified that the stumpage value of the trees was $ 16,355.

The jury awarded the Allyns $ 75,000 for the loss of trees and $ 25,000 for emotional distress. The jury also found that Boe had willfully trespassed on the Allyns' land. 1 Boe moved for a new trial. In support of the motion, Boe obtained affidavits from several jurors alleging that the following juror misconduct had occurred during deliberations: (1) one juror, a realtor, said that she could get $ 125,000 for the Allyns' land, that she knew Taylor, the defendant's real estate expert, and that he would testify to anything; (2) another juror, a retired logger, said that timber trespass damages had to be tripled and the jury then tripled its damage award. During voir dire, the realtor-juror had said that she knew Taylor, but when asked if this would prevent her from being impartial, she said nothing.

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1 Because of this finding, the trial judge would have been required to treble the $ 75,000 award to $ 225,000. RCW 64.12.030.

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[***7] Boe also renewed his argument that the court should have instructed the jury that timber trespass damages could not exceed the value of the underlying property. Finding the result an "injustice," the trial judge ordered a new trial, concluding that he should have limited damages to no more than the fair market value of the property. The judge also ruled that the realtor juror's statements amounted to misconduct and formed an alternative basis for the new trial. The trial judge, however, ruled [*729] that the statements of the retired logger juror inhered in the verdict and were not juror misconduct. The Allyns appealed and Boe cross-appealed.

ANALYSIS

A. Order Granting a New Trial

WA[1][1] HN1Go to this Headnote in the case. The granting of a new trial motion is a matter within the discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of that discretion. Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 561, [**369]
815 P.2d 798 (1991). When such an order, however, is predicated upon rulings of law, no element of discretion is present. Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676 (1989).

1. Juror Misconduct

WA[2][2] WA[3][3] WA[4][4] HN2Go to this Headnote in the case. A juror's misrepresentation or failure to speak [***8] when called upon during voir dire regarding a material fact can amount to juror misconduct. Robinson, 113 Wn.2d at 158.

When there is strong evidence to the effect that a juror was biased when he entered upon the case and swore falsely on voir dire, concealing his bias, the trial court will not abuse its discretion in granting a motion for new trial. The misconduct consists of his deception of the court and counsel as to his incompetence as an impartial juror.

Robinson, 113 Wn.2d at 158 (quoting Nelson v. Placanica, 33 Wn.2d 523, 528-29, 206 P.2d 296 (1949)). Furthermore, a juror who brings to the jury deliberations information outside the record commits misconduct. Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990); see also Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973).

WA[5][5] WA[6][6] WA[7][7] WA[8][8] HN3Go to this Headnote in the case. The court must make an objective inquiry into whether the extraneous evidence could have affected the jury's verdict, not a subjective inquiry into the actual effect. Richards, 59 Wn. App. at 273. Whether such misconduct [*730] occurred and whether it was prejudicial are matters within the sound discretion of the trial court, who saw both the [***9] witnesses and the trial proceedings, and had in mind the evidence. Richards, 59 Wn. App. at 271-72. Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict. Richards, 59 Wn. App. at 273.

In Robinson, the court held that a juror's failure to disclose his bias against California residents, and his perception of their role in the legal process, constituted juror misconduct because the plaintiff was from California. Robinson, 113 Wn.2d at 158-59. In Allison v. Department of Labor & Indus., 66 Wn.2d 263, 265, 401 P.2d 982 (1965), the court held that the trial court should have granted a new trial when a juror also failed to disclose bias during voir dire. The juror stated that, although he had appealed his workers' compensation claim three times, he could be fair and impartial. Allison, 66 Wn.2d at 264-65. Juror affidavits, however, established that during deliberations the juror said "anyone claiming against the state should get everything they can." Allison, 66 Wn.2d at 265.

Here, the juror said that she knew Taylor, but then said nothing when asked if that would prevent her from giving both sides a fair trial. During deliberations, [***10] however, the juror then attacked Taylor's credibility: "he would testify to anything." This attack was not based on what she had heard or seen in the courtroom, but rather on information outside the trial record: she "knew him." Furthermore, the statement dealt with a material issue -- the credibility of an expert on the land's value. Boe maintained throughout the trial that any claimed loss in excess of the value of the underlying property would not be reasonable. If the jury accepted the realtor juror's opinion that the property was worth $ 125,000, 2 rather than $ 35,000, an award of $ 75,000 would conform with Boe's argument. Although the juror's statement may not be as serious as those found [*731] in other cases, the trial court ruled that the statement constituted juror misconduct and, therefore, was grounds for a new trial. Because we cannot conclude that the trial court abused its discretion, we affirm the granting of a new trial based on juror misconduct. See Richards, 59 Wn. App. at 271.

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2 The juror's opinion as to the land's value inheres in the verdict. See Richards, 59 Wn. App. at 274.

