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Appeals court overturns medical marijuana case

By Rob Kauder, Internet Content Manager, robk@kxly.com
Published On: Dec 11 2012 07:38:57 PM CST
Updated On: Dec 12 2012 01:50:30 AM CST
Change med marijuana dispensary sign
SPOKANE, Wash. -

A state appellate court has reversed the conviction of a Spokane medical marijuana dispensary owner who was convicted of manufacturing, possessing and selling marijuana.

The court, in its published opinion filed Tuesday, found that Scott Shupe had established a prima facie case to support his defense that he was a legitimate medical marijuana dispensary owner, a claim the state never refuted.

The reason?

While the state successfully built its case around evidence found in search warrants, following the raid on Change and other locations in Spokane, and Shupe's subsequent admission during his closing argument at trial that he possessed, manufactured and distributed marijuana, prosecutors never addressed the core issue in Shupe's defense, that he was authorized to possess and deliver marijuana under state medical marijuana laws.

The appeals court also questioned the veracity of the search warrants executed in the case.

One search warrant, for 726 West Mansfield Avenue, was based on comments made by a neighbor of Shupe's mother, who complained that Shupe "appears to sell marijuana" from the residence. The problem with the warrant was that neighbor never saw marijuana or actually observed a sale take place; in that case the appeals court said the warrant was based on information from a neighbor that was not credible.

In the appeal, the court determined that the search warrants for the Mansfield address, as well as a second location -- 904 East 11th Avenue -- had no probable cause to support those warrants, due to the lack of credible support for them to stand.

Regarding the delivery of marijuana, the appeals court found that the evidence gathered by police and used by prosecutors in the case against Shupe was insufficient to support his conviction.

On this point the court found that police had the opportunity to conduct an undercover operation and attempt to buy marijuana from Change but never did so. They had to prove Shupe sold a controlled substance, but never did. Finally, while conducting surveillance of Change, police spotted Shupe carrying a gym bag to and from the store. Authorities drew the conclusion the bag was being used to transport drugs, but never confirmed it.

The bag was found when the search warrants were executed on the two residences, and it did contain marijuana in it, but the appeals court ruled that the search warrants on those two residences had no probable cause thus, any evidence -- including the bag with marijuana found inside -- was inadmissible.

In 2009, Shupe, the owner of Change, one of the city's first marijuana dispensaries, was found guilty in court on the manufacturing, possession and sales-related charges. He had argued, unsuccessfully at the time, that a broad interpretation of the law allowed for dispensaries to supply product to patients with medical marijuana cards under specific guidelines, such as only serving one patient at a time.

The shutdown of Change had a chilling effect on other dispensaries across the city.

Some closed voluntarily in the wake of the raid on Change, out of fear of similar raids and subsequent prosecution of their establishments. Others remained open however, only to be shut down after the DEA conducted raids on dispensaries across Spokane in April of 2011 in the wake of US Attorney Michael Ormsby's declaration that all of the stores were violating federal law and must close immediately.

"The proliferation of marijuana stores, which are not authorized under state law, suggests that drug traffickers are attempting to avoid application of state law through the use of these stores," Ormsby said at the time.

There were 40 dispensaries open in April 2011 across Spokane at the time of the DEA raids.

This last November, 17 months after the DEA raids that shut down medical marijuana dispensaries across Spokane, Washington State voters overwhelmingly supported I-502, which made marijuana legal for recreational use.

While the federal government still considers marijuana a controlled substance, so far the US Attorney's office has remained silent about Washington's new recreational use law.

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