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Here is Oregon legal citations
http://www.leg.state.or.us/ors/475.html
Chapter 475 — Controlled Substances; Illegal Drug Cleanup; Paraphernalia; Precursors
475.059 Classification of marijuana
OREGON MEDICAL MARIJUANA ACT
Last edited by james sr (2011-08-22 02:17:25)
Must have a oregon card before being arrested, and no residency requirements per operative language.
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FILED: April 14, 2010
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOEL DENNIS BERRINGER,
Defendant-Appellant.
Clackamas County Circuit Court
CR0602030
A137186
Ronald D. Thom, Judge.
Argued and submitted on September 24, 2009.
Leland R. Berger argued the cause and filed the brief for appellant.
Amanda J. Austin, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.
Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.
SCHUMAN, J.
Affirmed.
SCHUMAN, J.
Defendant appeals his conviction for unlawful possession of marijuana, ORS 475.864, assigning error to the trial court's denial of his motion to suppress and his motion to dismiss. In the motion to suppress, defendant argued that probable cause to arrest him dissipated once he showed the arresting Clackamas County deputy a document establishing that defendant, a California resident, was qualified to possess marijuana under California's medical marijuana laws. According to defendant, that document should have informed the arresting officer that the arrest violated two provisions of the United States Constitution: the Full Faith and Credit Clause, which, he argued, requires Oregon to honor the immunity from prosecution that is conferred on him by California law; and the Privileges and Immunities Clause, which prohibits Oregon from enforcing its possession of marijuana laws against him because doing so inhibits his right to travel from state to state. Defendant also made similar arguments in a motion to dismiss, which the trial court also denied. We affirm.
The following facts are undisputed. Defendant was stopped for speeding in Clackamas County by Deputy Sheriff Nashif. As he neared the automobile, Nashif smelled "unburnt" marijuana and saw a digital scale and marijuana residue inside. In response to Nashif's questions, defendant initially denied possessing any marijuana, but ultimately gave Nashif a paper bag that contained five smaller bags, two of which appeared to Nashif to contain more than one ounce of marijuana. Defendant also presented a document to Nashif entitled "Physician's Statement," in which his doctor, a California licensed physician, recommended that defendant use medical cannabis at the estimated rate of 1.5 ounces per week to treat various health concerns including anxiety due to a "troubled history with father," heavy drinking, headaches, asthma, and bad moods. Under California law, that document, if authentic, apparently allows defendant to possess up to two pounds of marijuana.(1) Nashif arrested defendant and then searched his automobile, finding what a crime lab report subsequently found to be 922.9 grams of marijuana, approximately 26.9 grams more than two pounds.
Defendant was indicted on one charge of unlawful possession of marijuana, ORS 475.864, one charge of unlawful delivery of marijuana, ORS 475.860, and one charge of unlawful manufacture of marijuana, ORS 475.856. At a pretrial hearing, defendant argued that, upon presenting the California physician's recommendation to Nashif, probable cause for the arrest and search dissipated. He conceded that he was lawfully stopped for speeding, and he raised no argument that the search of his automobile violated Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution for any reason beyond the asserted fact that it occurred after probable cause had dissipated. In other words, he conceded that, if probable cause did not dissipate, the search was otherwise lawful. Defendant also argued that the recommendation from his California physician was due full faith and credit in Oregon and that failure to honor his California documentation and status as a medical marijuana patient interfered with his constitutional right to travel. The court denied the motion to suppress, as well as a motion to dismiss based on the same arguments. Defendant then conditionally pleaded guilty based on stipulated facts, reserving his right to appeal the court's denial of his pretrial motions, ORS 135.335(3), and was subsequently convicted of unlawful possession of marijuana. The other counts were dismissed. This appeal ensued.
Defendant argues that, once he showed the physician's recommendation to the deputy, "there no longer was probable cause to support the continued investigation," and that, therefore, all evidence discovered thereafter should have been suppressed as the fruit of the unlawfully extended detention. Probable cause requires that an officer's belief that the defendant has committed an offense be objectively reasonable. State v. Miller, 345 Or 176, 186, 191 P3d 651 (2008). "A stop that begins lawfully can become unlawful when the reason for the stop has dissipated." State v. Castrejon, 79 Or App 514, 520, 719 P2d 916 (1986) (citation omitted); see also State v. Farley, 308 Or 91, 775 P2d 835 (1989).
In this case, Nashif's authority to investigate the lawfulness of defendant's possession of marijuana did not end when he saw defendant's California physician's recommendation. Probable cause exists when a law enforcement officer reasonably believes that, more likely than not, the suspect has committed an offense. Miller, 345 Or at 186. Defendant does not dispute that Nashif observed defendant with what the deputy reasonably believed to be more than an ounce of marijuana. Under Oregon law, Nashif at that point had probable cause to detain defendant. ORS 475.864.(2) Defendant contends, however, that, based entirely on Nashif's observation of a document captioned "Physician's Statement," signed (but not sealed or notarized) by a person who identified himself as a licensed physician in California, Nashif's belief that defendant was not immune from prosecution under Oregon law for possession became immediately unreasonable. We disagree. A person in Nashif's position could reasonably believe that, more likely than not, (1) defendant's unnotarized "physician's statement" was not genuine, (2) a physician's statement was not the California equivalent to an "Oregon Medical Marijuana Act" (OMMA) card, (3) California law does not immunize defendant in Oregon (a belief that, in the present case, we decide is correct), or (4) possession of California medical marijuana documentation made the possessor immune from prosecution, but not immune from arrest--which, in fact, is correct even in California, see People v. Mower, 28 Cal 4th 457, 469, 49 P3d 1067, 1074 (2002) (California Compassionate Use Act (CCUA) is a defense to possession of marijuana prosecution; CCUA "does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest").
Further, the legal arguments underlying defendant's motion to suppress--that the Full Faith and Credit Clause and the Privileges and Immunity Clause preclude his arrest and prosecution--are wrong. Article IV, section 1, of the United States Constitution provides, "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." Defendant argues that this clause requires Oregon to apply the CCUA, a "public act," to California residents when they are in Oregon. According to defendant, Oregon must do so because one state's laws apply in a sister state unless the home state law "conflicts" with the host state's law, and California's medical marijuana law does not conflict with Oregon's medical marijuana law. The state, citing Franchise Tax Bd. of Cal. v. Hyatt, 538 US 488, 494, 123 S Ct 1683, 155 L Ed 2d 702 (2003), responds that the clause "does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." We need not decide which interpretation applies in this case, however, because defendant's argument is fundamentally misconceived. Even if defendant could persuade us that the clause means what he says it does, it would avail him nothing. The CCUA by its terms provides nothing more than a defense against the enforcement of certain California marijuana laws:
"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 patient's 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."
California Health and Safety Code § 11362.5(d). The CCUA does not (and could not) provide a defense against enforcement of Oregon's marijuana laws in Oregon. Put another way, the Full Faith and Credit Clause requires (at most) that a state give effect to rights established between parties that arise from judgments, agreements, or statutes originating in other states. See Delehant v. Board on Police Standards, 317 Or 273, 282, 855 P2d 1088 (1993). The CCUA establishes (again, at most) rights between qualified California residents and the state of California--not the state of Oregon. Thus, in this case, Oregon does give full faith and credit to the CCUA, because Oregon does not (and could not) enforce California's marijuana laws against defendant.
Finally, defendant argues that, in enforcing Oregon's law against possession of marijuana, the state violated his right to travel from state to state. He relies on cases holding that a state violates that right when it imposes burdens on nonresidents that it does not impose on residents. In the present case, he argues, Oregon provides its own residents with an immunity from some possession of marijuana prosecutions, while withholding that immunity from nonresidents. For the reasons that follow, we reject that argument.
Although not named in the constitution, a right of interstate travel undoubtedly exists: " By virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the 'Privileges and Immunities of Citizens in the several States' that he visits." Saenz v. Roe, 526 US 489, 501, 119 S Ct 1518, 143 L Ed 2d 689 (1999) (quoting US Const, Art IV, § 2). The source of this right in the constitution has never been identified definitively. Saenz locates it in the Privileges and Immunities Clause of Article IV, section 2, as do several other cases. E.g., Toomer v. Witsell, 334 US 385, 395, 68 S Ct 1156, 92 L Ed 1460 (1948); Hague v. C.I.O., 307 US 496, 511, 59 S Ct 954, 83 L Ed 1423 (1939). Other cases rely on the Equal Protection Clause under the theory that the right to travel from state to state is so fundamental that a state cannot enact statutes that discriminate between state residents and nonresidents and thereby discourage the influx of the latter. E.g., Memorial Hospital v. Maricopa County, 415 US 250, 251, 94 S Ct 1076, 39 L Ed 2d 306 (1974). Yet other cases candidly acknowledge that there is no need "to ascribe the source of this right to travel interstate to a particular constitutional provision." Shapiro v. Thompson, 394 US 618, 630, 89 S Ct 1322, 22 L Ed 2d 600 (1969), overruled on other grounds, Edelman v. Jordan, 415 US 651, 671, 94 S Ct 1347, 39 L Ed 2d 662 (1974).
In some respects, the contours of the right of interstate travel are as vague as its source. For example, a state statute that taxes nonresident commercial fishermen for the right to fish in the state's waters at a rate that is significantly greater than the rate imposed on residents is unconstitutional, Toomer, 334 US at 403, but a state statute that charges nonresidents more than residents for a recreational hunting license is not, Baldwin v. Montana Fish and Game Comm'n, 436 US 371, 391, 98 S Ct 1852, 56 L Ed 2d 354 (1978). It is clear, however, that access to medical treatment is among the interstate traveler's protected rights. Saenz, 526 US at 502 (constitution provides "important protections for nonresidents who enter a State * * * to procure medical services"); Memorial Hospital, 415 US at 269 (invalidating one-year durational residence requirement for access to publicly funded nonemergency hospitalization and medical care); Doe v. Bolton, 410 US 179, 200, 93 S Ct 739, 35 L Ed 2d 201 (1973) (invalidating residence requirement to obtain abortion).
Unlike the residence requirements struck down in Memorial Hospital, Doe, and Shapiro (durational residence requirement to receive welfare), the OMMA does not impose any requirement on nonresident applicants that it does not also impose on Oregon residents. It is true that the "findings" section of the OMMA refers to "Oregonians" with debilitating medical conditions and states that they "should be allowed to use small amounts of marijuana without fear of civil or criminal penalties," ORS 475.300(2), and "discuss freely with their doctors the possible risks and benefits of medical marijuana," ORS 475.300(3). Those provisions are merely hortatory. The operational provisions of the OMMA and its implementing regulations apply with equal rigor to residents and nonresidents. Residents and nonresidents alike must either possess or have applied for an OMMA registration card. ORS 475.309(1)(a). Both must have documentation from the attending physician, attesting that the person has "a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects" of the condition. ORS 475.309(2). Both must pay the same registration fee. Id.
There are only two respects in which the OMMA could be considered to impose a barrier to nonresidents. The first is that the attending physician must be "licensed under ORS chapter 677." However, that chapter has reciprocity provisions allowing nonresident physicians to obtain Oregon licenses. ORS 677.120; ORS 677.125. Further, an "attending physician" is one who has "primary responsibility" for the care of the applicant, ORS 475.302(1), including an Oregon-licensed physician who "[p]rovides medical specialty care and treatment to the patient," OAR 333-008-0010(18)(b). Thus, a nonresident applicant need not establish a long-term relationship with an Oregon physician. In any event, we have found no authority for the proposition that the difficulty a nonresident might encounter in finding an Oregon attending physician could be considered an impediment of constitutional magnitude.
Second, an applicant for an OMMA registration card must provide identification. OAR 333-008-0020(1) provides:
"A person may apply for a registry identification card * * *. In order for an application to be considered complete, an applicant must submit the following:
"* * * * *
"(b) Copies of legible photographic identification * * *. The following are acceptable forms of identification:
"(A) Oregon Driver's License;
"(B) Oregon Identification Card with photo;
"(C) Voter Registration Card with photo[.]"
Thus, if the list of documents in OAR 333-008-0020(1)(b) is exhaustive--that is, if the documents in (A), (B), and (C) are the only acceptable photographic identification documents--then it is easier for an Oregon resident to submit a complete application than for a nonresident, because the resident has three options while the nonresident has only one, and even then, only if he or she lives in a state that has a voter registration card with photo. However, nothing in the text of OAR 333-008-0020(1)(b) establishes that the list is exhaustive. The language is ambiguous, and, in order to avoid even the possibility of constitutional infirmity, State v. Rodriguez, 217 Or App 24, 34, 175 P3d 471 (2007), we interpret the list as nonexhaustive, that is, as a list of documents that are conclusively acceptable but not as a complete list of all photo identification cards that can be acceptable.
Further, even if Oregon law made access to medical marijuana more difficult for nonresidents, that would not violate defendant's right to travel. As the Supreme Court has explained:
"Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally."
Baldwin, 436 US at 383. Although access to publicly funded medical care, Memorial Hospital, and abortion services, Doe, have been held to fall into the latter category, we conclude that access to a particular form of treatment--in this case, access to a particular drug--is not a privilege "bearing upon the vitality of the Nation as a single entity." Defendant's motion to dismiss relies on the same faulty constitutional arguments as his motion to suppress. Even if that motion were cognizable, it would fail for the same reasons that the motion to suppress failed.(3)
Affirmed.
1. California Health and Safety Code, section 11362.77, of the California Compassionate Use Act, provides:
"(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient.
"* * * * *
"(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a)."
Nevada County, in turn, provides the following guidelines concerning the amount of marijuana that a qualified patient may possess:
"Based upon verification of a valid oral or written recommendation and absent evidence of sales or possession for sale, a person with such a recommendation from a physician shall be allowed to possess up to two pounds of dried marijuana per qualified patient consistent with that patient's recommendation.
"* * * * *
"A qualified patient or primary caregiver may possess an amount greater than listed if the amount is reasonably related to, and consistent with, the patient's documented recommendation."
Nevada County, Cal, Medical Marijuana Inter-Agency Protocol (June 2007), 3-4 (boldface in original). Defendant, a Nevada County resident, argues that, because his physician's recommendation allowed him to use medical marijuana at the rate of 1.5 ounces per week and 4.9 pounds per year, he was entitled, under California law and as a Nevada County resident, to possess, in Oregon, more than the two pounds of marijuana seized from his vehicle.
Return to previous location.
2. ORS 475.864 provides, in part:
"(1) It is unlawful for any person knowingly or intentionally to possess marijuana.
"(2) Unlawful possession of marijuana is a Class B felony.
"(3) Notwithstanding subsection (2) of this section, unlawful possession of marijuana is a violation if the amount possessed is less than one avoirdupois ounce of the dried leaves, stems and flowers of the plant Cannabis family Moracceae. A violation under this subsection is punishable by a fine of not less than $500 and not more than $1,000."
Return to previous location.
3. Neighboring states, with their own medical marijuana laws, have recently reached similar conclusions. State v. Adler, 108 Haw 169, 176, 118 P3d 652, 659 (2005); State v. Tracy, 158 Wash 2d 683, 147 P3d 559 (2006); State v. Barber, 141 Wash App 1039, 2007 WL 4125229 (Wash App Div 3, Nov 20, 2007). Also, some states have medical marijuana laws that specifically extend protections to patients who obtain registry identification cards or other functionally equivalent authority from their resident states. E.g., Mont Code Ann § 50-46-201(8); RI Gen Laws § 21-28.6-4(k).
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Last edited by james sr (2011-08-22 02:22:58)
Oregon law "mandates" cannabis is property of cardholder
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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.
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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.
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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.
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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).
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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).
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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
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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.
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Accordingly, I dissent.
EMERALD STEEL FABRICATORS, INC. v. BOLI OF LABOR AND INDUSTRIES
230 P.3d 518 (2010)
348 Or. 159
EMERALD STEEL FABRICATORS, INC., Petitioner on Review,
v.
BUREAU OF LABOR AND INDUSTRIES, Respondent on Review.
(BOLI 3004; CA A130422; SC S056265).
Supreme Court of Oregon, En Banc.
Argued and Submitted March 6, 2009.
Decided April 15, 2010.
Terence J. Hammons, of Hammons & Mills, Eugene, argued the cause and filed the brief for petitioner on review.
Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.
Paula A. Barran, of Barran Liebman LLP, Portland, filed the brief for amicus curiae Associated Oregon Industries.
James N. Westwood, of Stoel Rives LLP, Portland, filed the brief for amici curiae Pacific Legal Foundation and National Federation of Independent Business. With him on the brief was Deborah J. La Fetra.
--------------------------------------------------------------------------------
KISTLER, J.
The Oregon Medical Marijuana Act authorizes persons holding a registry identification card to use marijuana for medical purposes. ORS 475.306(1). It also exempts those persons from state criminal liability for
[ 230 P.3d 520 ]
manufacturing, delivering, and possessing marijuana, provided that certain conditions are met. ORS 475.309(1). The Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. Gonzales v. Raich,545 U.S. 1, 29, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative,532 U.S. 483, 486, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana).
The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition. The Court of Appeals declined to reach that question, reasoning that employer had not preserved it. Emerald Steel Fabricators, Inc. v. BOLI,220 Or.App. 423, 186 P.3d 300 (2008). We allowed employer's petition for review and hold initially that employer preserved the question that it sought to raise in the Court of Appeals. We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana. Accordingly, we reverse the Court of Appeals decision.