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[***11] Citing Richards, the dissent concludes that Boe failed "to make the strong and affirmative [**370] showing of juror misconduct required to support a new trial." Dissenting op. at 739. In Richards, the alleged misconduct occurred when a juror, based on her medical knowledge, suggested that a mother's flu caused a child's birth defects. The trial court denied the plaintiff's motion for new trial. Finding no abuse of discretion, the Court of Appeals affirmed. The court concluded, "ultimately the determination of whether juror misconduct in interjecting evidence outside of the record affected the verdict is within the discretion of the trial court." Richards, 59 Wn. App. at 272. Here, the trial court found misconduct that affected the verdict--a decision within its sound discretion. We cannot say its decision was "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Richards, 59 Wn. App. at 271 (citing State ex. rel. Carroll Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

WA[9][9] The dissent also concludes that the realtor-juror did not conceal her opinion of Taylor because she was asked vague and open-ended questions. Dissenting op. at 739. But the Allyns never claimed [***12] on appeal that the voir dire questions were vague. They asserted only that the jury's reasoning inhered in the verdict. In general, we will not entertain arguments not presented by the parties. See In re F.D. Processing, Inc., 119 Wn.2d 452, 455-56, 832 P.2d 1303 (1992).

WA[10][10] Boe also urges us to find juror misconduct and affirm because of the retired logger juror's statement that timber trespass damages had to be tripled, which caused the jury to triple its damage award. But HN4Go to this Headnote in the case.the thought processes of jurors inhere in the verdict and cannot be [*732] used to impeach it. Johnson v. Carbon, 63 Wn. App. 294, 301, 818 P.2d 603 (1991); Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768, 818 P.2d 1337 (1991). Even a jury's failure to follow instructions or a misunderstanding of the instructions inheres in the verdict. Ayers, 117 Wn.2d at 769; Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962); Hosner v. Olympia Shingle Co., 128 Wash. 152, 155, 222 P. 466 (1924) (failure to read instructions inheres). Juror affidavits, therefore, may not be used to challenge the thought processes involved in reaching a verdict. Ayers, 117 Wn.2d at 768. Accordingly, the trial court [***13] properly denied a new trial on this alternative basis.

2. Limitation on Timber Trespass Damages

WA[11][11] The Allyns contend also that the trial court erred in ruling that it should have limited timber trespass damages, before any statutory trebling, to the fair market value of the property. HN5Go to this Headnote in the case.A landowner suffering a timber trespass may pursue either common-law remedies or statutory remedies. 3 Henriksen v. Lyons, 33 Wn. App. 123, 127, 652 P.2d 18 (1982). At common law, damages are measured by the difference in land value before and after the trespass. Henriksen, 33 Wn. App. at 127. Under the statute, the measure of damages may vary. When the damage is to "timber," the landowner recovers the "stumpage value" of the trees, together with other damages that are the normal consequence of a logging operation. Sherrell v. Selfors, 73 Wn. App. 596, 602, 871 P.2d 168 (1994).

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3 RCW 64.12.030 allows treble damages for a willful trespass.

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When the damage is to a "productive tree," such as a fruit tree, the proper measure [***14] is the tree's production value. Sparks v. Douglas County, 39 Wn. App. 714, 720, 695 P.2d 588 (1985). Lost profits may be recovered for injury to Christmas trees intended to be sold at market. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 873-74, 602 P.2d 357 (1979). For ornamental greenery on residential or recreational property, the landowner can recover restoration and replacement costs. Birchler v. Castello Land Co., [*733]
Inc. , 81 Wn. App. 603, 607, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106, 942 P.2d 968 (1997); Tatum v. R&R Cable, Inc., 30 Wn. App. 580, 583, 636 P.2d 508 (1981), overruled on other grounds by Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987). Finally, the damages may be based on the difference in the value of the land [**371] before and after the cutting. Sherrell, 73 Wn. App. at 602.

WA[12][12] None of these cases, however, addresses the question whether damages under these various methods may exceed the underlying value of the property. HN6Go to this Headnote in the case.THE RESTATEMENT ON TORTS permits the recovery of restoration costs in excess of a property's value if "there is a reason personal to the owner for restoring the original condition." RESTATEMENT (SECOND) OF TORTS § 929 cmt. [***15] b (1965); see also Heninger v. Dunn, 162 Cal. Rptr. 104, 107-08, 101 Cal. App. 3d 858 (1980). Other jurisdictions also do not limit damages to the value of the underlying property. In Samson Constr. Co. v. Brusowankin, 147 A.2d 430, 218 Md. 458 (1958), Maryland's highest court allowed reasonable restoration costs, even though greater than the land's value, if the jury found the plaintiffs had personal reasons for restoring the land as nearly as possible to its original condition. Samson, 147 A.2d at 437.

The Supreme Courts of Colorado and Alaska have adopted similar rules. See Weld County Bd. of County Comm'rs v. Slovek, 723 P.2d 1309, 1317 (Colo. 1986); G&A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1385-87 (Alaska 1974). In Weld, the Colorado court held that restoration costs, greater than the original value of the property but not unreasonable in relation to that value, were within the trial court's discretion if payment of the market value would not adequately compensate the owner for some personal reason. Weld, 723 P.2d at 1317. The Alaska court ruled that the trial court did not err in awarding reasonable restoration costs, even though these exceeded the value [***16] of the land. G&A, 517 P.2d at 1385-87.

