Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                         MARCH 1, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                No.  29736-5-III
                                                )
                      Respondent,               )
                                                )   Division Three
              v.                                )
                                                )
ERWIN W. HULL,                                  )   UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, C.J.  --  The Grant County Sheriff's Office and the Drug Enforcement 

Agency (DEA) received tips that Erwin Hull was growing marijuana in a dug out room 

below his house.  The sheriff obtained a search warrant for Mr. Hull's home and found a 

grow operation as described by the informants.  When questioned by police, Mr. Hull did 

not have documentation designating him as a marijuana provider.  On stipulated facts, the 

court found Mr. Hull guilty of one count of manufacture of marijuana.  Mr. Hull appeals. 

He contends that the magistrate did not have probable cause to issue the search warrant, 

that the trial court should have allowed him to assert an affirmative defense as a 

designated provider, and that he did not knowingly manufacture marijuana contrary to  

No. 29736-5-III
State v. Hull

law.  We conclude that Mr. Hull's assertions of error are unpersuasive and, therefore, 

affirm the conviction.

                                            FACTS

       In April 2009, the Grant County Sheriff's Office Interagency Narcotics 

Enforcement Team (INET) received two anonymous tips from the Washington State 

Patrol Marijuana Hotline.  The tipsters reported an underground marijuana grow 

operation at Mr. Hull's home.  The tipsters stated that the grow was accessible through a 

trapdoor in a bedroom of the residence.  Detective Jeff Wentworth of INET determined 

that Erwin and Jacqueline Hull owned the property at 550 South Grand Drive in Moses 

Lake, Washington.  

       As part of the investigation, in June 2009, Detective Wentworth checked the 

power records of the Hull residence and compared the power usage with neighboring 

homes of comparable size and age.  Detective Wentworth determined that the Hull 

residence used more kilowatt hours than the comparable households; one comparison 

established a difference of approximately 6,751 kilowatt hours.  Admittedly, some of the 

comparable households had upgrades to insulation and windows where the Hull residence 

did not. 

       In July 2009, Detective Wentworth received a report from an agent in the Spokane 

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State v. Hull

division of the DEA.  The report indicated that a confidential source, who had done 
work for the DEA in the past, claimed that "'Jackie and Buster'"1 who lived 550 South 

Grand Drive in Moses Lake, Washington, were growing marijuana in their home.  

According to the report, the confidential source was at 550 South Grand Drive during the 

first week in July.  While at the residence, the confidential source was shown a trapdoor 

in the closet of a bedroom that led to an underground facility where approximately 50 

marijuana plants were being grown under bright lights.  

       Later in July, the confidential source called the hotline and stated that he or she 

had again observed the room under the house, and the grow operation was still active as 

of July 30, 2009.  

       On August 4, Detective Wentworth received a search warrant to use a thermal 

imaging device on the Hull residence.  Detective Wentworth did not observe any heat 

change differences between the Hull residence and other comparable homes.  Detective 

Wentworth noted that this finding would be logical if the grow operation was 

underground.  

       Five months later, on January 12, 2010, Detective Wentworth spoke with a citizen 

informant (CI) who wanted to give information on the marijuana grow operation at 550 

       1 Clerk's Papers at 34.

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State v. Hull

South Grand Drive.  The CI stated that Jackie and Erwin Hull lived at the 

residence.  The CI said that he or she had known Jackie for more than 20 years and 

that Jackie struggled with drug addiction.  The CI further advised that in the late spring to 

early summer of 2009, he or she visited the Hull house and Jackie revealed the marijuana 

grow operation under the house.  The CI was shown a trapdoor in the closet floor of a 

bedroom and was invited to go under the house.  The CI saw that the entire foundation 

had been dug out. The CI observed numerous marijuana plants in different stages of 

growth.  

       The CI's past history with the drug culture helped the CI recognize the plants as 

marijuana plants.  The CI also provided other correct, verifiable information to Detective 

Wentworth, such as the date that the Hulls moved into the residence, Mr. Hull's place of 

employment, and specific information regarding the transfer of Ms. Hull's vehicle.  The 

CI agreed to disclose his or her identity to the magistrate issuing the warrant.    