Since 1992, employee has experienced anxiety, panic attacks, nausea, vomiting, and severe stomach cramps, all of which have substantially limited his ability to eat. Between January 1996 and November 2001, employee used a variety of prescription drugs in an attempt to alleviate that condition. None of those drugs proved effective for an extended period of time, and some had negative effects. In 1996, employee began using marijuana to self-medicate his condition.
In April 2002, employee consulted with a physician for the purpose of obtaining a registry identification card under the Oregon Medical Marijuana Act. The physician signed a statement that employee has a "debilitating medical condition" and that "m]arijuana may mitigate the symptoms or effects of this patient's condition." The statement added, however, "This is not a prescription for the use of medical marijuana." The statement that employee's physician signed tracks the terms of the Oregon Medical Marijuana Act. That act directs the state to issue registry identification cards to persons when a physician states that "the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects" of that condition. ORS 475.309(2).1 No prescription is required as a prerequisite for obtaining a registry identification card. See id.
Based on the physician's statement, employee obtained a registry identification card in June 2002, which he renewed in 2003.2 That card authorized employee to "engage in the medical use of marijuana" subject to certain restrictions. ORS 475.306(1). Possession of the card also exempted him from state criminal prosecution for the possession, distribution, and manufacture of marijuana, provided that he met certain conditions. ORS 475.309(1).
Employer manufactures steel products. In January 2003, employer hired employee on a temporary basis as a drill press operator. While working for employer, employee used medical marijuana one to three times per day, although not at work. Employee's work was satisfactory, and employer was considering hiring him on a permanent basis.
[ 230 P.3d 521 ]
Knowing that he would have to pass a drug test as a condition of permanent employment, employee told his supervisor that he had a registry identification card and that he used marijuana for a medical problem; he also showed his supervisor documentation from his physician. In response to a question from his supervisor, employee said that he had tried other medications but that marijuana was the most effective way to treat his condition. Neither employee's supervisor nor anyone else in management engaged in any other discussion with employee regarding alternative treatments for his condition. One week later, the supervisor discharged employee.
Two months later, employee filed a complaint with the Bureau of Labor and Industries (BOLI), alleging that employer had discriminated against him in violation of ORS 659A.112. That statute prohibits discrimination against an otherwise qualified person because of a disability and requires, among other things, that employers "make reasonable accommodation" for a person's disability unless doing so would impose an undue hardship on the employer. ORS 659A.112(2)(e). Having investigated employee's complaint, BOLI filed formal charges against employer, alleging that employer had discharged employee because of his disability in violation of ORS 659A.112(2)(c) and (g) and that employer had failed to reasonably accommodate employee's disability in violation of ORS 659A.112(2)(e) and (f). Employer filed an answer and raised seven affirmative defenses.
After hearing the parties' evidence, an administrative law judge (ALJ) issued a proposed order in which he found that employee was a disabled person within the meaning of ORS chapter 659A but that employer had not discharged employee because of his disability. The ALJ found instead that employer had discharged employee because he used marijuana and ruled that discharging employee for that reason did not violate ORS 659A.112(2)(c) or (g). The ALJ went on to rule, however, that employer had violated ORS 659A.112(2)(e) and (f), which prohibit an employer from failing to reasonably accommodate the "known physical or mental limitations of an otherwise qualified disabled person," and from denying employment opportunities to an otherwise qualified disabled person when the denial is based on the failure "to make reasonable accommodation to the physical or mental impairments of the employee."
Among other things, the ALJ ruled that employer's failure to engage in a "meaningful interactive process" with employee, standing alone, violated the obligation set out in ORS 659A.112(2)(e) and (f) to reasonably accommodate employee's disability. The ALJ also found that employee had suffered damages as a result of those violations, and the commissioner of BOLI issued a final order that adopted the ALJ's findings in that regard.
Employer sought review of the commissioner's order in the Court of Appeals. As we understand employer's argument in the Court of Appeals, it ran as follows: Oregon law requires that ORS 659A.112 be interpreted consistently with the federal Americans with Disabilities Act (ADA), 42 USC § 12101 et seq. Section 12114(a) of the ADA provides that the protections of the ADA do not apply to persons who are currently engaged in the illegal use of drugs, and the federal Controlled Substances Act prohibits the possession of marijuana without regard to whether it is used for medicinal purposes. It follows, employer reasoned, that the ADA does not apply to persons who are currently engaged in the use of medical marijuana. Like the ADA, ORS 659A.124 provides that the protections of ORS 659A.112 do not apply to persons who are currently engaged in the illegal use of drugs. Employer reasoned that, if ORS 659A.112 is interpreted consistently with the ADA, then ORS 659A.112 also does not apply to persons who are currently engaged in medical marijuana use. Employer added that, in any event, the United States Supreme Court's opinion in Raich and the Supremacy Clause required that interpretation.
The Court of Appeals did not reach the merits of employer's argument. It concluded that employer had not presented that argument to the agency and thus had not preserved it. Accordingly, we begin with the question whether employer preserved the issues
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before BOLI that it sought to raise in the Court of Appeals.
Employer raised seven affirmative defenses in response to BOLI's complaint. The fifth affirmative defense alleged:
"Oregon law prescribes that ORS 659A.112 be construed to the extent possible in a manner that is consistent with any similar provisions of the Federal Americans with Disabilities Act of 1990, as amended. That Act does not permit the use of marijuana because marijuana is an illegal drug under Federal Law."
That affirmative defense is broad enough to encompass the argument that employer made in the Court of Appeals. To be sure, employer's fifth affirmative defense does not refer specifically to ORS 659A.124. However, it alleges that the ADA does not apply to persons who use marijuana, a proposition that necessarily depends on both 42 USC § 12114(a), the federal counterpart to ORS 659A.124, and the Controlled Substances Act. And the fifth affirmative defense also states that ORS 659A.112 should be construed in the same manner as the ADA. Although employer could have been more specific, its fifth affirmative defense is sufficient to raise the statutory issue that it sought to argue in the Court of Appeals.3
Ordinarily, we would expect that employer would have developed the legal arguments in support of its fifth affirmative defense more fully at the agency hearing. However, the Court of Appeals issued its decision in Washburn v. Columbia Forest Products, Inc.,197 Or.App. 104, 104 P.3d 609 (2005), two weeks before the hearing in this case, and employer concluded that the reasoning in Washburn foreclosed its fifth affirmative defense. The Court of Appeals held in Washburn that an employer's failure to accommodate an employee's use of medical marijuana violated ORS 659A.112. In reaching that holding, the Court of Appeals decided two propositions that bore on the validity of employer's fifth affirmative defense. First, it reasoned that the requirement in ORS 659A.139 to interpret ORS 659A.112 consistently with the ADA does not require absolute symmetry between state and federal law. Id. at 109-10, 104 P.3d 609. Second, it held that, as a matter of state law, the employee's medical use of marijuana was "not unlawful" for the purposes of a federal statute that prohibits the use of illegal drugs in the workplace. Id. at 114-15, 104 P.3d 609. The court noted that the question "[whether medical use of marijuana is unlawful under federal law is an open question" and that the United States Supreme Court had granted the government's petition for certiorari in Raich to decide that question. Id. at 115 n. 8, 104 P.3d 609.
At the hearing in this case, employer told the ALJ that five of its affirmative defenses (including the fifth affirmative defense) were "foreclosed by the Washburn decision" but that it was "not withdrawing them." Employer did not explain the basis for that position. We note, however, that the Court of Appeals' conclusion in Washburn that ORS 659A.139 does not require absolute symmetry between the state and federal antidiscrimination statutes and its conclusion that medical marijuana use is "not unlawful" under state law effectively foreclosed reliance on ORS 659A.139 and ORS 659A.124 as a basis for employer's fifth affirmative defense. There would be little point in arguing before the ALJ that employee was currently engaged in the illegal use of drugs if, as the Court of Appeals had just stated in Washburn, the use of medical marijuana is not illegal.4 The ALJ issued a proposed order in which it ruled that the Court of Appeals decision in Washburn controlled, among other things, employer's fifth affirmative defense.
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After the ALJ filed his proposed order, the United States Supreme Court issued its decision in Raich and held that Congress had acted within its authority under the Commerce Clause in prohibiting the possession, manufacture, and distribution of marijuana even when state law authorizes its use for medical purposes. 545 U.S. at 33, 125 S.Ct. 2195. Raich addressed the question that the Court of Appeals had described in Washburn as open—whether using marijuana, even for medical purposes, is unlawful under federal law. Employer filed a supplemental exception based on Raich and alternatively a request to reopen the record to consider Raich. Employer argued that, as a result of Raich, "states may not authorize the use of marijuana for medicinal purposes" and that "[t]he impact of this decision is that [employer] should prevail on its Fourth and Fifth Affirmative Defenses."
BOLI responded that the ALJ should not reopen the record. It reasoned that Raich did not invalidate Oregon's medical marijuana law and that, in any event, employer could have raised a preemption argument before the Court issued its decision in Raich. Employer replied that, as it read Raich, the "Supreme Court has ruled that legalization of marijuana is preempted by federal law. This obviously invalidates the Oregon Medical Marijuana Act." Employer also explained that it had raised this issue in its fourth and fifth affirmative defenses, which "recited] that marijuana is an illegal drug under federal law, and that state law deferred to federal law." After considering the parties' arguments, the ALJ allowed employer's motion to reopen the record, stating that "[t]he forum will consider the Supreme Court's ruling in Raich to the extent that it is relevant to [employer's] case." Later, the Commissioner ruled that the Controlled Substances Act, which was at issue in Raich, did not preempt the Oregon Medical Marijuana Act.
As we read the record, employer took the position before the agency that, like the protections of the federal ADA, the protections of ORS 659A.112 do not apply to a person engaged in the use of illegal drugs, a phrase that, as a result of controlling federal law, includes the use of medical marijuana. We conclude that employer's arguments were sufficient to preserve the issue that it sought to raise on judicial review in the Court of Appeals. To be sure, employer's fifth affirmative defense, as pleaded, turned solely on a question of statutory interpretation. Employer did not raise the preemption issue or argue that federal law required a particular reading of Oregon's statutes until employer asked the ALJ to reopen the record to consider Raich. Perhaps the ALJ could have declined to reopen the record. However, once the ALJ chose to reopen the record and the Commissioner chose to address employer's preemption arguments based on Raich, then employer's federal preemption arguments were also properly before the agency.5
As noted, the Court of Appeals reached a different conclusion regarding preservation, and we address its reasoning briefly. The Court of Appeals reasoned that, in telling the ALJ that Washburn foreclosed its affirmative defenses, employer adopted the specific defenses that the employer in Washburn had asserted and that employer was now limited to those defenses. 220 Or.App. at 437, 186 P.3d 300. The difficulty, the Court of Appeals explained, was that the statutory issues that employer had raised in its affirmative defenses and sought to raise on judicial review differed from the issues that the employer had raised in Washburn. Id.
In our view, the Court of Appeals misperceived the import of what employer told the ALJ. Employer reasonably acknowledged that the reasoning in Washburn controlled the related but separate defenses that it was
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raising in this case. Employer did not say that it was advancing the same issues that the employer had asserted in Washburn, and the Court of Appeals erred in holding otherwise.
The Court of Appeals also concluded that employer had not preserved its argument regarding the preemptive effect of the Controlled Substances Act, as interpreted in Raich. Emerald Steel, 220 Or.App. at 437-38, 186 P.3d 300. It noted that, on judicial review, employer argued that federal law required its interpretation of Oregon's antidiscrimination statutes while it had argued before the agency that federal law preempted the Oregon Medical Marijuana Act. Id. We read the record differently. As explained above, employer made both arguments before the agency.6
Having concluded that employer preserved the issues it sought to raise on judicial review, we turn to the merits of those issues.7 Employer's statutory argument begins with ORS 659A.124(1), which provides that "the protections of ORS 659A.112 do not apply to any employee who is currently engaging in the illegal use of drugs if the employer takes action based on that conduct."8 It follows, employer reasons, that it had no obligation under ORS 659A.112(2)(e) and (f) to reasonably accommodate employee's medical marijuana use. In responding to that argument on the merits, BOLI does not dispute that employee was currently engaged in the use of medical marijuana, nor does it dispute that employer discharged employee for that reason. Rather, BOLI advances two arguments why ORS 659A.124 does not support employer's position.
As we understand BOLI's first argument, it contends that, because the commissioner found that employer had violated ORS 659A.112(2)(e) and (f) by failing to engage in a "meaningful interactive process," ORS 659A.124 is inapposite. We reach precisely the opposite conclusion. The commissioner explained that engaging in a "meaningful interactive process" is the "mandatory first step in the process of reasonable accommodation" that ORS 659A.112(2)(e) and (f) require. However, ORS 659A.124 provides that "the protections of ORS 659A.112 do not apply" to an employee who is currently engaged in the illegal use of drugs, if the employer takes an adverse action based on that use. Under the plain terms of ORS 659A.124, if medical marijuana use is an illegal use of drugs within the meaning of ORS 659A.124, then ORS 659A.124 excused employer from whatever obligation it would have had under ORS 659A.112 to engage in a "meaningful interactive process" or otherwise accommodate employee's use of medical marijuana.
BOLI advances a second, alternative argument. It argues that "employee's use of medical marijuana was entirely legal under
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state law" and thus not an "illegal use of drugs" within the meaning of ORS 659A.124. BOLI recognizes, as it must, that the federal Controlled Substances Act prohibits possession of marijuana even when used for medical purposes. BOLI's argument rests on the assumption that the phrase "illegal use of drugs" in ORS 659A.124 does not include uses that are legal under state law even though those same uses are illegal as a matter of federal law. BOLI never identifies the basis for that assumption; however, a state statute defines the phrase "illegal use of drugs," as used in ORS 659A.124, and we turn to that statute for guidance in resolving BOLI's second argument.
ORS 659A.122 provides, in part:
"As used in this section and ORS 659A.124, 659A.127 and 659A.130:
"(2) `Illegal use of drugs' means any use of drugs, the possession or distribution of which is unlawful under state law or under the federal Controlled Substances Act, 21 U.S.C.A. 812, as amended, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law."9
The definition of "illegal use of drugs" divides into two parts. The first part defines the drugs that are included within the definition—all drugs whose use or possession is unlawful under state or federal law. Marijuana clearly falls within the first part of the definition. The second part of the definition excludes certain uses of what would otherwise be an illegal use of a drug. Two exclusions are potentially applicable here: (1) the exclusion for "uses authorized under other provisions of state law" and (2) the exclusion for "the use of a drug taken under supervision of a licensed health care professional." We consider each exclusion in turn.
We begin with the question whether employee's use of medical marijuana is a "use] authorized under other provisions of state law." We conclude that, as a matter of statutory interpretation, it is an authorized use. The Oregon Medical Marijuana Act affirmatively authorizes the use of medical marijuana, in addition to exempting its use from state criminal liability. Specifically, ORS 475.306(1) provides that "[a person who possesses a registry identification card may engage in the medical use of marijuana" subject to certain restrictions. ORS 475.302(10), in turn, defines a registry identification card as "a document that identifies a person authorized to engage in the medical use of marijuana." Reading those two subsections together, we conclude that ORS 475.306(1) affirmatively authorizes the use of marijuana for medical purposes10 and, as a statutory matter, brings the use of medical marijuana within one of the exclusions from the "illegal use of drugs" in ORS 659A.122(2).11
[ 230 P.3d 526 ]
Employer argues, however, that the Supremacy Clause of the United States Constitution requires that we interpret Oregon's statutes consistently with the federal Controlled Substances Act. We understand employer's point to be that, to the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection and that, without any effective state law authorizing the use of medical marijuana, employee's use of that drug was an "illegal use of drugs" within the meaning of ORS 659A.124.12 We turn to that question and begin by setting out the general principles that govern preemption. We then discuss the federal Controlled Substances Act and finally turn to whether the Controlled Substances Act preempts the Oregon Medical Marijuana Act to the extent that state law affirmatively authorizes the use of medical marijuana.
The United States Supreme Court recently summarized the general principles governing preemption:
"Our inquiry into the scope of a statute's pre-emptive effect is guided by the rule that `"[t]he purpose of Congress is the ultimate touchstone" in every pre-emption case.' Medtronic, Inc. v. Lohr,518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Retail Clerks v. Schermerhorn,375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Congress may indicate a pre-emptive intent through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co.,430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977).Preemptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick,514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995).
"When addressing questions of express or implied pre-emption, we begin our analysis `with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp.,331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)."
Altria Group, Inc. v. Good, ___ U.S. ___, ___, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008).
With those principles in mind, we turn to the Controlled Substances Act. The central objectives of that act "were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels." Raich, 545 U.S. at 12-13, 125 S.Ct. 2195 (footnotes omitted). To accomplish those objectives, Congress created a comprehensive, closed regulatory regime that criminalizes the unauthorized manufacture, distribution, dispensation, and possession of controlled substances classified in five schedules. Id. at 13, 125 S.Ct. 2195.
The Court has explained that:
"Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. [21 U.S.C.] § 812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological
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or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. [21 U.S.C.] § 812(b)."