Here, Mr. Allyn testified to the great attachment that he and his family had to the land and its trees.

The land [*734] had been left undeveloped for more than 85 years by the Allyn family. He also testified that during the Great Depression, when his family lived on the land in a small building, they refused to cut down any of the trees for firewood. Moreover, Mr. Allyn and his wife intended to retire on the land, preserving the trees. No evidence suggested that the Allyns intended to commercially harvest the trees. Finally, Mr. Allyn testified that he was very upset when he first saw the logged land.

The Allyns, therefore, demonstrated personal reasons for restoring the land to its original condition.

Accordingly, we hold here the jury could award damages, before any statutory trebling, in excess of the value of the underlying land.

But, HN7Go to this Headnote in the case.although timber trespass damages are not limited to the fair market value of the underlying property, such damages must still be reasonable in relation to the property value. See Weld, 723 P.2d at 1317; G&A, 517 P.2d at 1385-87. "Courts have stressed that only reasonable costs of replacing destroyed trees with identical [***17] or substantially similar trees may be recovered." Heninger, 162 Cal. Rptr. at 108 . Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass. Heninger, 162 Cal. Rptr. at 108-09.

The facts in Heninger are very similar to the present case. Heninger owned forested mountain land that he valued for its natural beauty. Heninger, 162 Cal. Rptr. at 106, 109. He intended to keep the land, valued at $ 179,000, unimproved. Heninger, 162 Cal. Rptr. at 106, 109. The defendants, however, bulldozed a road on the land, killing or damaging 225 trees and destroying the underbrush. Heninger, 162 Cal. Rptr. at 106. Substantially identical restoration, including the transplanting of a large number of mature trees, cost approximately $ 241,000. Heninger, 162 Cal. Rptr. at 109.

Although noting that restoration costs may exceed the value of the underlying property, the court held that this was a manifestly unreasonable expense in relation to the land's value before the trespass. Heninger, 162 Cal. Rptr. at 109.

[*735] Here, Taylor, the real estate appraiser, appraised the Allyns' full 10 acres with the trees still standing [***18] at $ 35,000. Other evidence suggested a possibly lower value -- $ 27,500. Beck, however, testified that, under the basic formula method, the loss of [**372] trees from two acres exceeded $ 84,000. 4 The $ 75,000 damage award, before trebling, for trees cut down from only 2 out of a total of 10 acres, therefore, was more than double the highest appraised value for the entire 10 acres with the trees still standing.

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4 The evidence suggested the trees from the two acres were the most valuable ones on the land.

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In addition, the jury awarded $ 25,000 for emotional distress. Such damages are allowed because "they are unique to the values and sensitivities of the property owner" and "reflect the emotional value a particular person has attached to the property." Birchler, 81 Wn. App. at 608. This rationale is similar to the rationale Beck used in choosing the basic formula, i.e., because the landowner intended to keep the trees "for sentimental, historic, functional, or aesthetic value," and his "feelings for their aesthetic [***19] and functional attributes." Because the parties have not raised the question, we do not decide whether the emotional distress damages award duplicated any part of the award for loss of the trees calculated on the basic value formula. But the close similarity of purpose of the two awards further supports the trial judge's ruling that the total award was not reasonable and amounted to an unjust result.

In conclusion, we hold that although timber trespass damages may exceed the value of the underlying property in the proper case, the damages must still be reasonable in relation to the value of the property. Heninger, 162 Cal. Rptr. at 109; see also Samson, 147 A.2d at 437; Weld, 723 P.2d at 1317; G&A, 517 P.2d at 1385-87. Accordingly, we find no abuse of discretion as to the trial court's alternative ground for granting a new trial.

[*736] CROSS APPEAL ISSUES
B. Discovery Rule in Timber Trespass Cases

In his cross-appeal, Boe contends that the trial court should have dismissed the action because it was not filed within the three-year statute of limitations. RCW 4.16.080(1). He further maintains that the discovery rule does not apply to toll the statute in timber trespass cases.

[***20] A cause of action generally accrues at the time the act or omission occurs. In re Estates of Hibbard, 118 Wn.2d 737, 744, 826 P.2d 690 (1992). In some cases, however, injured parties do not, or cannot, know they have been injured when the injury occurs. Where harm has been sustained, but the plaintiff is unaware of it, a literal application of the statute of limitations may result in a grave injustice. Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 220, 543 P.2d 338 (1975). The discovery rule is designed to prevent such injustice. Gazija, 86 Wn.2d at 220.

WA[13][13] HN8Go to this Headnote in the case. Under the discovery rule, the cause of action accrues, and the statute of limitation begins to run, when the plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. Hibbard, 118 Wn.2d at 744; United States Oil & Ref. Co. v. State Department of Ecology, 96 Wn.2d 85, 92, 633 P.2d 1329 (1981). And the statute does not begin to run until the plaintiff knows or with reasonable diligence should know that the defendant was the responsible party. Orear v. International Paint Co., 59 Wn. App. 249, 257, 796 P.2d 759 (1990).