       Detective Wentworth and a colleague conducted another comparative investigation 

of the Hulls' power usage, using different homes from the previously-listed comparables. 

The officers discovered that in 2008, the Hulls used approximately 12,900 more kilowatt 

hours and spent approximately $130 more for power consumption than their neighbors.  

In 2009, the difference increased to approximately 16,500 kilowatt hours and $550. 

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State v. Hull

       Detective Wentworth requested and received a search warrant to enter the Hull 

residence and search for evidence of marijuana manufacturing, consumption, use, and/or 

distribution.  An affidavit accompanied his request.  

       Upon execution of the warrant, Mr. Hull voluntarily responded to the officer's 

knock and complied with all orders.  In the southwest bedroom closet, Detective 

Wentworth observed a trapdoor in the floor, which opened into an underground room 

where 11 marijuana plants were growing.  Detective Wentworth heard Mr. Hull state that 

he was growing marijuana plants for his father and that his father passed away in 

December.  Mr. Hull also stated that he did not have any paperwork authorizing him to 

grow marijuana.  On that same day, Mr. Hull was arrested and charged in Grant County 

with manufacture of marijuana.  

       Procedural Facts. Mr. Hull filed a motion to suppress evidence obtained under 

the search warrant, contending the warrant was not supported by probable cause.  The 

court held an evidentiary hearing and entered formal findings of fact and conclusions of 

law.  The court ultimately denied Mr. Hull's motion to suppress. 

       On the first day of trial on January 5, 2011, the State brought a motion in limine to 

preclude Mr. Hull from asserting the affirmative defense of providing marijuana as a 

designated provider for an authorized patient.  Mr. Hull sought to admit evidence that 

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State v. Hull

established Mr. Hull as Noel Callahan's designated provider of medical marijuana.  Mr. 

Hull also sought to admit documentation that authorized Mr. Callahan to use marijuana 

for medical purposes.  Mr. Callahan's authorization was issued on December 7, 2008, 

and expired on December 7, 2009, one month before the search of Mr. Hull's residence. 

Mr. Hull did not provide this documentation to law enforcement; the first presentation 

occurred in March or April 2010 when Mr. Hull's counsel furnished it to the State.  The 

trial court adjourned without a decision on the State's motion. 

       On the second day of trial, Mr. Hull presented new, additional documentation 

relating to Mr. Callahan's authorized use of medical marijuana.  This subsequent 

authorization was issued on January 27, 2010, two weeks after the search of Mr. Hull's 

residence.  

       The trial court granted the State's motion to prohibit Mr. Hull from raising an 

affirmative medical marijuana defense.  The trial court determined that Mr. Hull's 

qualifying patient did not have valid authorization that would allow Mr. Hull to grow 

marijuana and that Mr. Hull failed to provide documentation to law enforcement at the 

time of inquiry, as required by statute.  The parties proceeded to a stipulated facts trial.  

The trial court found Mr. Hull guilty of manufacture of marijuana.  The trial court 

sentenced Mr. Hull to 30 days in jail, with credit for one day served and the balance of 29 

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No. 29736-5-III
State v. Hull

days converted into community service.  

                                         ANALYSIS

       Motion to Suppress.  A magistrate's determination that probable cause exists is 

reviewed for an abuse of discretion.  State v. Vasquez, 109 Wn. App. 310, 317-18, 34 

P.3d 1255 (2001) (conceding that the standard of review of a police officer's probable 

cause determination is not as deferential), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002).  A 

reviewing court should give great deference to a judge's decision.  State v. Seagull, 95 

Wn.2d 898, 907, 632 P.2d 44 (1981). Any doubts are to be resolved in favor of the 

warrant.  State v. O'Connor, 39 Wn. App. 113, 123-24, 692 P.2d 208 (1984).  A judicial 

determination of probable cause will be sustained so long as a substantial basis exists for 

the decision.  State v. Lyons, 160 Wn. App. 100, 105, 247 P.3d 797 (quoting Aguilar v. 

Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), abrogated by Illinois 

v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State 

v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984)), review granted, 172 Wn.2d 1013 

(2011).