Id. at 14, 125 S.Ct. 2195. Consistent with Congress's determination that the controlled substances listed in Schedule II through V have currently accepted medical uses, the Controlled Substances Act authorizes physicians to prescribe those substances for medical use, provided that they do so within the bounds of professional practice. See United States v. Moore,423 U.S. 122, 142-43, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975).13 By contrast, because Schedule I controlled substances lack any accepted medical use, federal law prohibits all use of those drugs "with the sole exception being use of [Schedule I] drug[s] as part of a Food and Drug Administration preapproved research project." Raich, 545 U.S. at 14, 125 S.Ct. 2195; see 21 U.S.C. § 823(f) (recognizing that exception for the use of Schedule I drugs).
Congress has classified marijuana as a Schedule I drug, 21 U.S.C. § 812(c), and federal law prohibits its manufacture, distribution, and possession, 21 U.S.C. § 841(a)(1). Categorizing marijuana as a Schedule I drug reflects Congress's conclusion that marijuana "lacks] any accepted medical use, and [that there is an] absence of any accepted safety for use in medically supervised treatment." Raich, 545 U.S. at 14, 125 S.Ct. 2195 (citing 21 U.S.C. § 812(b)(1)). Consistently with that classification, the Court has concluded that the Controlled Substances Act does not contain a "medical necessity" exception that permits the manufacture, distribution, or possession of marijuana for medical treatment. Oakland Cannabis Buyers' Cooperative, 532 U.S. at 494 and n. 7, 121 S.Ct. 1711.14 Despite efforts to reclassify marijuana, it has remained a Schedule I drug since the enactment of the Controlled Substances Act. See Raich, 545 U.S. at 14-15 and n. 23, 125 S.Ct. 2195 (summarizing "considerable efforts," ultimately unsuccessful, to reschedule marijuana).
Section 903 of the Controlled Substances Act addresses the relationship between that act and state law. It provides:
"No provision of this subchapter shall be construed as indicating an intent on the part of the 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 of this subchapter and that State law so that the two cannot consistently stand together."
21 U.S.C. § 903. Under the terms of section 903, states are free to pass laws "on the same subject matter" as the Controlled Substances Act unless there is a "positive conflict" between state and federal law "so that the two cannot consistently stand together."
When faced with a comparable preemption provision, the Court recently engaged in an implied preemption analysis to determine whether a federal statute preempted state law. Wyeth v. Levine, ___ U.S. ___, ___, 129 S.Ct. 1187, 1196-1200, 173 L.Ed.2d 51 (2009).15 That is, the Court asked whether
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there is an "actual conflict" between state and federal law. An actual conflict will exist either when it is physically impossible to comply with both state and federal law or when state law "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Freightliner Corp., 514 U.S. at 287, 115 S.Ct. 1483 (quoting Hines v. Davidowitz,312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).
The Court has applied the physical impossibility prong narrowly. Wyeth, 129 S.Ct. at 1199 (so stating); id. at 1209 (Thomas, J., concurring in the judgment).16 For example, in Barnett Bank v. Nelson,517 U.S. 25, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), the question was whether "a federal statute that permits national banks to sell insurance in small towns pre-empts a state statute that forbids them to do so." Id. at 27, 116 S.Ct. 1103. Although the two statutes were logically inconsistent, the Court held that it was not physically impossible to comply with both. Id. at 31, 116 S.Ct. 1103. A national bank could simply refrain from selling insurance. See Wyeth, 129 S.Ct. at 1209 (Thomas, J., concurring in the judgment) (explaining physical impossibility test).
Under that reasoning, it is not physically impossible to comply with both the Oregon Medical Marijuana Act and the federal Controlled Substances Act. To be sure, the two laws are logically inconsistent; state law authorizes what federal law prohibits. However, a person can comply with both laws by refraining from any use of marijuana, in much the same way that a national bank could comply with state and federal law in Barnett Bank by simply refraining from selling insurance.
Because the "physical impossibility" prong of implied preemption is "vanishingly narrow," Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 228 (2000), the Court's decisions typically have turned on the second prong of implied preemption analysis—whether state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See Hines, 312 U.S. at 67, 61 S.Ct. 399 (stating test). In Barnett Bank, for example, the Court stated, as a self-evident proposition, that a state law that prohibited national banks from selling insurance when federal law permitted them to do so would stand as an obstacle to the full accomplishment of Congress's purpose, but it then added "unless, of course, that federal purpose is to grant [national] banks] only a very limited permission, that is, permission to sell insurance to the extent that state law also grants permission to do so." Barnett Bank, 517 U.S. at 31, 116 S.Ct. 1103 (emphasis in original). Having considered the text and history of the federal statute and finding no basis for implying such a limited permission, the Court held that the state statute was preempted. Id. at 35-37, 116 S.Ct. 1103.
The Court has reached the same conclusion when, as in this case, state law permits what federal law prohibits. Michigan Canners & Freezers Association v. Agricultural Marketing and Bargaining Bd.,467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984). In Michigan Canners, federal law prohibited food producers' associations from interfering with an individual food producer's decision whether to bring that individual's products to the market on his or her own or to sell them through the association. Id. at 464-65, 104 S.Ct. 2518. Michigan law on this issue generally tracked federal law; however, Michigan law permitted food producers' associations to apply to a state board for authority
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to act as the exclusive bargaining agent for all producers of a particular commodity. Id. at 466, 104 S.Ct. 2518. When the state board gave a producer's association that authority, all producers of a commodity had to adhere to the terms of the contracts that the association negotiated with food processors, even when the producer had declined to join the association. Id. at 467-68, 104 S.Ct. 2518.
In considering whether federal law preempted the Michigan law, the Court held initially that it was physically possible to comply with both state and federal law. The Court reasoned that, because the "Michigan Act is cast in permissive rather than mandatory terms—an association may, but need not, act as exclusive bargaining representative—this is not a case in which it is [physically] impossible for an individual to comply with both state and federal law." Id. at 478 n. 21, 104 S.Ct. 2518 (emphasis in original). The Court went on to conclude, however, that "because the Michigan Act authorizes producers' associations to engage in conduct that the federal Act forbids, it `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. at 478, 104 S.Ct. 2518 (quoting Hines, 312 U.S. at 67, 61 S.Ct. 399).
The preemption issue in this case is similar to the issue in Michigan Canners and Barnett Bank. In this case, ORS 475.306(1) affirmatively authorizes the use of medical marijuana. The Controlled Substances Act, however, prohibits the use of marijuana without regard to whether it is used for medicinal purposes. As the Supreme Court has recognized, by classifying marijuana as a Schedule I drug, Congress has expressed its judgment that marijuana has no recognized medical use. See Raich, 545 U.S. at 14, 125 S.Ct. 2195. Congress did not intend to enact a limited prohibition on the use of marijuana—i.e., to prohibit the use of marijuana unless states chose to authorize its use for medical purposes. Cf. Barnett Bank, 517 U.S. at 31-35, 116 S.Ct. 1103 (reaching a similar conclusion regarding the scope of the national bank act). Rather, Congress imposed a blanket federal prohibition on the use of marijuana without regard to state permission to use marijuana for medical purposes. Oakland Cannabis Buyers' Cooperative, 532 U.S. at 494 & n. 7, 121 S.Ct. 1711.
Affirmatively authorizing a use that federal law prohibits stands as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act. Michigan Canners, 467 U.S. at 478, 104 S.Ct. 2518. To be sure, state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so. But the state law at issue in Michigan Canners did not prevent the federal government from seeking injunctive and other relief to enforce the federal prohibition in that case. Rather, state law stood as an obstacle to the enforcement of federal law in Michigan Canners because state law affirmatively authorized the very conduct that federal law prohibited, as it does in this case.
To the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it "without effect." See Cipollone v. Liggett Group, Inc.,505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ("[Since our decision in McCulloch v. Maryland, 4 Wheat. 316, 427 [4 L.Ed. 579] (1819), it has been settled that state law that conflicts with federal law is `without effect.'"). Because ORS 475.306(1) was not enforceable when employer discharged employee, no enforceable state law either authorized employee's use of marijuana or excluded its use from the "illegal use of drugs," as that phrase is defined in ORS 659A.122(2) and used in ORS 659A.124. It follows that BOLI could not rely on the exclusion in ORS 659A.122(2) for "uses authorized under other provisions of state law" to conclude that medical marijuana use was not an illegal use of drugs within the meaning of ORS 659A.124.
The commissioner reached a different conclusion regarding preemption, as would the dissenting opinion. We address the commissioner's reasoning before turning to the dissent. The commissioner, for his part, adopted the reasoning from an informal Attorney General opinion, dated June 17, 2005,
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which concluded that the Controlled Substances Act does not invalidate the Oregon Medical Marijuana Act. Letter of Advice dated June 17, 2005, to Susan M. Allan, Public Health Direction, Department of Human Services. In reaching that conclusion, the Attorney General focused on those parts of the Oregon Medical Marijuana Act that either exempt medical marijuana users from state criminal liability or provide an affirmative defense to criminal charges. Id. at 2.17 In concluding that those exemptions from state criminal liability were valid, the Attorney General relied on a line of federal cases holding that "Congress cannot compel the States to enact or enforce a federal regulatory program." See Printz v. United States,521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (so stating); New York v. United States,505 U.S. 144, 162, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (stating that "the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress's instructions"). The Attorney General concluded that Oregon was free, as a matter of state law, to exempt medical marijuana use from criminal liability because Congress lacks the authority to require Oregon to prohibit that use.
The Attorney General's opinion has no bearing on the issue presented in this case for two reasons. First, as noted, one subsection of the Oregon Medical Marijuana Act affirmatively authorizes the use of medical marijuana. ORS 475.306(1). Other provisions exempt its use from state criminal liability. See, e.g., ORS 475.309(1); ORS 475.319. In this case, only the validity of the authorization matters. ORS 659A.122(2) excludes medical marijuana use from the definition of "illegal use of drugs" for the purposes of the state employment discrimination laws if state law authorizes that use. The Attorney General's opinion, however, addresses only the validity of the exemptions; it does not address the validity of the authorization found in ORS 475.306(1). It thus does not address the issue that is central to the resolution of this case.
Second, and more importantly, the validity of the exemptions and the validity of the authorization turn on different constitutional principles. The Attorney General reasoned that the exemptions from criminal liability are valid because "Congress cannot compel the States to enact or enforce a federal regulatory program"—a restriction that derives from Congress's limited authority under the federal constitution. See Printz, 521 U.S. at 935, 117 S.Ct. 2365 (stating limited authority); New York, 505 U.S. at 161-66, 112 S.Ct. 2408 (describing the sources of that limitation). Under the Attorney General's reasoning and the United States Supreme Court decisions on which his opinion relies, Congress lacks authority to require states to criminalize conduct that the states choose to leave unregulated, no matter how explicitly Congress directs the states to do so.
By contrast, there is no dispute that Congress has the authority under the Supremacy Clause to preempt state laws that affirmatively authorize the use of medical marijuana. Whether Congress has exercised that authority turns on congressional intent: that is, did Congress intend to preempt the state law? See Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (describing preemption doctrine). More specifically, the constitutional question in this case is whether, under the doctrine of implied preemption, a state law authorizing the use of medical marijuana "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See Hines, 312 U.S. at 67, 61 S.Ct. 399 (stating that test). Nothing in the Attorney General's opinion addresses that question, and the commissioner erred in finding an answer in the Attorney General's opinion
[ 230 P.3d 531 ]
to a question that the Attorney General never addressed.
The dissent addresses the issue that the Attorney General's opinion did not and would hold for alternative reasons that ORS 475.306(1) does not stand as an obstacle to the full accomplishment of Congress's purposes in enacting the Controlled Substances Act. The dissent reasons that, because ORS 475.306(1) does not "give] permission to violate the Controlled Substances Act or affec[t] its enforcement, [that subsection] does not pose an obstacle to the federal act necessitating a finding of implied preemption." 348 Or. at 197, 230 P.3d at 539 (Walters, J., dissenting).18 In the dissent's view, the fact that a state law affirmatively authorizes conduct that federal law explicitly forbids is not sufficient to find that the state law poses an obstacle to the full accomplishment of the purposes of the federal law and is thus preempted. The dissent also advances what appears to be an alternative basis for its position. It reasons that the Oregon Medical Marijuana Act, as a whole, exempts medical marijuana use from state criminal liability and that ORS 475.306(1) is merely one part of that larger exemption. It appears to draw two different legal conclusions from that alternative proposition. It suggests that, to the extent ORS 475.306(1) merely exempts medical marijuana use from criminal liability, then Congress lacks power to require states to criminalize that conduct under the line of cases that the Attorney General cited. Alternatively, it suggests that, because authorization is merely the other side of the coin from exemption, authorizing medical marijuana use poses no more of an obstacle to the accomplishment of the purposes of the Controlled Substances Act than exempting that use from state criminal liability and thus that use is not preempted. We begin with the test that the dissent would employ in obstacle preemption cases.
As noted, the dissent would hold that a state law stands as an obstacle to the execution and accomplishment of the full purposes of a federal law (and is thus preempted) if the state law purports to override federal law either by giving permission to violate the federal law or by preventing the federal government from enforcing its laws. We do not disagree that such a law would be an obstacle. But it does not follow that anything less is not an obstacle. Specifically, we disagree with the dissent's view that a state law that specifically authorizes conduct that a federal law expressly forbids does not pose an obstacle to the full accomplishment of the purposes of the federal law and is not preempted.
If Congress chose to prohibit anyone under the age of 21 from driving, states could not authorize anyone over the age of 16 to drive and give them a license to do so. The state law would stand as an obstacle to the accomplishment of the full purposes and objectives of Congress (keeping everyone under the age of 21 off the road) and would be preempted. Or, to use a different example, if federal law prohibited all sale and possession of alcohol, a state law licensing the sale of alcohol and authorizing its use would stand as an obstacle to the full accomplishment of Congress's purposes. ORS 475.306(1) is no different. To the extent that ORS 475.306(1) authorizes persons holding medical marijuana licenses to engage in conduct that the Controlled Substances Act explicitly prohibits, it poses the same obstacle to the full accomplishment of Congress's purposes (preventing all use of marijuana, including medical uses).
The dissent, however, reasons that one state case and four federal cases support its view of obstacle preemption. It reads State v. Rodriguez,317 Or. 27, 854 P.2d 399 (1993), as providing direct support for its view. See 348 Or. at 197-98, 230 P.3d at 539-40 (Walters, J., dissenting). In Rodriguez, federal
[ 230 P.3d 532 ]
Immigration and Naturalization Service (INS) agents obtained evidence pursuant to a federal administrative warrant that was valid under federal law but not under the Oregon Constitution, and the question was whether suppressing evidence obtained pursuant to that warrant in a state criminal proceeding was an obstacle to the accomplishment of the full purposes and objectives of the federal immigration laws. This court held that it was not. Suppressing evidence in the state criminal proceeding was completely unrelated to the INS's ability to carry out its separate mission of enforcing the federal immigration laws in a federal administrative proceeding. This court did not hold in Rodriguez, as the dissent appears to conclude, that state law will be an obstacle to the full accomplishment of the purposes of the federal law only if state law interferes with the federal government's ability to enforce its laws.
The dissent also relies on four United States Supreme Court cases "for the proposition that states may impose standards of conduct different from those imposed by federal law without creating an obstacle to the federal law." 348 Or. at 199, 230 P.3d at 541 (Walters, J., dissenting). It follows, the dissent reasons, that the mere fact that state law authorizes conduct that federal law forbids does not mean that state law is an obstacle to the accomplishment of the purposes of the federal law. The four cases on which the dissent relies stand for a narrower proposition than the dissent draws from them. In interpreting the applicable federal statute in each of those cases, the Court concluded that Congress intended to leave states free to impose complementary or supplemental regulations on a person's conduct. None of those cases holds that states can authorize their citizens to engage in conduct that Congress explicitly has forbidden, as ORS 475.306(1) does.
In Wyeth, one of the cases on which the dissent relies, the defendant argued that permitting state tort remedies based on a drug manufacturer's failure to warn would "interfere with `Congress's purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.'" 129 S.Ct. at 1199 (quoting the defendant's argument). After considering the history of the federal statute, the Court concluded that "Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness." Id. at 1200. The Court concluded instead that Congress intended to allow complementary state tort remedies. Id. Given that interpretation of the federal law, the Court determined that the state tort remedy was consistent with, and not an obstacle to, Congress's purpose in requiring warnings in the first place. Put differently, the state law was not an obstacle to Congress's purpose because Congress intended to permit states to continue enforcing complementary tort remedies.
The Court's opinion in Florida Lime & Avocado Growers, Inc. v. Paul,373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), on which the dissent also relies, is to the same effect. In that case, the Court determined that a federal marketing order setting minimum standards for picking, processing, and transporting avocados did not reflect a congressional intent to prevent states from enacting laws governing "the distribution and retail sale of those commodities." 373 U.S. at 145, 83 S.Ct. 1210. As the Court explained, "[congressional regulation at one end of the stream of commerce does not, ipso facto, oust all state regulation at the other end." Id. The Court accordingly concluded that there was "no irreconcilable conflict with the federal regulation [that] require[d] a conclusion that [the state law] was displaced." Id. at 146, 83 S.Ct. 1210.19 The Court's reasoning implies that, when, as in this case, there is an irreconcilable conflict between
[ 230 P.3d 533 ]
state and federal law, that conflict "requires a conclusion that [the state law] [is displaced." See id.