WA[14][14] The Washington Supreme Court adopted the discovery [***21] rule in a medical malpractice action, Ruth v. Dight, 75 Wn.2d 660, 453 P.2d 631 (1969). Although the rule has been extended only to "certain torts," Bowles v. Washington Dep't of Retirement Sys., 121 Wn.2d 52, 80, 847 P.2d 440 (1993), it has been applied where the defendant has concealed information from the plaintiff. Kittinger v. Boeing Co., 21 Wn. App. 484, 488, 585 P.2d 812 (1978).

[*737] In Kundahl v. Barnett, 5 Wn. App. 227, 231, 486 P.2d 1164, review denied, 80 Wn.2d 1001 (1971), the court applied the discovery rule to surveyor malpractice where there was encroachment on neighboring land due to a faulty survey. The discovery rule also applies to negligently caused injury to real property and to damage to real property arising out of construction on adjacent property. Doyle v. Hicks, 78 Wn. App. 538, 544, [**373] 897 P.2d 420 (1995), review denied, 128 Wn.2d 1011, 910 P.2d 482 (1996). The decision to extend the discovery rule to a cause of action is a matter of judicial policy. Denny's Restaurants, Inc. v. Security Union Title Ins. Co., 71 Wn. App. 194, 216, 859 P.2d 619 (1993).

WA[15][15] We hold that HN9Go to this Headnote in the case.the discovery rule applies to timber trespass actions at least where, as here, the defendant [***22] conceals his wrongdoing. See Kittinger, 21 Wn. App. at 488. Boe knew in 1988, from the survey, that he had trespassed on the Allyns' property and cut down their trees. But he did not tell the Allyns of the trespass. Furthermore, when confronted by the sheriff, Boe denied cutting the trees. Mr. Allyn was forced to hire an investigator and timber expert to learn who had cut his trees. Thus, although Mr. Allyn learned of the trespass within the three-year period of the statute, he was frustrated in identifying the trespasser by Boe's denials and concealment. Under these circumstances, fairness compels the application of the discovery rule. Moreover, we see no meaningful distinction between this timber trespass action and the other cases of tortious injury to real property where the discovery rule has been applied. See, e.g., Kundahl, 5 Wn. App. at 231 (discovery rule applies to surveyor malpractice where encroachment on neighboring land was due to a faulty survey); Doyle, 78 Wn. App. at 544 (discovery rule applies to negligently caused injury to real property and to damage to real property arising out of construction on adjacent property). Accordingly, the statute of limitations [***23] on the Allyns' timber trespass cause of action against Boe did not begin to run until October [*738] 1990, when Mr. Allyn learned that Boe had logged his property. The action, therefore, was timely filed.

C. Emotional Distress Damages

WA[16][16] Boe then argues that the trial court erred in permitting the Allyns to recover emotional distress damages. Division One of this court recently held that, HN10Go to this Headnote in the case.because extraordinary losses in a timber trespass action are recoverable if properly segregated, a landowner can recover for emotional distress damages. Birchler, 81 Wn. App. at 607. The court found that such damages cannot be fairly characterized as "a customary by-product" of removing vegetation because the damages are unique to the values and sensitivities of the property owner. Birchler, 81 Wn. App. at 608. Because trees, timber, or vegetation may have little market value, but great emotional value to the landowner, emotional distress damages provide compensation for the personal injury to the landowner. Birchler, 81 Wn. App. at 608-09. Accordingly, the trial court properly permitted the Allyns to recover emotional distress damages.

D. Expert Testimony and Verdict Form

WA[17][17] WA[18][18] Boe then [***24] argues that the trial court erred in admitting the expert testimony of Beck. HN11Go to this Headnote in the case.The trial court has discretion on whether to admit expert testimony; its discretion will be overturned only for an abuse of that discretion. State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 112 L. Ed. 2d 772, 111 S. Ct. 752 (1991). Beck testified to her qualifications; Boe does not challenge these qualifications. Accordingly, the trial court did not abuse its discretion in admitting Beck's testimony.

Finally, Boe's contentions regarding the special verdict form and its emotion distress damages portion are without merit.

[*739] We affirm.

Bridgewater, J., concurs.

DISSENT BY: Elaine M. Houghton

DISSENT

Houghton, C.J. (dissenting) -- I respectfully dissent. The record here does not support the majority's conclusion that a new trial was warranted based upon juror misconduct. During voir dire, the realtor-juror indicated that she knew Taylor. She was then asked if her knowledge and familiarity with Taylor prevent her from "giving either party a fair trial." She indicated that it would not.

Generally courts are reluctant to disturb a jury's verdict absent a strong and affirmative showing of juror misconduct. [***25] See, e.g., Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 271, [**374] 796 P.2d 737 (1990). A juror's responses during voir dire may amount to misconduct requiring a new trial where the juror "give a false answer on a material matter during voir dire examination that conceals information properly requested by a litigant." Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 160, 776 P.2d 676 (1989) (quoting Smith v. Kent, 11 Wn. App. 439, 444, 523 P.2d 446 (1974)).