       "The burden of proof is on the defendant moving for suppression to establish the 

lack of probable cause."  State v. Anderson, 105 Wn. App. 223, 229, 19 P.3d 1094 

(2001). The reviewing court looks to the information available to the magistrate at the 

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No. 29736-5-III
State v. Hull

time the warrant was issued.  Id.

       "The warrant clause of the Fourth Amendment of the United States Constitution 

and article I, section 7 of the Washington Constitution require that a search warrant be 

issued upon a determination of probable cause based upon 'facts and circumstances 

sufficient to establish a reasonable inference' that criminal activity is occurring or that 

contraband exists at a certain location."  State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 

(2002) (footnote omitted) (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 

(1999)). 

       "Probable cause is established when an affidavit supporting a search warrant 

provides sufficient facts for a reasonable person to conclude there is a probability the 

defendant is involved in the criminal activity."  Id.  The magistrate is entitled to draw 

commonsense inferences from the stated facts in the affidavit.  State v. Kennedy, 72 Wn. 

App. 244, 248, 864 P.2d 410 (1993).  Facts that do not establish probable cause when 

considered singularly can establish probable cause when viewed together.  State v. Cole, 

128 Wn.2d 262, 286, 906 P.2d 925 (1995).

       When an informant's tip supplies information used in the affidavit, Washington 

uses the test found in Aguilar and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 

21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213, but adhered to by 

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No. 29736-5-III
State v. Hull

Jackson, 102 Wn.2d 432) to evaluate whether probable cause exists in relation to the 

informant's tip.  Jackson, 102 Wn.2d at 443.  Under the Aguilar-Spinelli test, a 

determination of probable cause requires that the affidavit establishes both (1) the 

informant's basis for knowledge and (2) the informant's credibility.  Id.

       For the basis for knowledge prong, the affidavit must reveal facts that permit the 

magistrate to determine whether the informant had a basis for his allegation that a certain 

person committed a crime.  Id. at 437.  This prong is satisfied by showing that the 

informant obtained the information through firsthand observations.  Id.

       For the "veracity" or credibility prong, the affidavit must contain facts that allow 

the magistrate to determine the credibility of the informant.  Id. "The credibility of a 

confidential informant depends on whether the informant is a private citizen or a 

professional informant and, if a citizen informant, whether his or her identity is known to 

the police."  State v. Atchley, 142 Wn. App. 147, 162, 173 P.3d 323 (2007). 

       When the police and the magistrate know the identity of the informant, the 

necessary showing of reliability is relaxed.  Id.  In a situation where the police know the 

identity of the informant but the magistrate does not, the burden of showing reliability is 

raised and the affidavit must contain "'background facts to support a reasonable inference 

that the information is credible and without motive to falsify.'"  Id. (quoting Cole, 128 

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No. 29736-5-III
State v. Hull

Wn.2d at 287-88).  The credibility prong can be satisfied by showing that the informant 

has a record of providing accurate information to the police.  Jackson, 102 Wn.2d at 437.

       If either or both of the prongs are not met, probable cause may still be established 

if an independent police investigation corroborates the informant's tip to such an extent 

that it supports the missing elements of the Aguilar-Spinelli test.  Id. at 438. The police 

investigation should point to suspicious acts that indicate criminal activity as suggested 

by the informant.  Id.  "Merely verifying 'innocuous details,' commonly known facts or 

easily predictable events should not suffice to remedy a deficiency in either the basis of 

knowledge or veracity prong."  Id.

       While increased power usage alone is not enough to establish probable cause to 

support a warrant, it does provide additional evidence that supports the probable cause 

determination of the magistrate.  State v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110 

(1994).

       Here, the affidavit listed several sources of information to support a finding of 

probable cause.  The information provided by the DEA confidential source is of primary 

importance.  First, the DEA confidential source had a basis of knowledge through his 

firsthand observations of the marijuana grow.  The DEA confidential source saw the 

underground marijuana grow operation and gave a detailed description of Mr. Hull's 

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No. 29736-5-III
State v. Hull

sophisticated operation.  This description included the location of the trapdoor in the 

bedroom closet, the number and size of plants, and how Mr. Hull propagated and grew 

the plants.  

