People v. Fisher
|Citation||96 Cal. App. 4th 1147, 117 Cal. Rptr. 2d 838 (2002)|
|PDF of Full Opinion||https://www.canorml.org/legal/fisher.pdf|
|Fact Summary||Law enforcement obtained a warrant to search the defendant’s residence following a flyover of the defendant’s property observing at least three marijuana plants. However, before law enforcement could execute the warrant, the defendant and presented the officers a physician’s recommendation to use medical marijuana in accordance with the Compassionate Use Act (“CUA”).|
|Summary Rule of Law||Presentation of a valid physician’s recommendation under the CUA does not require law enforcement to abandon a search for marijuana authorized by a search warrant because the CUA only provides an affirmative defense to be proven by the defendant at trial.|
|Facts & Procedure||Based on a flyover of the defendant’s property observing at least three marijuana plants, law enforcement obtained a search warrant to search the defendant’s residence for marijuana. 96 Cal. App. 4th at 1149. “Before [law enforcement] could execute the warrant, defendant acknowledged that the marijuana behind the residence was his” and presented the officers a physician’s recommendation to use medical marijuana in accordance with the CUA. Id. at 1149. Nevertheless, law enforcement proceeded with the search which “revealed additional marijuana, as well as a cane sword and ammunition.” Id.
The defendant moved to suppress the evidence under Penal Code section 1538.5, “arguing that, once the officers were shown the certificate, probable cause for the search no longer existed.” Id. at 1150. The trial court denied the motion and a jury subsequently convicted the defendant of “unlawful possession of the cane sword and the ammunition” but acquitted him of all the marijuana charges. Id.
|Issue(s)||Does a resident’s presentation of a valid physician’s recommendation under the CUA require law enforcement to abandon a search for marijuana authorized by a search warrant?|
|Holding(s)||A resident’s presentation of a valid physician’s recommendation under the CUA does not require law enforcement to abandon a search for marijuana authorized by a search warrant. 6 Cal. App. 4th at 1151. “Because the exception provided by [the CUA] does not constitute any part of the definition of the offenses described by sections 11357 and 11358, the exception constitutes an affirmative defense to be proven by the defendant at trial.” Id. at 1151−52. This conclusion comports with the rebuttal argument against [the CUA] in the initiative’s ballot pamphlet, stating: “‘Police officers can still arrest anyone for marijuana offenses. [The CUA] simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor’s approval.’” Id. at 1152 (citing California Ballot Pamphlet: General Election November 5, 1996 at 61 (1996)) (emphasis added by the court). “Investigation of the truth and legal effect of” an affirmative defense is done through motions and trials; “to hold otherwise would create disorder and confusion.” Id.|
|Discussion||Decided nearly six years after the enactment of the CUA, Fisher finally begins the process of resolving how the CUA operates as a matter of criminal procedure by stating conclusively the CUA offers an “affirmative defense.” Up to this point all of the appellate decisions involved defendants that had been arrested prior to the enactment of the CUA (Trippet and Rigo), prior to possessing a physician’s recommendation (Rigo and Bianco), or for an offense not explicitly listed in the CUA (Trippet and Young). Although the Trippet decision refers to “partial defense” and “defense to prosecution”, before Fisher one could argue the CUA provides immunity from arrest or search by distinguishing Trippet on the fact that the Trippet defendant was arrested pre-CUA when the immunity would not have been available.
Nevertheless, what Fisher started with the “affirmative defense” interpretation, the Supreme Court of California finished four months later in People v. Mower, 28 Cal. 4th 457, 49 P.3d 1067 (2002). On that note, what Fisher started with regard to physician’s recommendations and search warrants People v. Strasburg, 148 Cal. App. 4th 1052, 56 Cal. Rptr. 3d 306 (2007), finished with regard to physician’s recommendations and frisk searches.