Here the juror was asked whether her knowledge of Taylor would prevent her from giving the parties a "fair trial." Because this question was vague and open-ended, her response cannot be characterized as a false answer. Further, because the question was too vague to effectively inquire into her opinions regarding Taylor's reputation as an appraiser, her response cannot be considered as concealing information properly requested by a litigant. Boe had the opportunity to ask more pointed questions, but declined to do so. For these reasons, I believe that Boe fails to make the strong and affirmative showing of juror misconduct required to support a new trial order. I would reverse the trial court and reinstate the jury's [***26] verdict.

I would also decline to limit timber trespass damages as the majority has. In concluding that timber trespass damages are not limited by the value of the land, the majority concedes that trees have value beyond that of a mere commodity. [*740] But the rule adopted here arbitrarily limits timber trespass damages by requiring that they be reasonably related to the fair market value of the land.

In Washington, a plaintiff may bring an action for timber trespass under RCW 64.12.030 where the defendant unlawfully removes ornamental trees and shrubs from the plaintiff's property. Tatum v. R&R Cable, Inc., 30 Wn. App. 580, 583, 636 P.2d 508 (1981), overruled on other grounds, Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 790, 733 P.2d 960 (1987). In such cases the appropriate measure of damages is the cost of replacement and restoration. Birchler v. Castello Land Co., Inc., 81 Wn. App. 603, 607, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106, 942 P.2d 968 (1997); Sherrell v. Selfors, 73 Wn. App. 596, 603, 871 P.2d 168 (1994); Tatum, 30 Wn. App. at 583.

Here, calculating replacement and restoration costs is within the province of the jury as the finder of fact. Selfors, 73 Wash. [***27] App. at 603; Tatum, 30 Wn. App. at 583-84. There was evidence before the jury that the actual cost of replacement was well in excess of $ 75,000. Further, there was evidence that, under the basic formula method, the total value of the removed trees was $ 84,597. Because the jury's award of $ 75,000 is supported by substantial evidence, I would affirm.

The majority also relies upon the jury's award of $ 25,000 for emotional damages to support its conclusion that the "total award" is unreasonably excessive in relation to the land. A plaintiff in a timber trespass action may recover for emotional distress in addition to statutory damages. Birchler, 81 Wn. App. at 607-09. No case cited by the majority supports the proposition that emotional damages are in any way limited by the value of the land. Because they are properly segregated here, I believe that it is improper to aggregate emotional and statutory damages as the majority has here.

Review denied at 134 Wn.2d 1020 (1998).

 

[bsemaj]

So from the deduction of analysis of the above as far as your plant value going to your AG we have :



When the damage is to a "productive tree," such as a fruit tree, the proper measure is the tree's production value.

Now we have the sentencing commission and the court showing in delineated fashion this here as for "Production Value of "A" single plant " , One marijuana plant is treated as equivalent to 1 kilogram
(not 100 grams).

2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including. Possession ..... 520 U.S. 751, 757 (1997), and “commentary in the Guidelines ...

Note: One marijuana plant is treated as equivalent to 1 kilogram
(not 100 grams) of marijuana for purpose of setting the statutory
penalty range. See 21 U.S.C. §§ 841(b)(1)(A)(vii), (B)(vii), (D).

Marijuana Plants. A marijuana plant is defined as “an organism
having leaves and a readily observable root formation.” See
§2D1.1, comment. (n.17). See also United States v. Foree, 43 F.3d
1572, 1581 (11th Cir. 1995) (a cutting or seedling from a
marijuana plant is not considered a plant until the cutting or
seedling develops roots of its own)

Courts have generally applied the equivalency even if the
actual weight of harvested marijuana plants is lower than 100
grams per plant. See United States v. Olsen, 537 F.3d 660, 665 n.2
(6th Cir. 2008) (collecting cases)

Now go to any website that has pricing for an Oz. of top shelf and you have your market value created by the above government guidelines. This is just an "average" of their created value. As I also have case law distinguishing hybrids from non hybrid strains, which they claim makes a big huge difference in price.. as the THC level is different for each and every hybrid strain they have evaluated .

Raising the market value from schwag to 1 hit wonder .. every 2 weeks.. lol.

Enjoy your retirement my friend !!

 

[Wingman420]

So from the deduction of analysis of the above as far as your plant value going to your AG we have :



When the damage is to a "productive tree," such as a fruit tree, the proper measure is the tree's production value.

Now we have the sentencing commission and the court showing in delineated fashion this here as for "Production Value of "A" single plant " , One marijuana plant is treated as equivalent to 1 kilogram
(not 100 grams).

2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including. Possession ..... 520 U.S. 751, 757 (1997), and "commentary in the Guidelines ...

Note: One marijuana plant is treated as equivalent to 1 kilogram
(not 100 grams) of marijuana for purpose of setting the statutory
penalty range. See 21 U.S.C. §§ 841(b)(1)(A)(vii), (B)(vii), (D).