       Second, the DEA confidential source was credible due to his past history with the 

DEA.  The DEA confidential source previously provided information which led to arrests 

for narcotics violations.  Because the affidavit established the credibility of the DEA 

confidential source and his firsthand knowledge of the facts, the information provided by 

the DEA confidential source satisfies both prongs of the Aguilar-Spinelli test and 

supports a finding of probable cause. 

       Furthermore, the affidavit contained additional information that supported a 

finding of probable cause.  Another informant, the CI, also met the requirements of the 

Aguilar-Spinelli test.  The CI personally observed the underground marijuana grow 

operation and provided Detective Wentworth with specific details that matched the 

information given by the DEA confidential source.  The CI identified the plants as 

marijuana based on his history with the drug culture and marijuana magazines.  The CI 

had personal observations sufficient to support a basis of knowledge.

       As to credibility, the CI was willing to have his or her identity disclosed to the 

magistrate.  However, the record does not support the conclusion that the magistrate knew 

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No. 29736-5-III
State v. Hull

the identity of the CI, thereby relaxing the credibility requirement.  In any case, the CI 

provided noninnocuous facts that established his or her credibility, such as Ms. Hull's 

past history with drug use, the details surrounding the transfer of Ms. Hull's car, Mr. 

Hull's employer, and the length of time the Hulls lived in their home.  Detective 

Wentworth verified the information through an independent investigation.  The 

information provided by the CI passes both prongs of the Aguilar-Spinelli test.

       Detective Wentworth also provided corroborating evidence through an 

investigation into the Hulls' power usage.  Two investigations using four comparable 

homes showed that the Hull residence consumed more power than its neighbors.  Also, 

thermal imaging of the Hull residence did not show any heat differences between the Hull 

residence and other comparable homes, despite the increased energy usage.  Detective 

Wentworth determined that it was not unusual for underground grow operations to fail to 

show thermal heat changes.  The increased energy usage and thermal imaging 

corroborates the information that the Hulls maintained an underground grow operation.

       Admittedly, the anonymous tips gathered from the marijuana hotline have little 

credibility and importance when standing alone.  However, when considered with the 

other facts in the case, these tips provide additional evidence to support a finding of 

probable cause. 

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No. 29736-5-III
State v. Hull

       The court did not abuse its discretion by determining probable cause existed based 

on the information from the DEA confidential source, the information from the CI, the 

increased power usage, and the anonymous tips. 

       The trial court did not err by denying Mr. Hull's motion to suppress the evidence 

discovered through the search warrant because the search warrant was supported by 

probable cause. 

       Affirmative Defense -- Provider of Medical Marijuana.  Whether the trial court 

erred by disallowing a defendant to assert an affirmative defense is a question of law that 

is reviewed de novo.  State v. Fry, 168 Wn.2d 1, 11, 228 P.3d 1 (2010). 

       Under former RCW 69.51A.040(3) (2007), an individual may establish an 

affirmative defense as a medical marijuana designated provider, if the person 

              (a)  Meet[s] all criteria for status as a . . . designated provider;
              (b)  Possess[es] no more marijuana than is necessary for the patient's 
       personal, medical use, not exceeding the amount necessary for a sixty-day 
       supply; and 
              (c)  Present[s] his or her valid documentation to any law 
       enforcement official who questions the . . . provider regarding his or her 
       medical use of marijuana.

       To be a designated provider, a person must be 18 years or older, be designated in 

writing by a patient to serve as a designated provider, cannot consume marijuana obtained 

for the personal medical use of the patient, and serve as the designated provider for one 

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No. 29736-5-III
State v. Hull

patient at a time.  RCW 69.51A.010(1). 

       Valid documentation requires a statement signed by a qualifying patient's 

physician or a copy of the qualifying patient's medical records that, in the physician's 

professional opinion, the patient may benefit from the medical use of marijuana.  Former 

RCW 69.51A.010(5)(a) (2007). 