In both Florida Lime & Avocado and Wyeth and the other two cases the dissent cites, the Court interpreted the applicable federal statute to permit complementary or supplementary state law.20 None of those cases considered state laws that authorized conduct that the federal law specifically prohibited, as is present in this case, and none of those cases stands for the proposition that such a law would not be an obstacle to the accomplishment of the full purposes of Congress. Rather, the Court's opinion in Florida Lime & Avocado points in precisely the opposite direction; it teaches that when, as in this case, the state and federal laws are in "irreconcilable conflict," federal law will displace state law. See 373 U.S. at 146, 83 S.Ct. 1210.
As noted, the dissent also advances what appears to be an alternative ground for its position. The dissent reasons that ORS 475.306(1) does not affirmatively authorize the use of medical marijuana; it views that subsection instead as part of a larger exemption of medical marijuana use from state criminal laws. The dissent's reasoning is difficult to square with the text of ORS 475.306(1). That subsection provides that a person holding a registry identification card "may engage" in the limited use of medical marijuana. Those are words of authorization, not exemption. Beyond that, if ORS 475.306(1) were merely part of a larger exemption, then no provision of state law would authorize the use of medical marijuana. If that were true, medical marijuana use would not come within one of the exclusions from the "illegal use of drugs," as that phrase is defined in ORS 659A.122, and the protections of ORS 659A.112 would not apply to employee. See ORS 659A.124 (so providing).21
Another thread runs through the dissent. It reasons that, as a practical matter, authorizing medical marijuana use is no different from exempting that use from criminal liability. It concludes that, if exempting medical marijuana use from criminal liability is not an obstacle to the accomplishment of the purposes of the Controlled Substances Act and is thus not preempted, then neither is a state law authorizing medical marijuana use. The difficulty with the dissent's reasoning is its premise. It presumes that a law exempting medical marijuana use from liability is valid because it is not preempted. As the Attorney General's opinion explained, however, Congress lacks the authority to compel a state to criminalize conduct, no matter how explicitly it directs a state to do so. When, however, a state affirmatively authorizes conduct, Congress has the authority to preempt that law and did so here. The dissent's reasoning fails to distinguish those two analytically separate constitutional principles.
In sum, whatever the wisdom of Congress's policy choice to categorize marijuana as a Schedule I drug, the Supremacy Clause requires that we respect that choice when, as in this case, state law stands as an obstacle to the accomplishment of the full purposes of the federal law. Doing so means that ORS
[ 230 P.3d 534 ]
475.306(1) is not enforceable. Without an enforceable state law authorizing employee's use of medical marijuana, that basis for excluding medical marijuana use from the phrase "illegal use of drugs" in ORS 659A.122(2) is not available.
As noted, a second possible exclusion from the definition of "illegal use of drugs" exists, which we also address. The definition of "illegal use of drugs" also excludes from that phrase "the use of a drug taken under supervision of a licensed health care professional."22 ORS 659A.122(2). On that issue, as noted above, employee's physician signed a statement that employee had been diagnosed with a debilitating condition, that marijuana may mitigate the symptoms or effects of that condition, but that the physician's statement was not a prescription to use marijuana. That statement was sufficient under the Oregon Medical Marijuana Act to permit employee to obtain a registry identification card, which then permitted him to use marijuana to treat his condition. Employee's physician recommended that employee use marijuana five to seven times daily by inhalation. However, without a prescription, employee's physician had no ability to control either the amount of marijuana that employee used or the frequency with which he used it, if employee chose to disregard his physician's recommendation.
The question thus posed is whether employee used marijuana "under supervision of a licensed health care professional." The answer to that question turns initially on what a person must show to come within that exclusion. As explained below, we conclude that two criteria must be met to come within the exclusion. As an initial matter, the phrase "taken under supervision" of a licensed health care professional implies that the health care professional is monitoring or overseeing the patient's use of what would otherwise be an illegal drug. See Webster's Third New Int'l Dictionary 2296 (unabridged ed. 2002) (defining supervise as "coordinate, direct, and inspect continuously and at first hand the accomplishment of" a task); cf. Moore, 423 U.S. at 143, 96 S.Ct. 335 (holding that a physician who prescribed methadone, a Schedule II controlled substance, without regulating his patients' dosage and with no precautions against his patients' misuse of methadone violated section 841 of the Controlled Substances Act).
Beyond supervision, when a health care professional administers a controlled substance, the exclusion requires that the Controlled Substances Act authorize him or her to do so. That follows from the text and context of the definition of illegal use of drugs set out in ORS 659A.122(2). After providing that the illegal use of drugs does not include "the use of a drug taken under supervision of a licensed health care professional," the legislature added "or other uses authorized under the Controlled Substances Act." The phrase "or other uses authorized by the Controlled Substances Act" is telling. The words "other uses" imply that the preceding use (the use of drugs taken under supervision of a licensed health care professional) also refers to a use authorized by the Controlled Substances Act. See Webster's at 1598 (defining "other" as "being the one (as of two or more) left").
Not only does the text of ORS 659A.122(2) imply that the use of controlled substances taken under supervision of a licensed health care professional refers to uses that the Controlled Substances Act authorizes, but the context leads to the same conclusion. See Stevens v. Czerniak,336 Or. 392, 401, 84 P.3d 140 (2004) (explaining that context includes "`the preexisting common law and the statutory framework within which the law was enacted'") (quoting Denton and Denton,326 Or. 236, 241, 951 P.2d 693 (1998)). As noted, the Controlled Substances Act both authorizes physicians and other health care professionals to administer
[ 230 P.3d 535 ]
controlled substances for medical and research purposes and defines the scope of their authority to do so. See Moore, 423 U.S. at 138-40, 96 S.Ct. 335 (so holding). We infer that, in excluding "the use of a drug taken under supervision of licensed health care professionals" from the phrase "illegal use of drugs," the legislature intended to refer to those medical and research uses that, under the Controlled Substances Act, physicians and other health care professionals lawfully can put controlled substances.
Another contextual clue points in the same direction. The exclusion in ORS 659A.122(2) for the use of a drug taken under supervision of a licensed health care professional is virtually identical to an exclusion in the definition of illegal use of drugs found in the ADA. See 42 U.S.C. § 12111(6)(A) (excluding "the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act"). The federal exclusion contemplates medical and research uses that the Controlled Substances Act authorizes, and there is no reason to think that, in adopting the same exclusion, the Oregon legislature had any different intent in mind. Cf. Stevens, 336 Or. at 402-03, 84 P.3d 140 (looking to the federal counterpart to ORCP 36 to determine Oregon legislature's intent). Given the text and context of ORS 659A.122(2), we conclude that, when a health care professional administers a controlled substance, the exclusion for the "use of a drug taken under supervision of a licensed health care professional" refers to those medical and research uses that the Controlled Substances Act authorizes.
In sum, two criteria are necessary to come within the exclusion for the use of a controlled substance taken under supervision of a licensed health care professional: (1) the Controlled Substances Act must authorize a licensed health care professional to prescribe or administer the controlled substance and (2) the health care professional must monitor or supervise the patient's use of the controlled substance. In this case, we need not decide whether the evidence was sufficient to prove the second criterion—i.e., whether employee's physician monitored or oversaw employee's use of marijuana. Even if it were, the Controlled Substances Act did not authorize employee's physician to administer (or authorize employee to use) marijuana for medical purposes. As noted, under the Controlled Substances Act, physicians may not prescribe Schedule I controlled substances for medical purposes. At most, a physician may administer those substances only as part of a Food and Drug Administration preapproved research project.23 Because there is no claim in this case that employee and his physician were participating in such a project, employee's use of marijuana was not taken under supervision of a licensed health care professional, as that phrase is used in ORS 659A.122(2).
Because employee did not take marijuana under supervision of a licensed health care professional and because the authorization to use marijuana found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the illegal use of drugs and, as the commissioner found, employer discharged employee for that reason. Under the terms of ORS 659A.124, "the protections of ORS 659A.112 do not apply" to employee. The commissioner's final order on reconsideration rests, however, on the premise that the protections of ORS 659A.112— specifically, the requirement for employer to engage in a "meaningful interactive process" as an aspect of reasonable accommodation— do apply to employee. Under ORS 659A.124, that premise is mistaken, and the commissioner's revised order on reconsideration cannot stand. Both the commissioner's order and the Court of Appeals decision affirming
[ 230 P.3d 536 ]
that order on procedural grounds must be reversed.
Given the number of the issues discussed in this opinion, we summarize the grounds for our decision briefly. First, employer preserved its challenge that, as a result of the Controlled Substances Act, the use of medical marijuana is an illegal use of drugs within the meaning of ORS 659A.124. Second, two potentially applicable exclusions from the phrase "illegal use of drugs"—the use of drugs authorized by state law and the use of drugs taken under the supervision of a licensed health care professional—do not apply here. Third, regarding the first potentially applicable exclusion, to the extent that ORS 475.306(1) authorizes the use of medical marijuana, the Controlled Substances Act preempts that subsection. We note that our holding in this regard is limited to ORS 475.306(1); we do not hold that the Controlled Substances Act preempts provisions of the Oregon Medical Marijuana Act that exempt the possession, manufacture, or distribution of medical marijuana from state criminal liability. Fourth, because employee was currently engaged in the illegal use of drugs and employer discharged him for that reason, the protections of ORS 659A.112, including the obligation to engage in a meaningful interactive discussion, do not apply. ORS 659A.124. It follows that BOLI erred in ruling that employer violated ORS 659A.112.
The decision of the Court of Appeals and the revised order on reconsideration of the Commissioner of the Bureau of Labor and Industries are reversed.
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WALTERS, J., dissented and filed an opinion, in which DURHAM, J., joined.
WALTERS, J., dissenting.
Neither the Oregon Medical Marijuana Act nor any provision thereof permits or requires the violation of the Controlled Substances Act or affects or precludes its enforcement. Therefore, neither the Oregon act nor any provision thereof stands as an obstacle to the federal act. Because the majority wrongly holds otherwise, and because, in doing so, it wrongly limits this state's power to make its own laws, I respectfully dissent.
The United States Constitution establishes a system of dual sovereignty in which state and federal governments exercise concurrent authority over the people. Printz v. United States,521 U.S. 898, 920, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Each government is supreme within its own sphere. Id. at 920-21, 117 S.Ct. 2365. In enacting the federal Controlled Substances Act, which prohibits all use of marijuana, Congress acted pursuant to its authority under the Commerce Clause. Gonzales v. Raich,545 U.S. 1, 5, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). In enacting the Oregon Medical Marijuana Act, which permits the circumscribed use of medical marijuana, Oregon acted pursuant to its historic power to define state criminal law and to protect the health, safety, and welfare of its citizens. Whalen v. Roe,429 U.S. 589, 603, 603 n. 30, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Robinson v. California,370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
In enacting the Controlled Substances Act, Congress did not have the power to require Oregon to adopt, as state criminal law, the policy choices represented in that federal act. Congress does not have the power to commandeer a state's legislative processes by compelling it to enact or enforce federal laws. New York v. United States,505 U.S. 144, 149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). "[Even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." Id. at 166, 112 S.Ct. 2408.
Because it had authority to enact the Controlled Substances Act, Congress did, however, have the power to expressly preempt state laws that conflict with the Controlled Substances Act. A cornerstone of the Supreme Court's Supremacy Clause analysis is that "[in all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied," the Court "starts] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and
[ 230 P.3d 537 ]
manifest purpose of Congress." Wyeth v. Levine, ___ U.S. ___, ___, 129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51 (2009) (internal ellipsis and quotation marks omitted). The Court relies on that presumption out of "respect for the States as independent sovereigns in our federal system." Id. at 1195 n. 3 (internal quotation marks omitted).
As the majority recognizes, the Controlled Substances Act does not include an express preemption provision. 348 Or. at 173-75, 230 P.3d at 526-27. It contains, instead, "a saving clause" intended to "preserve state law." See Wyeth, 129 S.Ct. at 1196 (so construing nearly identical provision in Federal Food, Drug, and Cosmetic Act). Thus, the majority should begin its analysis "with the assumption that the historic police powers [exercised by the State of Oregon] were not to be superseded by the Federal Act * * *." Id. at 1194-95.
The majority does not do so. It instead implies, from the federal policy choice that the Controlled Substances Act represents, a Congressional intent to preempt provisions of Oregon law that makes a different policy choice. 348 Or. at 184, 230 P.3d at 532-33. To understand the majority's error in applying the "obstacle" prong of the United States Supreme Court's implied preemption analysis, it is important to understand the purposes and effects of the federal and state laws that are at issue in this case.
Congress enacted the federal Controlled Substances Act, as the majority explains, to "conquer drug abuse" and "control" traffic in controlled substances. 348 Or. at 172-73, 230 P.3d at 526. In listing marijuana as a Schedule I drug, Congress decided that marijuana has no recognized medical use. Therefore, "Congress imposed a blanket federal prohibition" on the use of marijuana. 348 Or. at 178, 230 P.3d at 529. As noted, Congress did not expressly indicate, however, that states could not enact their own criminal drug laws or make different decisions about the appropriate use of marijuana.
Oregon did in fact enact its own criminal drug laws, including the state Uniform Controlled Substances Act (ORS 475.005 to 475.285 and ORS 475.840 to 475.980). That act controls and punishes, as state criminal law, the use of all substances that the federal government classifies as Schedule I drugs, including marijuana. ORS 475.840; ORS 475.856-475.864. Oregon also enacted the Oregon Medical Marijuana Act. That act exempts certain medical marijuana users from the state criminal drug laws, including from the state Uniform Controlled Substances Act. The Oregon Medical Marijuana Act does not permit Oregonians to violate the federal Controlled Substances Act or bar the federal government from continuing to enforce the federal Controlled Substances Act against Oregonians. The Oregon Attorney General described the purpose and reach of the Oregon Medical Marijuana Act in a letter ruling:
"The Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance. See, e.g., ORS 475.306(2), 475.309(9) and 475.319. However, the Act neither protects marijuana plants from seizure nor individuals from prosecution if the federal government chooses to take action against patients or caregivers under the federal [Controlled Substances Act]. The Act is explicit in its scope: `Except as provided in ORS 475.316 and 475.342, a person engaged in or assisting in the medical use of marijuana [in compliance with the terms of the Act] is excepted 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 * * *.' ORS 475.309(1)."
Letter of Advice dated June 17, 2005, to Susan M. Allen, Public Health Director, Department of Human Services, 2 (first emphasis in original; later emphases added).1 The
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Oregon Attorney General also concluded in that letter ruling that the decision of the Supreme Court in Raich—that Congress had authority to enact the blanket prohibitions in the Controlled Substances Act—had no effect on the validity of Oregon's statute:
"Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws. Additionally, the case does not oblige states to enforce federal laws. * * * The practical effect of Raich in Oregon is to affirm what we have understood to be the law since the adoption of the Act."2
Id. (emphasis in original).
The majority seems to accept that the Oregon Medical Marijuana Act does not bar the federal government from enforcing the Controlled Substances Act. The majority acknowledges that "state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so." 348 Or. at 178, 230 P.3d at 529. The majority also seems to accept, as a result, that provisions of the Oregon Medical Marijuana Act that exempt persons from state criminal liability do not pose an obstacle to the Controlled Substances Act.3 However, in the majority's view, one subsection of the Oregon Medical Marijuana Act, ORS 475.306(1), presents an obstacle to the Controlled Substances Act and does so solely because it includes words of authorization. Id. at 178-79, 230 P.3d at 529-30.
As I will explain in more detail, I believe that the majority is incorrect in reaching that conclusion. First, the words of authorization used in ORS 475.306(1) and other subsections of the Oregon Medical Marijuana Act serve only to make operable the exceptions to and exemptions from state prosecution provided in the remainder of the act. The words of authorization used in those subsections do not grant authorization to act that is not already inherent in the exceptions or exemptions, nor do they permit the violation of federal law. Second, in instances in which state law imposes standards of conduct that are different than the standards of conduct imposed by federal law, but both laws can be enforced, the Supreme Court has not held the state laws to be obstacles to the federal laws, nor discerned an implied Congressional intent to preempt the state laws from the different policy choices made by the federal government. Thus, the majority is incorrect in finding that the standard of conduct and policy choice represented by the Controlled Substances Act prohibits a different state standard of conduct and policy choice. Both the Oregon Medical Marijuana Act and the
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Controlled Substances Act can be enforced, and this state court should not interpret the federal act to impliedly preempt the state act.
The Oregon Medical Marijuana Act contains a number of subsections that use words of authorization. Those subsections are interwoven with the subsections of the act that except and exempt medical marijuana users from criminal liability. For instance, ORS 475.309, which the majority cites as a provision that excepts persons who use medical marijuana from state criminal liability, 348 Or. at 179-80, 230 P.3d at 530, provides that a person engaged in or assisting in the medical use of marijuana "is excepted from the criminal laws of the state" if certain conditions, including holding a "registry identification card," are satisfied. (Emphases added.) ORS 475.302(10) defines "registry identification card" as follows:
"a document issued by the department that identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any."
(Emphasis added.)