Marijuana Plants. A marijuana plant is defined as "an organism
having leaves and a readily observable root formation." See
§2D1.1, comment. (n.17). See also United States v. Foree, 43 F.3d
1572, 1581 (11th Cir. 1995) (a cutting or seedling from a
marijuana plant is not considered a plant until the cutting or
seedling develops roots of its own)

Courts have generally applied the equivalency even if the
actual weight of harvested marijuana plants is lower than 100
grams per plant. See United States v. Olsen, 537 F.3d 660, 665 n.2
(6th Cir. 2008) (collecting cases)

Now go to any website that has pricing for an Oz. of top shelf and you have your market value created by the above government guidelines. This is just an "average" of their created value. As I also have case law distinguishing hybrids from non hybrid strains, which they claim makes a big huge difference in price.. as the THC level is different for each and every hybrid strain they have evaluated .

Raising the market value from schwag to 1 hit wonder .. every 2 weeks.. lol.

Enjoy your retirement my friend !!

bsemaj my brother I cannot thank you enough!!

 

[Wingman420]

Sorry my last post was so short I was just getting ready to go for dinner with the family. I want to thank you again for this I know it is a lot of work and research but this is exactly what I will need in Court. Written decisions, and appeals are lacking in Medical Marijuana cases (at least here in RI) and anything that we can extrapolate or use as a point of reference will help. I am very grateful
In addition to this case I was burgularized days before last Christmas with the scumbags taking all my childrens presents, 24 Mature (10th week of flower) Marijuana Plants, 12 mother plants that were fully vegged, (each able to produce 24-36 proper cuttings to run a single strain at a time), various pipes, and about 4 ounces of jarred cured Marijuana.
The punks were arrested after I reported the break in and the DA called to ask the value of the Marijuana Plants. I informed him I was willing to go by what the DEA, and Police estimate the worth at. He asked what that was and I said to the best of my knowledge it is $1,000.00 (one thousand dollars), per plant. After a brief pause he said "we are not going to pay you for your Marijuana" so I know this will help when trying to recover money for stolen Plants as well as the crimminal case.

 

[bsemaj]

Sorry my last post was so short I was just getting ready to go for dinner with the family. I want to thank you again for this I know it is a lot of work and research but this is exactly what I will need in Court. Written decisions, and appeals are lacking in Medical Marijuana cases (at least here in RI) and anything that we can extrapolate or use as a point of reference will help. I am very grateful
In addition to this case I was burgularized days before last Christmas with the scumbags taking all my childrens presents, 24 Mature (10th week of flower) Marijuana Plants, 12 mother plants that were fully vegged, (each able to produce 24-36 proper cuttings to run a single strain at a time), various pipes, and about 4 ounces of jarred cured Marijuana.
The punks were arrested after I reported the break in and the DA called to ask the value of the Marijuana Plants. I informed him I was willing to go by what the DEA, and Police estimate the worth at. He asked what that was and I said to the best of my knowledge it is $1,000.00 (one thousand dollars), per plant. After a brief pause he said "we are not going to pay you for your Marijuana" so I know this will help when trying to recover money for stolen Plants as well as the crimminal case.

All for 1 and 1 for all.


WHAT IS THE "FAIR" MARKET VALUE SET FOR "A" CANNABIS PLANT ?

GotClones1 wrote:

I would love to chime in on this . That really all depends on what the end use is to be.

For example a healthy mother should produce up to 75+ clones a month at 10.00 ea. that's 9,000.00 annual . If it's one of our six way x's that took over three years to make and stabilize I would say a lot more than 12,500.00 per plant (they're priceless). Were these indoor/outdoor ? I lost two nurseries in the past few years I valued the generic strains (meaning anything easily acquired and common) at no less than 1500.00 min. per mother if she was uncut and within the first 90 days of rooting. These are just estimates and my opinion only. Remember and I am assuming you're an experienced grower ,inexperienced growers should never count on certain values there are just too many variables. Even with years of experience stuff sometimes happens. I wish you all of the luck and truly hope someone with real legal knowledge answers you and that you get the results you wish for. Sorry about your garden whatever it was.

The "MILKING COW/GOAT" legal theory .. love it. !!

________________________________________________________________________

Wingman,

I have more coming soon..

The "milking cow" case law..

Now the caselaw on the search warrant stuff, shows if you reverse engineer it.. it is what your looking for..

A warrant is required unless they can show you committed a felony in front of them.. presumption in your law says, nope, must make sure not a qualifying patient/caregiver without a card first before any PC attaches... i.e. Miranda doesn't attach until after investigation of registry system verification.

Any informant must be checked due to the registry system .. i.e. no PC attaches to the info until after registry verification you are in fact in violation of a "public offense" .

In your state, being a medical cannabis patient or caregiver is not a public offense.. if you have a card and are registered.. it is a "prescription" equivalent .

Ram that down their necks, and watch this all go away..

* * * When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. * * *" Carroll v. U. S., supra.

If it isn't illegal for you to "have" , it can not be used as "evidence" in a prosecution for that which you lawfully possess .

That would be like prosecuting you because you: have clothes on.. use an appliance in your home.. own a car outright and is registered to you... drink water, eat food, breath oxygen.. you get my point..