       Generally, a trial court must allow a defendant to present his or her theory of a 

case if the law and evidence support the theory.  State v. Ginn, 128 Wn. App. 872, 878, 

117 P.3d 1155 (2005).  "A defendant raising an affirmative defense must offer sufficient 

admissible evidence to justify using the defense."  State v. McCarty, 152 Wn. App. 351, 

358, 215 P.3d 1036 (2009).  The defendant may not use irrelevant or inadmissible 

evidence.  Ginn, 128 Wn. App. at 879.  Any relevant and admissible evidence must be 

interpreted in favor of the defendant.  State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 

(2009).  If the law and evidence support a defendant's theory of the case, the trial court's 

failure to instruct the jury on the theory results in a reversible error. Id.

       Under the requirements of the Medical Use of Marijuana Act, chapter 69.51A 

RCW, a defendant must obtain the required documentation in advance of questioning by 

law enforcement.  State v. Butler, 126 Wn. App. 741, 750-51, 109 P.3d 493 (2005).  A 

defendant who fails to present the necessary documentation lacks the proof required to 

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No. 29736-5-III
State v. Hull

assert the affirmative defense of medical marijuana.  Id. at 744 n.2. 

       Mr. Hull failed to present the evidence needed to qualify for the affirmative 

defense.  Specifically, he failed to present valid documentation to the police.  According 

to the testimony of Detective Wentworth, when officers involved in the search questioned 

Mr. Hull and asked for his documentation, Mr. Hull responded that he did not have 

documentation.  Mr. Hull failed to abide by the terms of the statute by not presenting 

documentation to police during questioning.  He lacks the proof required to assert the 

affirmative defense according to RCW 69.51A.040.

       Admittedly, Mr. Hull contends that the officers never asked for documentation and 

he never admitted to the officers that he did not have documentation.  But the first time 

Mr. Hull presented evidence was in March or April 2010, several months after his arrest.  

Mr. Hull failed to produce the information even when charged with the offense.  

       Moreover, the documentation presented by Mr. Hull was not valid.  According to 

former RCW 69.51A.010(5), valid documentation included a physician's statement by the 

qualifying patient's doctor authorizing the patient to use marijuana.  The authorization 

presented by Mr. Hull expired on December 7, 2009.  The additional physician's 

statement that Mr. Hull provided did not take effect until after Mr. Hull's arrest.  Because 

the qualifying patient did not have authorization to use marijuana at the time of Mr. 

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No. 29736-5-III
State v. Hull

Hull's arrest, Mr. Hull did not have valid documentation as required by the statute.  He 

fails to provide the evidence needed to qualify for the affirmative defense.

       The trial court properly granted the State's motion in limine that prohibited Mr. 

Hull from presenting the designated provider affirmative defense.

       Knowingly Manufacturing Marijuana.  Appellate courts review challenged 

findings of fact for substantial evidence.  Vasquez, 109 Wn. App. at 318.

       RCW 69.50.401(1) states that it is unlawful for any person to manufacture, 

deliver, or possess with intent to manufacture or deliver a controlled substance.  

Marijuana is a controlled substance.  Former RCW 69.50.204(c)(14) (1993). 

       Although the statutory offense of manufacturing a controlled substance does not 

have a knowledge element, case law suggests that guilty knowledge is considered a 

nonstatutory element of the crime.  State v. Warnick, 121 Wn. App. 737, 742-43, 90 P.3d 

1105 (2004).  For a defendant to be found guilty of manufacturing a controlled substance, 

the defendant must know that the substance being manufactured is a controlled substance. 

Id. at 743-45.

       Mr. Hull contends that he lacked the nonstatutory knowledge requirement because 

he did not know he was manufacturing marijuana contrary to law.  However, the guilty 

knowledge requirement relates to the actual offense of growing marijuana.  It does not 

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No. 29736-5-III
State v. Hull

incorporate the medical marijuana affirmative defense.  Mr. Hull admitted that the plants 

in his possession were marijuana.  Mr. Hull knowingly grew an illegal substance.  He met 

the guilty knowledge requirement.

       We affirm the conviction.

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

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, C.J.

WE CONCUR:

______________________________              _________________________________
Brown, J.                                   Korsmo, J.

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