Consider also ORS 475.306(1), the section of the act that the majority finds offending. That subsection references both ORS 475.309, the exception section, and the registry identification card necessary to that exception. ORS 475.306(1) provides:
"A person who possesses a registry identification card issued pursuant to ORS 475.309 may engage in, and a designated primary caregiver of such person may assist in, the medical use of marijuana only as justified to mitigate the symptoms or effects of the person's debilitating medical condition."4
(Emphasis added.) Reading those three provisions together, it is clear that ORS 475.306(1) serves as a limitation on the use of medical marijuana that the registry identification card and ORS 475.309 together permit. Under ORS 475.306(1), a person who possesses a registry identification card issued pursuant to ORS 475.309 may engage in the use the card permits "only as justified to mitigate the symptoms or effects of the person's debilitating medical condition." (Emphasis added.)
ORS 475.319, another section of the act that the majority cites as creating an exemption from criminal liability, also depends on words of permission for its operation. 348 Or. at 179-80, 230 P.3d at 530. ORS 475.319 creates an affirmative defense to a criminal charge of possession of marijuana, but only for persons who possess marijuana "in amounts permitted under ORS 475.320." (Emphasis added.) ORS 475.320(1)(a) provides: "A registry identification cardholder * * * may possess up to six mature marijuana plants and 24 ounces of usable marijuana." (Emphasis added.)
The words of authorization used in ORS 475.306(1) are no different from the words of authorization that are used in other sections of the act and that are necessary to effectuate ORS 475.309 and ORS 475.319 and the exceptions to and exemptions from criminal liability that they create. Those words of authorization do not grant permission that would not exist if those words were eliminated or replaced with words of exception or exclusion. Even if it did not use words of permission, the Oregon Medical Marijuana Act would permit, for purposes of Oregon law, the conduct that it does not punish. Furthermore, the statutory sections that provide that citizens may, for state law purposes, engage in the conduct that the state will not punish have no effect on the Controlled Substances Act that is greater than the effect of the sections that declare that the state will not punish that conduct.
Because neither the Oregon Medical Marijuana Act nor any subsection thereof gives permission to violate the Controlled Substances Act or affects its enforcement, the Oregon act does not pose an obstacle to the federal act necessitating a finding of implied preemption. In State v. Rodriguez,317 Or. 27, 854 P.2d 399 (1993), this court recognized
[ 230 P.3d 540 ]
that state and federal laws can prescribe different standards, each acting within its own authority, without affecting the other's authority, and without offending the Supremacy Clause. In that case, the defendant had been arrested by federal immigration agents on a warrant that the state conceded did not satisfy the oath or affirmation requirement of Article I, section 9, of the Oregon Constitution. The state argued, however, that, because the warrant was valid under federal law, "the Supremacy Clause render[ed] Article I, section 9, inapplicable to the arrest * * *." Id. at 34, 854 P.2d 399. The court rejected that argument and concluded that preemption was not at issue because the application of the state constitutional requirements for an arrest warrant did not "affect the ability of the federal government to administer or enforce its * * * laws." Id. at 36, 854 P.2d 399. Because the court interpreted the state constitution not to impose requirements on arrests by federal officers, the state and the federal law did not conflict:
"Because this court's interpretation of Article I, section 9, in this context, cannot and will not interfere with the federal government in immigration matters, the Supremacy Clause has no bearing on this case and this court is not `preempted' from applying Article I, section 9, to defendant's arrest."
Id. Similarly, the Oregon Medical Marijuana Act "cannot and will not interfere with" the federal government's enforcement of the Controlled Substances Act and does not offend the Supremacy Clause.
Instead of following Rodriguez, the majority relies on two United States Supreme Court cases for the proposition that state law that permits what federal law prohibits is impliedly preempted. 348 Or. at 176-77, 230 P.3d at 528-29. The majority then concludes that, "[t]o the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it `without effect.'" 348 Or. at 178, 230 P.3d at 529. I disagree with the majority's analysis for two reasons. First, the cases that the majority cites stand only for the proposition that when federal law bestows an unlimited power or right, state law cannot preclude the exercise of that power or right. The Controlled Substances Act does not create a right; it prohibits certain conduct. Second, other Supreme Court cases hold that when a federal law does not create powers or rights but, instead, sets standards for conduct, state law may set different standards for the same conduct without offending the Supremacy Clause, as long as both sets of laws may be enforced. By deciding not to punish the medical use of marijuana, the Oregon Medical Marijuana Act authorizes, for state law purposes, conduct that the Controlled Substances Act prohibits. The Oregon Medical Marijuana Act does not, however, offend the Supremacy Clause because it does not affect enforcement of the Controlled Substances Act.
In the first of the two cases on which the majority relies, Barnett Bank v. Nelson,517 U.S. 25, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), a federal statute explicitly granted national banks the unlimited power to sell insurance in small towns. A state statute forbade and impaired the exercise of that power, and the court held that it was preempted.
Michigan Canners & Freezers Association v. Agricultural Marketing and Bargaining Bd.,467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984), the second case on which the majority relies, concerned a conflict between the federal Agricultural Fair Practices Act, which protects the rights of producers of agricultural goods to remain independent and to bring their products to market on their own without being required to sell those products through an association, and a Michigan statute. Id. at 473, 104 S.Ct. 2518. As the court explained in Massachusetts Medical Soc. v. Dukakis,815 F.2d 790, 796 (1st Cir.), cert. den., 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987), the Agricultural Fair Practice Act creates a "right to refrain from joining an association of producers[.]" (Ellipses omitted.) The Michigan statute at issue prevented the exercise of the right conferred by the act by precluding an agricultural producer "from marketing his goods himself" and "impos[ed] on the producer the same incidents of association membership with which Congress was concerned * * *."
[ 230 P.3d 541 ]
Michigan Canners, 467 U.S. at 478, 104 S.Ct. 2518. The Court held that under those circumstances, the state statute was preempted.
Neither Barnett nor Michigan Canners stands for the proposition that a state statute that permits conduct that the federal government punishes is preempted. In those cases, the federal statutes did not punish conduct; they created powers or rights. The Court therefore struck down state statutes that forbade, impaired or prevented exercise of those powers or rights. Because the Controlled Substances Act does not create a federal power or right and the Oregon Medical Marijuana Act does not forbid, impair, or prevent the exercise of a federal power or right, Barnett and Michigan Canners are inapposite. The more relevant Supreme Court cases are those that consider the circumstance that exists when federal and state laws impose different standards of conduct. Those cases stand for the proposition that states may impose standards of conduct different from those imposed by a federal law without creating an obstacle to the federal law.
In California v. ARC America Corp.,490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), the Court considered, under the "obstacle prong" of its "actual conflict" implied preemption analysis, the conflict between Section 4 of the federal Clayton Act, which authorizes only direct purchasers to recover monopoly overcharges, and a state statute, which expressly permits recovery by indirect purchasers. The Supreme Court held that, even if the state statute directly conflicted with the goals of the federal law, as the Ninth Circuit had held, the state statute was not preempted. The Supreme Court reasoned that states are not required to pursue federal goals when enacting their own laws:
"It is one thing to consider the congressional policies identified in Illinois Brick [v. State of Illinois,431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977)] and Hanover Shoe [v. United Shoe Machinery Corp.,392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968)] in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law."
Id. at 103, 109 S.Ct. 1661.
Other Supreme Court cases also illustrate the Court's refusal to imply preemption, under the "obstacle" prong of its implied preemption analysis, where state and federal statutes set contrary standards or pursue contrary objectives. In Silkwood v. Kerr-McGee Corp.,464 U.S. 238, 246, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), a case that the court in ARC America cited as authority, the jury had awarded the plaintiff a judgment of $10 million in punitive damages against the defendant, a nuclear power company. The defendant asserted that a conflict existed between the state law that permitted the judgment and a federal law regulating nuclear power plants, with which the defendant had complied. Despite an earlier ruling that the Nuclear Regulatory Commission had exclusive authority to regulate the safety of nuclear power plants,5 and even though the Court accepted that "there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability," id. at 256, 104 S.Ct. 615, the Court refused to invalidate the state law.
In Florida Lime & Avocado Growers, Inc. v. Paul,373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), a federal statute authorized the marketing of Florida avocados on the basis of weight, size, and picking date; California, however, regulated the marketing of avocados sold in the state on the basis of oil content. As a result of the differing standards, about six percent of Florida avocados that were deemed mature under federal standards were rejected from California markets. The plaintiffs argued that the federal standard for regulating Florida avocados preempted California's conflicting regulation. As the dissent argued:
[ 230 P.3d 542 ]
"The conflict between federal and state law is unmistakable here. The Secretary asserts certain Florida avocados are mature. The state law rejects them as immature. And the conflict is over a matter of central importance to the federal scheme. The elaborate regulatory scheme of the marketing order is focused upon the problem of moving mature avocados into interstate commerce. The maturity regulations are not peripheral aspects of the federal scheme."
373 U.S. at 173, 83 S.Ct. 1210 (White, J., dissenting). The majority, however, concluded that the test of whether an actual conflict existed was not whether the laws adopted contrary standards, but whether both laws could be enforced:
"The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives."
Id. at 142, 83 S.Ct. 1210 (emphasis added).
The Court's most recent case on the issue, Wyeth v. Levine, ___ U.S. ___, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), is in accord. In that case, the court was presented with a conflict between state and federal law that the dissent characterized as follows: "The FDA told Wyeth that Phenergan's label renders its use `safe.' But the State of Vermont, through its tort law said: `Not so.'"6Id., 129 S.Ct. at 1231 (Alito, J. dissenting). Nevertheless, the majority upheld the state law. Although the two laws imposed contradictory standards, the state law was not preempted.
The cases that I have reviewed demonstrate that the Supreme Court requires more as a basis for implying a congressional intent to preempt a state law than a Congressional purpose that is at odds with the policy that a state selects. The Court has permitted state laws that impose standards of conduct different than those set by federal laws to stand unless the state laws preclude the enforcement of the federal laws or have some other demonstrated effect on their operation. The Court has found state laws that forbid, impair or prevent the exercise of federally granted powers or rights to be preempted.
The majority does not contend, in accordance with those cases, that ORS 475.306(1) or the Oregon Medical Marijuana Act as a whole precludes enforcement of the Controlled Substances Act or has any other demonstrated effect on its "accomplishment and execution." The only obstacles to the federal act that the majority identifies are Oregon's differing policy choice and the lack of respect that it signifies. 348 Or. at 184-85, 230 P.3d at 533.
As an example of the way it believes the Supremacy Clause to operate, the majority posits that, if Congress were to pass a law prohibiting persons under the age of 21 from driving, a state law authorizing persons over the age of 16 to drive and giving them a license to do so would be preempted.7 348 Or. at 180-81, 230 P.3d at 530-31. The majority would be correct if Congress had authority to make such a law and if Congress expressly preempted state laws allowing persons under the age of 21 to drive or indicated an intent to occupy the field. However, without such statement of Congressional intent, implied preemption does not necessarily follow. As a sovereign state, Oregon has authority to license its drivers and to choose its own age requirements. If Oregon set at 16 years the minimum age for its drivers then, the Oregon driver licenses it issued would give 16-year-olds only state permission to drive. The Oregon law would not be preempted, but neither would it protect 16-year-olds from federal prosecution and liability.
As a result, an Oregon legislature considering whether to enact such a law could decide, as a practical matter, that it would
[ 230 P.3d 543 ]
not be in the interest of its citizens to grant licenses that could result in federal prosecution. Suppose, however, that Congress had passed the federal law that the majority posits, but that federal officers were not enforcing it. Or suppose further that the federal government had announced a federal policy decision not to enforce the federal law against "individuals whose actions are in clear and unambiguous compliance with existing state laws" permitting minors to drive. Could Oregon not serve as a laboratory allowing minors to drive on its roads under carefully circumscribed conditions to permit them to acquire driving skills and giving Congress important information that might assist it in determining whether its policy should be changed? Is not one of federalism's chief virtues 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"? See New State Ice Co. v. Liebmann,285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) (so contending).
In the case of medical marijuana, the federal government in fact has announced that it will not enforce the Controlled Substances Act against "individuals whose actions are in clear and unambiguous compliance with existing state laws permitting the medical use of marijuana."8 Oregon is not the only state that permits the use of medical marijuana, and at least one state is considering rules to "identify requirements for the licensure of producers and cannabis production facilities." New Mexico's "Lynn and Erin Compassionate Use Act," 2007 New Mexico Laws ch. 210, § 7 (SB 523).9
As I explained at the outset, the federal government has no power to require that the Oregon legislature pass state laws to implement or give effect to federal policy choices. One sovereign may make a policy choice to prohibit and punish conduct; the other sovereign may make a different policy choice not to do so and instead to permit, for purposes of state law only, other circumscribed conduct. Absent express preemption, a particular policy choice by the federal government does not alone establish an implied intent to preempt contrary state law. A different choice by a state is just that—different. A state's contrary choice does not indicate a lack of respect; it indicates federalism at work.
The consequence of the majority's decision that the Controlled Substance Act invalidates ORS 475.306(1) is that petitioner is disqualified from the benefits of ORS 659A.124, which imposes a requirement of reasonable accommodation. The majority states that it does not decide "whether the legislature, if it chose to do so and worded Oregon's disability law differently, could require employers to reasonably accommodate otherwise qualified
[ 230 P.3d 544 ]
disabled employees who use medical marijuana to treat their disabilities." 348 Or. at 172 n. 12, 230 P.3d at 526 n. 12. Indeed, different words could be used for that purpose. For instance, the legislature could state expressly in ORS chapter 659A that disabled persons who would be entitled to the affirmative defense set forth in ORS 475.319 (a provision the majority does not find preempted) are not disqualified from the protections of the Oregon Disability Act, including the requirement of reasonable accommodation. Or, to be even more careful, the legislature could state, in chapter 659A, the conditions that a medical marijuana user must meet to be entitled to the protections of the Oregon Disability Act without any reference to the Oregon Medical Marijuana Act. If the legislature took either of those actions, reasonable accommodation would not be tied to the provision of the Oregon Medical Marijuana Act that the majority finds to be of "no effect."
Although such changes could secure the right of reasonable accommodation for disabled persons who use medical marijuana in compliance with Oregon law, the changes would not eliminate the questions that the majority's analysis raises about the validity of other provisions of the Oregon Medical Marijuana Act that use words of authorization or about the reach of Oregon's legislative authority. If the majority decision simply represents a formalistic view of the Supremacy Clause that permits Oregon to make its own choices about what conduct to punish (and thereby to permit) as long as it phrases its choices carefully, perhaps my concern is overstated. But as I cannot imagine that Congress would be concerned with the phrasing, rather than the effect, of state law, I not only think that the majority is wrong, I fear that it wrongly limits the legislative authority of this state. If it does, it not only limits the state's authority to make its own medical marijuana laws, it limits the state's authority to enact other laws that set standards of conduct different than the standards set by the federal government. Consider just one statute currently on the books—Oregon's Death with Dignity Act.
Oregon's Death with Dignity Act affirmatively authorizes physicians to use controlled substances to assist suicide.10 In Gonzales v. Oregon,546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), the Supreme Court considered the validity of a federal Interpretive Rule that provided that "using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the [Controlled Substances Act]." Id. at 249, 126 S.Ct. 904. The Supreme Court decided that the Interpretive Rule was invalid and did not decide whether the federal rule preempted the Oregon act. But if the federal government were to adopt a statute or a valid rule to the same effect, would this court hold that, because the Oregon Death with Dignity Act grants physicians permission to take actions that federal law prohibits, the state statute is preempted and of no effect? If so, the court would invalidate a state law using an analysis that at least three members of the Supreme Court have recognized to be faulty:
"[T]he [Interpretive Rule] does not purport to pre-empt state law in any way, not even by conflict pre-emption—unless the Court is under the misimpression that some States require assisted suicide."
Gonzales, 546 U.S. at 290, 126 S.Ct. 904 (Scalia, J., joined by Roberts, C.J. and Thomas, J., dissenting) (emphasis in original).
I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon's motto provides, "with her own wings." ORS 186.040. Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own
[ 230 P.3d 545 ]
independent decisions about what conduct to criminalize. With respect, I dissent.
DURHAM, J., joins in this opinion.
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Footnotes
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1. The 2001 version of the applicable statutes was in effect at the time of the events that gave rise to this proceeding. Since 2001, the legislature has amended those statutes but not in ways that affect our decision, and we have cited to the 2009 version of the statutes.
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2. ORS 475.309(7)(a)(C) requires a person possessing a registry identification card to submit annually "[updated written documentation from the cardholder's attending physician of the person's debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects" of that condition. If the person fails to do so, the card "shall be deemed expired." ORS 475.309(7)(b).
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3. BOLI points to nothing in its rules that suggests that more specificity was required. Cf. OAR 839-050-0130 (providing only that affirmative defenses must be raised or waived).
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4. To be sure, the Court of Appeals reserved the question in Washburn whether the use of medical marijuana is unlawful under federal law, but that did not detain it from holding that the employer in that case had an obligation under ORS 659A.112 to accommodate the employee's use of medical marijuana. Given Washburn's holding, employer reasonably conceded its controlling effect until, as noted below, the Supreme Court issued its decision in Raich.