To punish a person because he has done what the law plainly allows him to do is a due
process violation of the most basic sort. See North Carolina v. Pearce, supra, at 738 (opinon of Black,J), and for an agent of the state to pursue a coarse of action whose objective is to penalize a persons reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, at 32-33.n. 20

The doctrine of informed consent, which is premised on the principle that "every human

being of adult years and of sound mind has a right to determine what shall be done with

his/her own body .'" reflects judicial recognition of the critical importance of this right.

Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972), (quoting Schloendorff v.

Soc'y of new york hospital, 211 N.Y. 125, 129 105 N.E. 92, 93 (1914) (Cardozo, J.)). See

also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 269 (1990) (doctrine of

informed consent is "firmly entrenched in American tort law"). To ensure that patients

can exercise this right, the informed consent doctrine requires physicians to provide

patients sufficient information and advice necessary to "evaluate knowledgeably the

options available and the risks attendant upon each". Canterbury, 464 F.2d 772, 271.

Physicians must offer enough medical information and advice to give a patient

"familiarity with the therapeutic alternatives and their hazards." Cobbs v. Grant, 8 Cal. 3d

229, 243 (Cal.(1972); see also American Medical Association, code of medical Ethics

120 (1996-1997) ("AMA Code of Medical Ethics".)

Perhaps more significantly, patients have a constitutional right to receive all information

and advice that the physician sincerely and reasonably believes is relevant to the patients

condition and which he/she wishes to convey. Thus, in the medical context, as in other

areas, the listeners right to receive information from a willing speaker is paramount. See,

e.g. First Nat'l bank v. Belotti, 435 U.S. 765 (1978) ( the First Amendment "prohibits

government from limiting the stock of information from which members of the public

may draw"); Virginia state bd. of pharmacy v. Virginia citizens consumer council, 425

U.S. 748 (1976) (First Amendment "protection afforded is to the communications, to its

source and to its receipts both"); Stanley v. Georgia, 394 U.S. 557 (1969) (it is "now well

established that the constitution protects the right to receive information and ideas").

This information and advice which patients do not have and cannot easily obtain. If

physicians cannot share the recommendations and advice they reasonably believe are

relevant to their patients condition, those patients first amendment rights are infringed, as

are the rights of the physicians to inform, recommend, and counsel their patients

according to their best medical judgment.


If these idiots don't see a legal "double barrel shotgun" in their face, pull the trigger .. make them an example for your community.. HOLD NO PRISONERS !!

And then document it for all to see !!

The U.S. senate just signed a bill of the same effect..

If ya can't beat em' , join them.. just make sure when you do, your the captain.

 

[bsemaj]

ADAMS v. U.S.---October 6, 2011.

ADAMS v. U.S.
TIMM ADAMS, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.
Case No. 4:03-cv-00049-BLW.
United States District Court, D. Idaho.

October 6, 2011.


Read this case and the case law in it.. one of them should work .

I have more.


DAIRY v. GOLDEN STATE FEE | Nos. F058548, F058766 | 20110421044 | Leagle.com

1. The damages award.

a. The evidence that the nonconforming mineral caused continuing harm is sufficient to support the lost profits award.

b. The finding that the death of 72 cows was caused by the nonconforming mineral is supported by sufficient evidence.

c. The "loss of sale value" award is supported by sufficient evidence.

d. The "loss of offspring" award is supported by sufficient evidence.

e. The amount of veterinary costs is supported by sufficient evidence.

2. The attorney fee award.

 

[Wingman420]

All for 1 and 1 for all.


WHAT IS THE "FAIR" MARKET VALUE SET FOR "A" CANNABIS PLANT ?

GotClones1 wrote:

I would love to chime in on this . That really all depends on what the end use is to be.

For example a healthy mother should produce up to 75+ clones a month at 10.00 ea. that's 9,000.00 annual . If it's one of our six way x's that took over three years to make and stabilize I would say a lot more than 12,500.00 per plant (they're priceless). Were these indoor/outdoor ? I lost two nurseries in the past few years I valued the generic strains (meaning anything easily acquired and common) at no less than 1500.00 min. per mother if she was uncut and within the first 90 days of rooting. These are just estimates and my opinion only. Remember and I am assuming you're an experienced grower ,inexperienced growers should never count on certain values there are just too many variables. Even with years of experience stuff sometimes happens. I wish you all of the luck and truly hope someone with real legal knowledge answers you and that you get the results you wish for. Sorry about your garden whatever it was.

The "MILKING COW/GOAT" legal theory .. love it. !!

________________________________________________________________________

Wingman,

I have more coming soon..

The "milking cow" case law..

Now the caselaw on the search warrant stuff, shows if you reverse engineer it.. it is what your looking for..

A warrant is required unless they can show you committed a felony in front of them.. presumption in your law says, nope, must make sure not a qualifying patient/caregiver without a card first before any PC attaches... i.e. Miranda doesn't attach until after investigation of registry system verification.

Any informant must be checked due to the registry system .. i.e. no PC attaches to the info until after registry verification you are in fact in violation of a "public offense" .

In your state, being a medical cannabis patient or caregiver is not a public offense.. if you have a card and are registered.. it is a "prescription" equivalent .