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5. After the Commissioner issued his final order in this case, this court reversed the Court of Appeals decision in Washburn. Washburn v. Columbia Forest Products, Inc.,340 Or. 469, 480, 134 P.3d 161 (2006). This court held that the employee in Washburn was not a disabled person within the meaning of ORS chapter 659A. Id. at 479, 134 P.3d 161. Given that holding, this court did not reach the other issues that the Court of Appeals had addressed in Washburn. After this court's decision in Washburn, the commissioner withdrew the final order and issued a revised order on reconsideration, adhering to his earlier resolution of employer's affirmative defenses in this case.
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6. As noted, employer moved to reopen the record on the ground that, as a result of Raich, "states may not authorize the use of marijuana for medicinal purposes" and that "[t]he impact of this decision is that [employer] should prevail on its Fourth and Fifth Affirmative Defenses." Employer thus told the agency that the Controlled Substances Act, as interpreted in Raich, compelled its interpretation of Oregon's antidiscrimination statutes. Additionally, in response to BOLI's arguments, employer contended that the Controlled Substances Act preempted the Oregon Medical Marijuana Act.
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7. We note that both California and Washington have considered whether their state medical marijuana laws give medical marijuana users either a claim under California's fair employment law or an implied right of action under Washington law against an employer that discharges or refuses to hire a person for off-work medical marijuana use. See Roe v. TeleTech Customer Care Management, 152 Wn.App. 388, 216 P.3d 1055 (2009); Ross v. RagingWire Telecommunications, Inc.,42 Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d 200 (2008). Both the California and Washington courts have held that, in enacting their states' medical marijuana laws, the voters did not intend to affect an employer's ability to take adverse employment actions based on the use of medical marijuana. Roe, 216 P.3d at 1058-61; Ross,70 Cal.Rptr.3d 382, 174 P.3d at 204. Accordingly, in both Washington and California, employers do not have to accommodate their employees' off-site medical marijuana use. We reach the same conclusion, although our analysis differs because Oregon has chosen to write its laws differently.
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8. ORS 659A.124 lists exceptions to that rule, none of which applies here. See ORS 659A.124(2) (recognizing exceptions for persons who either are participating in or have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs).
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9. Before 2009, former ORS 659A.100(4) (2001) defined the phrase "illegal use of drugs." In 2009, the legislature renumbered that definition as ORS 659A.122(2).
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10. The ballot title for the Oregon Medical Marijuana Act confirms that interpretation of the act. See State v. Gaines,346 Or. 160, 172, 206 P.3d 1042 (2009) (looking to legislative history to confirm text). The caption, "yes" vote result statement, and summary of the ballot title focused on the fact that the measure, if enacted, would allow permit-holders to use medical marijuana and referred to the exemption from criminal laws only at the end of the summary. Official Voters' Pamphlet, Nov 3, 1998, 148. The caption stated that the measure "[allows medical use of marijuana within limits; establishes permit system." The "yes" vote result statement was to the same effect, and the summary stated that current law prohibits the possession and manufacture of marijuana but that the measure "allows engaging in, assisting in, medical use of marijuana." Id. Only at the end of the summary did the ballot title add that the measure "excepts permit holder or applicant from marijuana criminal statutes." Id.
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11. The Oregon Medical Marijuana Act also exempts medical marijuana use from state criminal liability. See ORS 475.309(1) (excepting persons holding registry identification cards from certain state criminal prohibitions); ORS 475.319 (creating an affirmative defense to certain criminal prohibitions for persons who do not hold registry identification cards but who have complied with the conditions necessary to obtain one). Because ORS 659A.122(2) excludes from the definition of illegal use of drugs only those uses authorized by state law, the provisions of the Oregon Medical Marijuana Act that are relevant here are those provisions that affirmatively authorize the use of medical marijuana, as opposed to those provisions that exempt its use from criminal liability.
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12. The only issue that employer's preemption argument raises is whether federal law preempts ORS 475.306(1) to the extent that it authorizes the use of medical marijuana. In holding that federal law does preempt that subsection, we do not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability. We also express no opinion on the question whether the legislature, if it chose to do so and worded Oregon's disability law differently, could require employers to reasonably accommodate disabled employees who use medical marijuana to treat their disability. Rather, our opinion arises from and is limited to the laws that the Oregon legislature has enacted.
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13. Two subsections of the Controlled Substances Act accomplish that result. Section 823(f) directs the Attorney General to register physicians and other practitioners to dispense controlled substances listed in Schedule II through V. 21 U.S.C. § 823(f). Section 822(b) authorizes persons registered with the Attorney General to dispense controlled substances "to the extent authorized by their registration and in conformity with the other provisions of this subchapter." 21 U.S.C. § 822(b).
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14. The specific question in Oakland Cannabis Buyers' Cooperative was whether there was a medical necessity exception for manufacturing and distributing marijuana. The Court explained, however, that, "[lest there be any confusion, we clarify that nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act." 532 U.S. at 494 n. 7, 121 S.Ct. 1711.
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15. The provision at issue in Wyeth provided that the federal statute did not preempt state law unless there was a "direct and positive" conflict between state and federal law. Wyeth, 129 S.Ct. at 1196. At first blush, one might think that the Court would have looked to the standard that Congress had expressly provided—whether there is a "direct and positive conflict" between the state and federal laws—to determine the extent to which federal law preempts state law. See Cipollone v. Liggett Group, Inc.,505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (holding that the preemptive effect of a federal act is "governed entirely" by an express preemption provision). Implied preemption, however, addresses a similar issue, and the Court used an implied preemption analysis in Wyeth without any discussion. 129 S.Ct. at 1196-1200. Given Wyeth, we follow a similar course here.
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16. Justice Thomas noted that the Court had used different formulations to explain when it would be physically impossible to comply with both state and federal laws and questioned whether the Court had applied that standard too strictly. Wyeth, 129 S.Ct. at 1208-09 (opinion concurring in the judgment). In his view, the physical impossibility test is too narrow, and asking whether state law stands as an obstacle to the purposes of the federal law too amorphous. He would have asked whether the state and federal law are in direct conflict. Id.; see Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 260-61 (2000) (reasoning that historically and practically preemption reduces to a "logical contradiction" test).
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17. The Attorney General's opinion stated that the Oregon Medical Marijuana Act "protects users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance." Letter Opinion at 2. In support of that statement, the opinion cited former ORS 475.306(2) (2003), which provided an affirmative defense for persons who possessed excess amounts of marijuana if possession of that amount of marijuana were medically necessary. See Or. Laws 2005, ch. 822, § 2 (repealing that provision). The opinion also cited ORS 475.319 and ORS 475.309(9), which provides an affirmative defense to criminal liability for persons who have applied for but not yet received a registry identification card.
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18. The dissent phrases the test it would apply in various ways throughout its opinion. For instance, it begins its opinion by stating that the Oregon Medical Marijuana Act neither "permits [nor requires the violation of the Controlled Substances Act." 348 Or. at 190, 230 P.3d at 536 (Walters, J., dissenting). Because the Oregon Medical Marijuana Act permits (and indeed authorizes) conduct that violates the Controlled Substances Act, we understand the dissent to use the word "permits" to mean expressly purports to "give] permission," as it later rephrases its test. We also note that, if the Oregon Medical Marijuana Act "required" a violation of federal law, then the physical impossibility prong of implied preemption would apply.
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19. The dissenting opinion quotes the dissent in Florida Lime & Avocado for the proposition that the conflict between state and federal law in that case was unmistakable. See 348 Or. at 200-02, 230 P.3d at 541-42 (Walters, J., dissenting) (quoting Florida Lime & Avocado, 373 U.S. at 173, 83 S.Ct. 1210 (White, J., dissenting)). The majority, however, disagreed on that point, 373 U.S. at 145-46, 83 S.Ct. 1210, and its conclusion that federal law left room for complementary state law was pivotal to its conclusion that the federal marketing order did not preempt California law.
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20. The other two United States Supreme Court cases on which the dissent relies are to the same effect. Neither case involved a federal statute that, as the Court interpreted it, prohibited what the state law authorized. See California v. ARC America Corp.,490 U.S. 93, 103, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (explaining that nothing in an earlier decision that only direct purchasers may bring an action under section 4 of the Clayton Act "suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws"); Silkwood v. Kerr-McGee Corp.,464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (holding that, even though Congress "was well aware of the NRC's exclusive authority to regulate safety matters," Congress also had "assumed that state law remedies, in whatever form they might take, were available to those injured in nuclear incidents").
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21. There is a suggestion in the dissent that ORS 475.306(1) is integral to the goal of exempting medical marijuana use from state criminal liability and cannot be severed from the remainder of the Oregon Medical Marijuana Act. That act, however, contains an express severability clause, and it is not apparent why the provisions exempting medical marijuana use from state criminal liability cannot "be given full effect without [the authorization to use medical marijuana found in ORS 475.306(1)]." See Or. Laws 1999, ch. 4, § 18 (providing the terms for severing any part of the act held invalid).
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22. The commissioner did not consider whether this exclusion applied, in part because the Court of Appeals had stated in Washburn that the use of marijuana for medical purposes was "not unlawful," which the parties and the commissioner concluded was sufficient to answer employer's reliance on ORS 659A.124. Although we could remand this case to the commissioner to permit him to address whether this exclusion applies, its application in this case turns solely on an issue of statutory interpretation, an issue on which we owe the commissioner no deference. In these circumstances, we see no need to remand and unnecessarily prolong the resolution of this case.
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23. Gonzales v. Oregon,546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), addressed a different issue from the one presented here. The Controlled Substances Act provides that Schedule II controlled substances have accepted medical uses, and the issue in Gonzales was whether the Attorney General had exceeded his statutory authority in defining which uses of Schedule II controlled substances were legitimate medical uses. In this case, by contrast, the Controlled Substances Act provides that Schedule I controlled substances, such as marijuana, have no accepted medical use. That congressional policy choice both addresses and conclusively resolves the issue that the Attorney General lacked statutory authority to address in Gonzales.
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1. Consistent with the Attorney General's letter opinion, ORS 475.300(4) provides that ORS 475.300 to 475.346—the entirety of the Oregon Medical Marijuana Act—is "intended to make only those changes to existing Oregon laws that are necessary to protect patients and their doctors from criminal and civil penalties[.]" (Emphasis added.)
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2. The question that the Oregon Attorney General answered in the letter opinion was "Does Gonzales v. Raich, 545 U.S. [1, 125 S.Ct. 2195, 162 L.Ed.2d 1] (2005), * * * invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?" The Attorney General said, "No." The Attorney General explained that "[t]he Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance," and cited ORS 475.309, ORS 475.319, and ORS 475.306(2). At the time of the Attorney General opinion, ORS 475.306(2) (2003) provided:
"If the individuals described in subsection (1) of this section possess, deliver or produce marijuana in excess of the amounts allowed in subsection (1) of this section, such individuals are not excepted from the criminal laws of the state but may establish an affirmative defense to such charges, by a preponderance of the evidence that the greater amount is medically necessary to mitigate the symptoms or effects of the person's debilitating medical condition."
ORS 475.306(2) (2003), amended by Or. Laws 2005, ch. 822, § 2 (emphasis added). Thus, one of the subsections of the Oregon Medical Marijuana Act that the Attorney General cited used words of authorization very similar to those used in ORS 475.306(1).
Throughout the opinion, the Attorney General discussed the continued validity of the Oregon Medical Marijuana Act as a whole and did not in any way differentiate between provisions of the act that authorize medical marijuana use and those that create an exemption from state prosecution. In fact, the Attorney General specifically opined that the state is entitled to continue to issue registry identification cards—cards that, by definition, are documents that identify persons "authorized to engage in the medical use of marijuana." ORS 475.302(10) (emphasis added).
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3. The majority expressly leaves that question open, however. 348 Or. at 172 n. 12, 230 P.3d at 526 n. 12.
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4. The majority recognizes that it is essential to read ORS 475.306(1) and ORS 475.302(10) together to find an affirmative authorization to use marijuana for medicinal purposes. 348 Or. at 170-71, 230 P.3d at 525. However, the majority does not explain why it finds ORS 475.306(1) and not ORS 475.302(10) preempted.
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5. Pacific Gas & Elec. v. Energy Resources Conservation & Development Comm'n,461 U.S. 190, 211-13, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983).
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6. The FDA had also adopted a regulation declaring that "certain state law actions, such as those involving failure-to-warn claims, `threaten FDA's statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.'" Id. at 1200.
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7. As I read the majority opinion, a state law providing that Oregon would not punish drivers between the ages of 16 and 21, as opposed to permitting those persons to drive, would withstand a Supremacy Clause challenge.
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8. Memorandum from David W. Ogden, Deputy Attorney General for Selected United States Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009) (available at http://blogs.usdoj. gov/blog/archives/192) (accessed Apr. 6, 2010) (emphasis in original).
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9. New Mexico's "Lynn and Erin Compassionate Use Act," 2007 New Mexico Laws ch. 210, § 7 (SB 523), requires relevant state agencies to develop rules that "identify requirements for the licensure of producers and cannabis production facilities and set forth procedures to obtain licenses," as well as "develop a distribution system for medical cannabis" that comports with certain requirements. The New Jersey "Compassionate Use Medical Marijuana Act," S119, Approved PL 2009, c. 307, § 7, provides for the creation of "alternate treatment centers, each of which
"shall be authorized to acquire a reasonable initial and ongoing inventory, as determined by the department, of marijuana seeds or seedlings and paraphernalia, possess, cultivate, plant, grow, harvest, process, display, manufacture, deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or related supplies to qualifying patients or their primary caregivers who are registered with the department pursuant to section 4 of * * * this act."
The Maine Medical Marijuana Act provides for the creation of "nonprofit dispensaries" which are authorized to dispense up to two and one-half ounces of marijuana to qualified patients. Me. Rev. Stat. title 22, § 2428-7. In Rhode Island, "The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act," provides for the creation of "compassion centers," which "may acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply or dispense marijuana * * * to registered qualifying patients and their registered primary caregivers." R.I. Gen. Laws § 21-28.6-12.
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10. ORS 127.815(1)(L)(A) authorizes physicians to dispense medications for the purpose of ending a patient's life in a humane and dignified manner when that patient has a terminal illness and has satisfied the written request requirements that the Act provides. ORS 127.805(1) authorizes a terminally ill patient to "make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with [the Act]."
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WILLIS v. WINTERS
234 P.3d 141 (2010)
235 Or. App. 615
Cynthia Townsley WILLIS, Petitioner-Respondent,
v.
Michael WINTERS, in his official capacity as Sheriff of Jackson County, Respondent-Appellant.
072755Z7; A139875.
Court of Appeals of Oregon.
Argued and Submitted November 4, 2009.
Decided June 16, 2010.
Benjamin M. Bloom and Elmer M. Dickens, Jr., argued the cause for appellant. With Benjamin M. Bloom on the briefs was Hornecker, Cowling, Hassen & Heysell, L.L.P.
John C. Lucy, IV, and Leland R. Berger, Portland, argued the cause and filed the brief for respondent.
Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.*
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WOLLHEIM, P.J.
Respondent, the Jackson County Sheriff, appeals a judgment of the circuit court that ordered him to renew a concealed handgun license issued to petitioner, a medical marijuana user. The sheriff concedes that petitioner met the requirements for issuance of a concealed handgun license set forth in ORS 166.291. He nevertheless asserts that Oregon's concealed handgun licensing statutes are preempted by federal law in this instance, because "an unlawful user * * * of any controlled substance" cannot lawfully possess a firearm under 18 U.S.C. section 922(g) of the federal Gun Control Act.1 The
[ 234 P.3d 143 ]
circuit court rejected the sheriff's preemption argument and ordered him to issue a renewal of petitioner's concealed handgun license. We agree with the circuit court's conclusion that federal law does not preempt this state's concealed handgun licensing statutes, and we therefore affirm.
The relevant facts are few and undisputed. In May 2007, petitioner applied to renew her expired concealed handgun license. The criteria for renewal of a concealed handgun license are, with the exception of submitting fingerprints and character references, the same as those for issuance of the license in the first instance under ORS 166.291. ORS 166.295(1)(a) ("A concealed handgun license is renewable by repeating the procedures set out in ORS 166.291 and 166.292, except for the requirement to submit fingerprints and provide character references."). ORS 166.291, in turn, provides that the sheriff of a county, "upon a person's application for an Oregon concealed handgun license, [and] upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license" if the person meets certain enumerated criteria.2 (Emphasis added.)
Petitioner satisfied each of the enumerated criteria in ORS 166.291. Nonetheless, the sheriff, acting through one of his sergeants, denied the application. The basis for denying the application was petitioner's response to a series of questions, which the sheriff had included in the application on his own initiative, inquiring about the use of controlled substances.3 Petitioner reported that she used marijuana on a regular basis, as authorized by her doctor. During an evidentiary hearing, petitioner testified that she does, in fact, use marijuana, pursuant to a card issued in accordance with Oregon's Medical Marijuana Act, ORS 475.300 to 475.346.
After the sheriff denied her application for renewal, petitioner filed a petition for judicial review of that decision. In petitioner's view, the sheriff was required to renew—in the words of ORS 166.291, "shall issue"—her concealed handgun license because
[ 234 P.3d 144 ]
she satisfied each of the listed criteria.4 The sheriff, in response, did not dispute petitioner's reading of Oregon's concealed handgun licensing statutes, in particular, ORS 166.291. Instead, the sheriff argued that his statutory obligation to issue the license was preempted by federal law—namely, 18 U.S.C. section 922, of the federal Gun Control Act. Under that law,
"[it shall be unlawful for any person * * * who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) * * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
18 U.S.C. § 922(g) (emphasis added). According to the sheriff, issuing a concealed handgun license to a person who admittedly uses marijuana, a Schedule I controlled substance under federal law, 21 U.S.C. section 801, would frustrate the purpose of the federal Gun Control Act.
The circuit court rejected the sheriff's preemption argument. The court reasoned that the concealed handgun licensing statutes "provide a defense to a state prosecution for carrying a concealed weapon. [They] do not purport to overrule, or in any other way address, who may lawfully possess a weapon under federal law." (Emphasis in original.) "Thus," the court ruled, "the state and federal statutes are not in clear and direct conflict, and preemption therefore does not apply." The court then entered a judgment ordering the sheriff to reinstate petitioner's concealed handgun license.
The sheriff now appeals that judgment, arguing once again that federal law preempts Oregon's concealed handgun licensing statutes under these circumstances. The sheriff advances two arguments in that regard. First, he contends that Oregon's concealed handgun licensing statutes create an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting legislation regarding controlled substances and firearms. Second, he argues that federal law prohibits him from making any misleading statement likely to deceive a firearms dealer regarding petitioner's right to possess a handgun, see 18 U.S.C. § 922(a)(6), and that by issuing her a concealed handgun license, he might violate that law by misleading a dealer to believe that petitioner can legally possess a handgun.
We begin with the sheriff's primary argument—that Oregon's concealed handgun licensing statutes are preempted in this case by section 922(g) of the federal Gun Control Act. That provision of federal law, as quoted above, prohibits "an unlawful user * * * of any controlled substance" from "possess[ing] in or affecting commerce * * * any firearm or ammunition[.]" Oregon's concealed handgun licensing statutes, meanwhile, require the sheriff to issue a concealed handgun license if certain criteria are met, without regard to whether the person is "an unlawful user * * * of any controlled substance" within the meaning of section 922(g) of the federal Gun Control Act.
The relationship between the federal Gun Control Act and state law is expressly addressed in section 927 of the federal act:
"No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together."
So, by the terms of the federal Gun Control Act, states remain free to pass laws on the "same subject matter" as the federal act
[ 234 P.3d 145 ]
unless there is a "direct and positive conflict" between the state and federal laws "so that the two cannot be reconciled or consistently stand together."
The Oregon Supreme Court recently analyzed federal preemption under a similar preemption provision in Emerald Steel Fabricators, Inc. v. BOLI,348 Or. 159, 230 P.3d 518 (2010) (Emerald Steel), thereby charting the course for our analysis. In Emerald Steel, the court explained that, when a federal law contains a preemption provision like the one at issue here,5 the question is one of "implied preemption." 348 Or. at 175, 230 P.3d 518 (citing Wyeth v. Levine, ___ U.S. ___, 129 S.Ct. 1187, 1196-1200, 173 L.Ed.2d 51 (2009)). Under the implied preemption test, the court asks whether there is an "actual conflict" between state and federal law, which can occur in either of two circumstances: One, when it is physically impossible to comply with both state and federal law, or, two, when state law "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" 348 Or. at 175, 230 P.3d 518 (quoting Freightliner Corp. v. Myrick,514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal quotation marks omitted)).
Here, the sheriff makes no argument that it is "physically impossible" to comply with both ORS 166.291 and section 922(g) of the federal act, and for good reason: It is not, in fact, physically impossible to comply with the Oregon law and the federal law. Not only do the statutes address conduct by two different persons—issuance of a permit by the sheriff under state law, versus possession of a firearm by the controlled substance user under the federal law—but a controlled substance user, even if issued a concealed handgun license, might never actually obtain a firearm. Cf. Emerald Steel, 348 Or. at 176, 230 P.3d 518 (explaining that it is not physically impossible to comply with inconsistent state and federal laws regarding marijuana use, because a person can comply with both by refraining from any use of marijuana; and explaining that implied preemption cases have typically turned on the second prong of the analysis, as the "physical impossibility" prong has grown "vanishingly narrow"). Rather, the sheriff's argument—and the real debate in this case—is whether Oregon's concealed handgun licensing statutes stand as an obstacle to the accomplishment and execution of the federal Gun Control Act.
In Emerald Steel, a case involving the intersection between the federal Controlled Substances Act and Oregon's Medical Marijuana Act, the Supreme Court explored in detail that second prong of the implied preemption analysis. After canvassing the pertinent decisions of the United States Supreme Court—particularly, Barnett Bank v. Nelson,517 U.S. 25, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), and Michigan Canners & Freezers v. Agricultural Bd.,467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984)—our Supreme Court explained:
"Affirmatively authorizing a use that federal law prohibits stands as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act. Michigan Canners, 467 U.S. at 478 [104 S.Ct. 2518]. To be sure, state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so. But the state law at issue in Michigan Canners did not prevent the federal government from seeking injunctive and other relief to enforce the federal prohibition in that case. Rather, state law stood as an obstacle to the enforcement of federal law in Michigan Canners because state law affirmatively authorized the very conduct that federal law prohibited, as it does in this case.
[ 234 P.3d 146 ]
"To the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it `without effect.' See Cipollone v. Liggett Group, Inc.,505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (`[Since our decision in McCulloch v. Maryland, 4 Wheat. 316, 427 [4 L.Ed. 579] (1819), it has been settled that state law that conflicts with federal law is "without effect.'"). Because ORS 475.306(1) was not enforceable when employer discharged employee, no enforceable state law either authorized employee's use of marijuana or excluded its use from the `illegal use of drugs,' as that phrase is defined in ORS 659A.122(2) and used in ORS 659A.124. It follows that BOLI could not rely on the exclusion in ORS 659A.122(2) for `uses authorized * * * under other provisions of state * * * law' to conclude that medical marijuana use was not an illegal use of drugs within the meaning of ORS 659A.124."
Emerald Steel, 348 Or. at 178, 230 P.3d 518 (emphasis added).
In this case, the sheriff contends that, like the preempted provision of Oregon's Medical Marijuana Act, the statute mandating issuance of a concealed handgun license, ORS 166.291, "purports to authorize what federal law prohibits." The sheriff reasons as follows: As a regular user of marijuana, petitioner is an "unlawful user" of a "controlled substance" for purposes of the federal Gun Control Act, and under federal law, petitioner is prohibited from possessing a firearm in or affecting commerce. 18 U.S.C. § 922(g). If petitioner cannot lawfully possess a firearm, she certainly cannot lawfully possess a concealed handgun. Accordingly, the sheriff argues, "[any state law, including ORS 166.291 et seq, which purports to authorize what federal law prohibits is preempted under both the federal statute and the Supremacy Clause, Article VI of the United States Constitution." Said another way, "The state law which purports to authorize [petitioner] to carry a concealed weapon contravenes the federal statute which prohibits [petitioner], as an unlawful user of a controlled substance, from possessing a weapon."
The linchpin of the sheriff's preemption argument is that Oregon's concealed handgun licensing statutes authorize a licensee to possess a concealed handgun. That is an oversimplified—and incorrect—characterization of the right to bear arms in general, and of the effect of the concealed handgun licensing statutes in particular. The right to possess a handgun does not flow from Oregon's concealed handgun licensing statutes; the right to carry a firearm is constitutional in origin. Or. Const., Art. I, § 27 ("The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]"); see generally State v. Hirsch,338 Or. 622, 114 P.3d 1104 (2005) (tracing the right to bear arms in Oregon). Throughout the state's history, the legislature has placed a number of limitations on that right. Id. at 652, 114 P.3d 1104 ("The legislature did not act to prohibit the carrying of concealed weapons until 1885 and did not act to limit the possession of firearms by felons—or the possession of certain arms by any persons—until 1925.").6 One set of present limitations can be found in ORS 166.250. That statute, which concerns unlawful possession of a firearm, provides, in part:
"(1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly:
"(a) Carries any firearm concealed upon the person;
"(b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or
"(c) Possesses a firearm and:
"(A) Is under 18 years of age;
"(B)(i) While a minor, was found to be within the jurisdiction of the juvenile court
[ 234 P.3d 147 ]
for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; and
"(ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section;
"(C) Has been convicted of a felony;
"(D) Was committed to the Oregon Health Authority under ORS 426.130;
"(E) Was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or
"(F) Has been found guilty except for insanity under ORS 161.295 of a felony."
ORS 166.250 (emphasis added).
ORS 166.291 to 166.295, the statutes pertaining to concealed handgun licenses, do not affirmatively grant a licensee the right to carry a handgun. Rather, as ORS 166.250(1)(a) exemplifies, the legal effect of a concealed handgun license is to exempt the licensee from state laws that would otherwise prohibit concealment of that firearm. See, e.g., ORS 166.173(2)(c) (city or county ordinances to regulate, restrict, or prohibit the possession of loaded firearms in public places as defined in ORS 161.015 do not apply to "[a] person licensed to carry a concealed handgun"); ORS 166.260(1)(h) (ORS 166.250 does not apply to "[a person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun"); ORS 166.370(3)(d) (prohibition on possession of firearm in public building in ORS 166.370(1) does not apply to "[a] person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun"); ORS 166.663(2)(g) (statutory prohibition on casting artificial light while in possession of certain weapons does not apply when "the person has been issued a license under ORS 166.291 and 166.292 to carry a concealed weapon"). Thus, a concealed handgun licensee—marijuana user or not—is not affirmatively authorized to carry a firearm by way of Oregon's concealed handgun licensing statutes; what the licensing statutes do is provide an exemption from state criminal liability for concealing a handgun that the licensee independently has a right to possess.
The distinction between a statute that exempts certain conduct from state criminal liability and one that affirmatively authorizes conduct is not purely semantic, as the court's opinion in Emerald Steel demonstrates. The state law at issue in that case, ORS 475.306(1), affirmatively authorized a medical marijuana cardholder to "engage in * * * the medical use of marijuana." Under a different provision of Oregon's Medical Marijuana Act, ORS 475.309, a cardholder was also exempted from state criminal prosecution for the possession, distribution, and manufacture of marijuana, provided certain conditions were met. The Supreme Court held that the former was preempted because it authorized what federal law prohibited. 348 Or. at 178, 230 P.3d 518. However, the court was careful to limit the scope of its holding in that respect: "[We do not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability." 348 Or. at 172 n. 12, 230 P.3d 518 (emphasis added).
Indeed, in response to the dissent, the court further explored the differences between state laws that authorize what federal law prohibits and those state laws that merely exempt federally prohibited conduct from state criminal liability:
"As noted, the dissent also advances what appears to be an alternative ground for its position. The dissent reasons that ORS 475.306(1) does not affirmatively authorize the use of medical marijuana; it views that subsection instead as part of a larger exemption of medical marijuana use from state criminal laws. The dissent's reasoning is difficult to square with the text of ORS 475.306(1). That subsection provides that a person holding a registry identification card `may engage' in the limited use of medical marijuana. Those are words of authorization, not exemption. Beyond that, if ORS 475.306(1) were merely part of a larger exemption, then no provision of state law would authorize the use of medical marijuana. If that were true, medical marijuana use would not come within one of the exclusions from the `illegal use of drugs,' as that phrase is defined in ORS 659A.122, and the protections
[ 234 P.3d 148 ]
of ORS 659A.112 would not apply to employee. See ORS 659A.124 (so providing).
"Another thread runs through the dissent. It reasons that, as a practical matter, authorizing medical marijuana use is no different from exempting that use from criminal liability. It concludes that, if exempting medical marijuana use from criminal liability is not an obstacle to the accomplishment of the purposes of the Controlled Substances Act and is thus not preempted, then neither is a state law authorizing medical marijuana use. The difficulty with the dissent's reasoning is its premise. It presumes that a law exempting medical marijuana use from liability is valid because it is not preempted. As the Attorney General's opinion explained, however, Congress lacks the authority to compel a state to criminalize conduct, no matter how explicitly it directs a state to do so. When, however, a state affirmatively authorizes conduct, Congress has the authority to preempt that law and did so here. The dissent's reasoning fails to distinguish those two analytically separate constitutional principles."
Emerald Steel, 348 Or. at 185-86, 230 P.3d 518 (emphasis added; footnote omitted).
ORS 166.291, although denominated a "licensing" statute, plainly operates to provide an exemption from state criminal liability. It does not contain language that purports to independently authorize possession of a handgun. In fact, read in isolation, ORS 166.291 does nothing but state that the license shall issue; and none of the concealed handgun licensing statutes says anything about the legal effect of the license. It is only when read in conjunction with other statutes, such as ORS 166.250, that it becomes clear what legal effect the license has—exemption from state criminal prosecution for concealing a weapon and from related criminal statutes. In that way, ORS 166.291 is similar to those portions of the Oregon Medical Marijuana Act that exempt medical marijuana users from state criminal liability, and it is dissimilar to the preempted provision of that act, ORS 475.306(1), which affirmatively authorized conduct that federal law prohibited.
In sum, the circuit court correctly concluded that Oregon's concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.
We likewise reject the sheriff's alternative contention that, "by granting an unlawful user of a controlled substance a concealed handgun [license] under state law, [the sheriff] potentially violates federal law himself." The sheriff's argument depends on the interplay between two provisions of 18 U.S.C. section 922. First, the sheriff points to section 922(a)(6), which makes it unlawful for any person "knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive" an importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of a firearm or ammunition under the provisions of the federal Gun Control Act.
Second, the sheriff directs us to section 922(t), the provision that, according to him, makes it likely that a firearms dealer, manufacturer, or importer would rely upon and be deceived by the issuance of an Oregon concealed handgun license to a controlled substances user. Section 922(t)(1) requires a licensed importer, manufacturer, or dealer of firearms to follow certain procedures, including contacting the "national instant criminal background check system," before transferring a firearm to a person who is not licensed under the federal law. Paragraph (3) of the statute then provides an exception to that process:
"Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if—
"(A)(i) such other person has presented to the licensee a permit that—
"(I) allows such other person to possess or acquire a firearm; and
"(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and
[ 234 P.3d 149 ]
"(ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law[.]"
Under section 922(t)(3), the sheriff contends, a concealed handgun license "is an affirmative assurance that a law enforcement agency has conducted a background check and determined that the applicant is not prohibited from possessing a firearm," thereby allowing the otherwise federally required background check for purchasing a firearm to be waived. Consequently, the sheriff argues, "if [he] were to issue a concealed handgun license to [petitioner], an unlawful user of controlled substances, the handgun license would be representation from the Sheriff that [petitioner] is not prohibited under federal law from possessing a firearm."
The sheriff, as petitioner and the circuit court have correctly pointed out, misreads section 922(t)(3). First, the sheriff's shorthand description of section 922(t)(3)—that it provides an exception to federal background check requirements where the local law enforcement officials have conducted a background check—is inaccurate. The exception set forth in section 922(t)(3) is not triggered simply because local law enforcement officials have conducted a "background check" before issuing a concealed handgun license; rather, the state government official must have "verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law." That is a different requirement from a "background check."
But more to the point, section 922(t)(3) does not impose any obligations on the sheriff with respect to the issuance of a concealed handgun license. The statute does not require him to verify whether possession of a firearm "would be in violation of law." Rather, the law provides certain firearms importers, manufacturers, and dealers with an exception to national instant background check requirements if the law of Oregon requires the sheriff to first determine whether the applicant's possession "would be in violation of law." (And on that point, the sheriff meets himself coming and going; his complaint about ORS 166.291 is that it requires him to issue a concealed handgun license even though the applicant's possession of the firearm would be in violation of federal law.)
In sum, we are not persuaded that the sheriff is being forced to violate—or even potentially violate—any federal law by issuing a concealed handgun license pursuant to Oregon's concealed handgun licensing statutes. Likewise, there is no "direct conflict" between those licensing statutes—which only provide an exemption from state criminal liability—and the federal Gun Control Act. For those reasons, we affirm the judgment of the circuit court.
Affirmed.
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Footnotes
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* Brewer, C.J., vice Edmonds, P.J.
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1. For ease of reference, we refer to the Gun Control Act of 1968 and its subsequent amendments as the "federal Gun Control Act."
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2. Under ORS 166.291, the applicant must be a person who:
"(a) * * * Is a citizen of the United States [or legal resident alien who can document continuous residency and has officially declared intent to acquire citizenship];
"(b) Is at least 21 years of age;
"(c) Is a resident of the county;
"(d) Has no outstanding warrants for arrest;
"(e) Is not free on any form of pretrial release;
"(f) Demonstrates competence with a handgun by any one of [certain enumerated methods, such as completion of certain courses] * * *
"(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;
"(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;
"(i) Has not been committed to the Oregon Health Authority under ORS 426.130;
"(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;
"(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;
"(l) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program, [with enumerated exceptions] * * *
"(m) Is not subject to a [stalking] citation * * * or an order issued under [stalking prevention laws];
"(n) Has not received a dishonorable discharge from the Armed Forces of the United States; and
"(o) Is not required to register as a sex offender in any state."