Ram that down their necks, and watch this all go away..

* * * When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. * * *" Carroll v. U. S., supra.

If it isn't illegal for you to "have" , it can not be used as "evidence" in a prosecution for that which you lawfully possess .

That would be like prosecuting you because you: have clothes on.. use an appliance in your home.. own a car outright and is registered to you... drink water, eat food, breath oxygen.. you get my point..

To punish a person because he has done what the law plainly allows him to do is a due
process violation of the most basic sort. See North Carolina v. Pearce, supra, at 738 (opinon of Black,J), and for an agent of the state to pursue a coarse of action whose objective is to penalize a persons reliance on his legal rights is “patently unconstitutional.” Chaffin v. Stynchcombe, supra, at 32-33.n. 20

The doctrine of informed consent, which is premised on the principle that “every human

being of adult years and of sound mind has a right to determine what shall be done with

his/her own body .’” reflects judicial recognition of the critical importance of this right.

Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972), (quoting Schloendorff v.

Soc’y of new york hospital, 211 N.Y. 125, 129 105 N.E. 92, 93 (1914) (Cardozo, J.)). See

also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 269 (1990) (doctrine of

informed consent is “firmly entrenched in American tort law”). To ensure that patients

can exercise this right, the informed consent doctrine requires physicians to provide

patients sufficient information and advice necessary to “evaluate knowledgeably the

options available and the risks attendant upon each”. Canterbury, 464 F.2d 772, 271.

Physicians must offer enough medical information and advice to give a patient

“familiarity with the therapeutic alternatives and their hazards.” Cobbs v. Grant, 8 Cal. 3d

229, 243 (Cal.(1972); see also American Medical Association, code of medical Ethics

120 (1996-1997) (“AMA Code of Medical Ethics”.)

Perhaps more significantly, patients have a constitutional right to receive all information

and advice that the physician sincerely and reasonably believes is relevant to the patients

condition and which he/she wishes to convey. Thus, in the medical context, as in other

areas, the listeners right to receive information from a willing speaker is paramount. See,

e.g. First Nat’l bank v. Belotti, 435 U.S. 765 (1978) ( the First Amendment “prohibits

government from limiting the stock of information from which members of the public

may draw”); Virginia state bd. of pharmacy v. Virginia citizens consumer council, 425

U.S. 748 (1976) (First Amendment “protection afforded is to the communications, to its

source and to its receipts both”); Stanley v. Georgia, 394 U.S. 557 (1969) (it is “now well

established that the constitution protects the right to receive information and ideas”).

This information and advice which patients do not have and cannot easily obtain. If

physicians cannot share the recommendations and advice they reasonably believe are

relevant to their patients condition, those patients first amendment rights are infringed, as

are the rights of the physicians to inform, recommend, and counsel their patients

according to their best medical judgment.


If these idiots don't see a legal "double barrel shotgun" in their face, pull the trigger .. make them an example for your community.. HOLD NO PRISONERS !!

And then document it for all to see !!

The U.S. senate just signed a bill of the same effect..

If ya can't beat em' , join them.. just make sure when you do, your the captain.

BRAVO bsemaj BRAVO I will be using these as guideposts when trying to be made whole. I look forward to my chance at Justice, while I Pray for the best, and hope people will see the truth.



I asked the Police keep all Plants ALIVE to prove their case in Court hoping for a Special Hearing but was told they would not keep them alive and had already seized them.

 

[bsemaj]

What happens when you walk into a store and you take that which is not yours ?

What happens when you cross the threshold of someones door to their home ?

What happens when the popo can't read English ?

What happens when the popo play doctor like children do ?

What happens when popo says : I smelled his lawful medicine in which the legislature clearly delineated if he has a card covering all plants and usable medicine.. it's not a criminal offense nor an Affirmative Defense in which I can don and doff my lawful duties..

I knowingly and with reckless disregard for the truth, I rob him because I have serious mental issue' which could be used against me in a hearing about my job.. security.

is what I would do.. now back to reality.

Do you know the "exact" PC for the intrusion into your home ??

i.e. the exact words they used ..

And in the popo report, does it mention you having mmj cards as a caregiver ??

Does the report claim : your over the limit amount ?

If so, what are the exact words used ??

What are your limit amounts ?

If he seized a cow or a goat or some other animal which would be used for a supply of healthy living (instead of using the general market place) and killed it.. what could be done about it ?? Does the law allow him to destroy your lawful property ??

His problem is going to be, he seized property which is exempt from seizure and forfeiture if :

1.) You have a card;

2.) for each patient covering each plant

3.) and/or it's product.

1# -#3 cancels out probable cause by any other claimed "exigent circumstances" .

Card caring patient/caregiver are exempt from the criminal laws of your state per the plain statutory construction .

no card caring patient/caregivers are not exempt and must go to trial.

Property may be "temporarily" seized and motion for return is available.

It may not be forfeited until a verdict of guilty is had..

If a not guilty is had, return shall be the remedy at law.

If destroyed, it's fair market value shall be paid.

Common-law rules.