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3. ORS 166.291(4) provides that "[application forms for concealed handgun licenses shall be supplied by the sheriff upon request." The statute then provides that "[t]he forms shall be uniform throughout the state" and in "substantially the * * * form" of a model application set out in the statute. Id. The model form includes questions about prior convictions involving controlled substances and participation in court supervised diversion programs but does not otherwise inquire about the use of controlled substances. Petitioner does not directly challenge the sheriff's deviation from the model form in this case.
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4. Under ORS 166.293(2), a sheriff may deny a concealed handgun license even though the criteria in ORS 166.291(1) are met, if the sheriff "has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant's mental or psychological state or as demonstrated by the applicant's past pattern of behavior involving unlawful violence or threats of unlawful violence."
That statute is not at issue in this case.
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5. In Emerald Steel, the preemption provision at issue, section 903 of the Controlled Substances Act, authorized states to pass laws "on the same subject matter" as the Controlled Substances Act unless there is a "positive conflict" between state and federal law "so that the two cannot consistently stand together." 348 Or. at 174-75, 230 P.3d 518 (quoting 21 USC section 903). The court drew on the United States Supreme Court's analysis of the preemption provision at issue in Wyeth—a preemption provision that was virtually identical to section 927 of the federal Gun Control Act. See 348 Or. at 175 n. 15, 230 P.3d 518 (describing "direct and positive conflict" preemption provision in Wyeth).
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6. See also id. at 651, 114 P.3d 1104 (noting that "[in 1869, 10 years after the adoption of the Oregon Constitution, the legislature enacted a statutory right as to certain firearms for white male citizens, with no exceptions").
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IN RE SMITH
236 P.3d 137 (2010)
348 Or. 535
In re Complaint as to the Conduct of Frederick T. SMITH, Accused.
(OSB 07-53; SC S056148).
Supreme Court of Oregon, En Banc.
Argued and Submitted May 13, 2010.
Decided July 15, 2010.
Frederick T. Smith, Portland, argued the cause and filed the briefs in propria persona.
Mary A. Cooper, Assistant Disciplinary Counsel, argued the cause and filed the brief for the Oregon State Bar.
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PER CURIAM.
In this lawyer disciplinary proceeding, the Oregon State Bar charged Frederick T. Smith (the accused) with four violations of the Oregon Rules of Professional Conduct (RPC) in connection with his representation of a client, Rochelle Leveque, in 2005. Specifically, the Bar alleged that the accused violated RPC 3.1 (taking action on behalf of a client with no nonfrivolous basis); RPC 4.1(a) (making a false statement of material fact or law to a third person in the course of representing a client); RPC 8.4(a)(2) (committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects); and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness to practice
[ 236 P.3d 139 ]
law). Following a hearing, a trial panel of the Disciplinary Board concluded that the accused had violated the rules as alleged and suspended the accused for 90 days.
The accused seeks review pursuant to ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1, challenging the findings and conclusions of the trial panel with respect to each alleged violation. We review bar disciplinary matters de novo. ORS 9.536(2); BR 10.6. The alleged misconduct must be proved by clear and convincing evidence. BR 5.2. For the reasons that follow, we conclude that the accused violated the four rules listed above. We also conclude that the accused should be suspended for 90 days.
I. FACTUAL BACKGROUND
The charges against the accused arise out of his advice to Leveque and his conduct in connection with a dispute between Leveque and her employer, The Hemp & Cannabis Foundation (the corporation),1 which operated a clinic that helped patients register for the Oregon Medical Marijuana Program. In brief, Leveque, who had been asked to leave the clinic premises in early October 2005 due to an issue with another employee — and who had not thereafter returned to work—entered the clinic with several other individuals before business hours on November 14, 2005, and attempted to physically take over management of the clinic. The accused also came to the clinic that morning, in the course of his representation of Leveque, and participated in the events as described below. Eventually, after the corporation's attorney and the police arrived, the accused, Leveque, and the others who had come with Leveque left.
Many of the facts were disputed during the hearing, and the trial panel (and this court) faced the added difficulty that Leveque died before the hearing and did not testify. Nevertheless, the trial panel generally found the facts as alleged by the Bar.2 Although the accused correctly identifies certain factual errors in the trial panel's opinion, based on our de novo review, the findings that we make are consistent with most of the trial panel's findings. We first describe the context of the event that led to the Bar's charges and then, in discussing each alleged violation, we set out additional facts related to that violation. Except as otherwise noted, we find each of the facts stated below by clear and convincing evidence.
The accused met Leveque in 2004 when he became a patient at the clinic while Leveque was employed there. In 2005, Leveque asked the accused for legal advice about difficulties that she was having with her employer and Paul Stanford, who ran the clinic and several similar clinics in other states. The accused agreed to represent Leveque. Although the parties disagree about Stanford's exact position with the corporation in 2005, it is undisputed that he was the sole incorporator of the corporation when it was established in 1999, that an October 2005 printout from the Secretary of State's online business names registry identified him as president, and that, at the time of the events at issue here, employees of the corporation (including Leveque) considered him to be in charge of the corporation's business.
On October 7, 2005, as noted above, the clinic manager asked Leveque to go home. She attempted to file an unemployment claim, although she told the accused that she was uncertain whether she had been fired. Over the next month, Leveque did not return to work at the clinic; however, she was apparently attempting to get back (or retain) her job and still had a key to the clinic.
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Meanwhile, the accused contacted Ann Witte, the corporation's attorney, to attempt to resolve Leveque's employment dispute. Leveque also had a number of concerns about the way the corporation was being run by Stanford—including whether revenues were being appropriately accounted for, whether corporate assets were improperly being used to advocate for marijuana legalization, and other corporate governance issues —and the accused advised Leveque in connection with those issues. As part of his legal work for Leveque, the accused researched the corporation's status.
We pause briefly to discuss the law regarding the administrative dissolution of nonprofit corporations, because it relates to the accused's position that he gave sound legal advice and that he relied in good faith on information that he had received from the Secretary of State's office. A nonprofit corporation, like the corporation here, that fails to file an annual report (or to take certain other required actions) may be dissolved by action of the Secretary of State if it does not correct the grounds for dissolution after receiving notice of its deficiencies. See ORS 65.647 (describing grounds for administrative dissolution); ORS 65.651 (describing procedure for administrative dissolution). A corporation that is administratively dissolved "continues its corporate existence but may not carry on any activities except those necessary to wind up and liquidate its affairs." ORS 65.651(3). However, within five years of the dissolution, a corporation may apply for "reinstatement," which, if allowed, relates back to the date of the administrative dissolution, "and the corporation resumes carrying on its activities as if the administrative dissolution had never occurred." ORS 65.654(1), (3). (Moreover, the five-year reinstatement deadline can be waived by the Secretary of State for "good cause." ORS 65.654(4).) Expert testimony at the disciplinary hearing established that it is common for nonprofit corporations to fail to file required reports or notices, to be administratively dissolved, and then to be reinstated. Indeed, the corporation here has been administratively dissolved and reinstated at least three times.
In researching the corporation's status, the accused obtained a certificate dated October 31, 2005, from the Secretary of State, which stated that the corporation had been "administratively dissolved" for more than five years. That certificate, however, was inaccurate. The person who prepared the certificate inserted the original date of incorporation (August 19, 1999) in the certificate as the date of dissolution, rather than the actual date of the most recent administrative dissolution (October 14, 2005), thus incorrectly indicating that the dissolution had occurred more than five years before the date of the certificate. In fact, the Secretary's business names registry, available to the public through the Secretary's website, shows (accurately) that the corporation had been dissolved for less than a month on October 31, 2005, and therefore easily could have been reinstated. As discussed further below, the accused maintains that he did not check the website and did not know, at the time of the events that led to this proceeding, that the certificate that he had obtained from the Secretary of State was inaccurate.
The accused also claims that in November 2005 he believed—because he believed that the corporation had been administratively dissolved for more than five years, and because he had found no records indicating that Stanford was an officer or director of the corporation—that Stanford had no legal authority within the corporation and that he had improperly "operated it as though it was his personal asset." The accused explained to Leveque, however, that she "had no claim against the corporation because she had no standing." He told her, "the only route that you can take here is to go through the attorney general." The accused and Leveque agreed that the appropriate course for her to raise her concerns about the governance of the corporation would be to file a complaint with the Attorney General.
On November 9, 2005, when Witte had not responded to the accused's attempts to contact her, the accused sent Witte a letter discussing Leveque's employment issue and her complaints about Stanford's running of the corporation. He noted that Leveque's "route to right the wrongs which have occurred
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on the former leader[']s watch is to file a complaint with the Oregon Attorney General's office." He stated that he was "very familiar with the process" and that, after a complaint is filed, the Attorney General "issues an immediate Cease and Desist Order and enforces that order." The accused informed Witte that if she did not contact him by November 15, he would file a complaint with the Attorney General.
After sending the November 9 letter, the accused met with Leveque. According to the accused, once Leveque saw the threat to go to the Attorney General in writing, she "freaked out." Leveque was concerned that the Attorney General might shut down the clinic and that, as a result, thousands of patients would not be able to get access to medical marijuana. The accused told Leveque that he could not assure her with certainty that the Attorney General would not shut down the clinic if he filed the complaint.
According to the Bar, the accused then advised Leveque that another option would be to go to the clinic, use her key to enter before business hours, and physically take over. The accused claims, however, that Leveque decided on her own that she would use her key to open the office and attempt to take over management of the clinic. He then advised her that she had "equal rights with Mr. Stanford" to run the clinic and that he could defend her from criminal or civil actions that might arise out of an attempted takeover.
On November 14, 2005, as noted, Leveque and some other individuals (including a nurse, a doctor, a computer technician, and a locksmith) arrived at the clinic before it opened and before any employees were there. Leveque used her key to let them in. The locksmith began changing the locks, and others attempted to begin working on the clinic's computers. The accused also came to the clinic that morning, although he states that he came separately from Leveque. The first employee of the clinic to arrive was Kim Murphy, whose job was to open the clinic for business. Murphy testified that Leveque, her associates, and the accused were inside the clinic when she arrived at about 7:45 a.m. When Murphy asked Leveque what was going on, Leveque told her, "We're taking over the clinic." Other clinic employees who arrived testified that Leveque made similar statements to them. At one point, Leveque began taking patient schedules and placing them in her bag.
At least two clinic employees, office manager Janus Brown and clinic administrator Scott Carr, told Leveque and the accused to leave. They refused. The accused maintains that he believed at that time that the lease was in the corporation's name and that, because he believed that Stanford had no legal authority to run the corporation, neither Stanford nor those working for him had any right to direct them to leave the premises.
At some point, a clinic employee called the police. According to police records, the initial call came at 9:32 a.m., and the first police officers arrived at the scene at 9:37 a.m. A clinic employee also phoned Stanford, who was in Hawaii; Stanford phoned Witte. Witte arrived at the clinic at about the same time as the police.
According to the Bar, the accused told clinic employees and the police that he and Leveque had a court order or some written authorization from the Attorney General to be there. According to the accused, he said only that he had a complaint letter that he had drafted to send to the Attorney General. He claims that he showed the complaint letter to the police and Witte and told them that he was going to go to the Attorney General the following day if Leveque's issues could not be resolved.
The police attempted to resolve the dispute. Sergeant Kim Keist understood that Leveque believed that the clinic was not being properly operated and that there was a disagreement over who had the right to run the clinic. It was her view at the time, which she explained to Leveque and the accused, that this was a civil dispute that would have to be resolved in court and that Leveque —because she had "walked away from [the clinic]"—was not authorized to enter the clinic and take it over. In the meantime, someone had contacted the landlord, who
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faxed the lease agreement to the clinic. The lease showed the corporation as the lessee and Stanford as the "guarantor." After the accused saw the lease, he advised Leveque and her associates to leave, and they all left the premises. The police left the scene at 10:27 a.m.
II. ALLEGED VIOLATIONS
A. RPC 3.1
The Bar argues that the accused violated RPC 3.1 when he told Leveque that (1) she was legally entitled to take over the clinic and (2) she was legally entitled to enter the clinic's premises when it was closed to the public. Indeed, the Bar suggests that the accused knew in advance that Leveque intended to try to take over the clinic and that he assisted in that effort, also in violation of RPC 3.1. RPC 3.1 provides:
"In representing a client or the lawyer's own interests, a lawyer shall not knowingly bring or defend a proceeding, assert a position therein, delay a trial or take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law, except that a lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration may, nevertheless[,] so defend the proceeding as to require that every element of the case be established."
(Emphases added.)
Although the Bar and the accused focus on whether the accused's legal advice to Leveque had a nonfrivolous basis, we note that the Bar did not charge the accused with failing to "provide competent representation to a client," in violation of RPC 1.1. The text of RPC 3.1 refers not to legal advice, but to a lawyer's "action on behalf of a client." The word "action," in this context, appears to mean "a thing done: DEED." See Webster's Third New Int'l Dictionary 21 (unabridged ed 2002) (defining "action"). Moreover, the rule uses the phrase "other action on behalf of a client," in contrast to the "actions" mentioned earlier in the rule, viz., "bring[ing] or defend[ing] a proceeding, assert[ing] a position therein[, or] delay[ing] a trial." RPC 3.1 (emphasis added). Giving legal advice to a client is "a thing done," a "deed." So is appearing with a client at premises over which the client believes she has a right to assert control and acting with and on behalf of the client in discussions with other persons on the premises and with police. We conclude that the accused's advice to Leveque and his conduct on November 14, 2005, in the course of representing her were "action[s]" within the scope of RPC 3.1. The pivotal factual issue, then, is whether defendant took the actions alleged by the Bar. If he did, the pivotal legal issue is whether there was a nonfrivolous basis in law or fact for the accused's actions.
As to the factual dispute, the accused argues that he did not advise Leveque that she had the right to take over the clinic or to enter the premises before the clinic was open to the public. Instead, he argues, the actions that Leveque took on November 14, 2005, were on her own initiative; he advised her only that she had as much right as Stanford to run the clinic and that he thought that he could defend her in any resulting civil or criminal proceedings if she chose to attempt to take over the clinic.3 He claims that, based on his understanding of the facts when he gave the advice (including the legal status of the corporation), his advice was legally sound. He also appears to argue that, even if he had advised Leveque that she had a right to take over the clinic, that advice would have been sound as well. He asserts that the legal doctrines of "choice of evils" and "self-help" support his position.
The Bar's theory that defendant assisted Leveque in planning to take over the clinic is plausible and is supported by some circumstantial
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evidence. Nevertheless, in the absence of testimony from Leveque, and given the accused's denials, we do not find by clear and convincing evidence that the accused worked with Leveque in advance to plan the attempted "takeover." That said, clear and convincing evidence does support the Bar's contentions that (1) the accused appeared at the clinic early on the morning of November 14 in the course of his representation of Leveque and asserted to Witte and Officer Keist that Leveque had the same right to operate the clinic as did Stanford and therefore had the right to take over physical control of the clinic, and (2) the accused previously had told Leveque that she could assert the defenses of "choice of evils" and "self-help" in response to any civil or criminal proceedings that might arise if she attempted to take over the clinic.
We turn to the legal issue, whether the accused made those statements and gave that advice without "a basis in law and fact for doing so that is not frivolous." Id. We conclude that he did.
Even if the accused's advice that Leveque and Stanford had an "equal" right to operate the clinic had a nonfrivolous basis in law or fact, that nevertheless would not justify his position that Leveque could use "self-help" to take physical control of the clinic's operations or the accused's participation in her efforts to do just that. Both the Bar's and the accused's experts agreed that the nonprofit corporation laws do not give an employee any legal authority to walk in and take over an operating nonprofit corporation, even if the corporation has been administratively dissolved for more than five years. Although certain statutes authorize "self-help" remedies in some contexts, see, e.g., ORS 79.0609(2)(b) (secured party's right to self-help under Uniform Commercial Code), the accused cites no statute or case that supports his contention that Leveque, as a current or former employee of the clinic, was authorized to enter the clinic and claim that she was "taking over" because she disagreed with various aspects of the way the clinic was being operated. Further, the accused has not demonstrated that he acted in furtherance of a "good faith argument for an extension" of the self-help remedies that are permitted, in certain limited circumstances, under current law. See RPC 3.1 (defining "frivolous").
The accused also argues that the "choice of evils" doctrine supports his advice to Leveque and his and Leveque's conduct, although the precise nature of his argument is unclear. He appears to be attempting to demonstrate that his statement that he could defend Leveque from a trespass action for entering the clinic before business hours was not frivolous. He also appears to argue that the choice of evils defense applies to Leveque's attempt to take over the clinic.
In describing the defense, the accused cites Black's Law Dictionary, which defines "necessity" as "[a] privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another's property in an effort to protect life or health." He argues that Leveque was attempting to "protect life or health" by taking over the clinic, because she believed that, if she complained to the Attorney General, he would shut down the clinic and the patients would have no way to get their medical needs met. To state the accused's argument is to refute it. Leveque had an "alternative"—not complaining to the Attorney General. Moreover, even if she had complained to the Attorney General, the accused does not indicate why Leveque would have been justified in believing that the Attorney General would act in a way that would harm "life or health" and why, as a result, her only alternative was to trespass and attempt to take over the clinic.4
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The accused also cites two cases—La Grande/Astoria v. PERB,281 Or. 137, 576 P.2d 1204 (1978), and Sizemore v. Myers,327 Or. 456, 964 P.2d 255 (1998)—that he claims demonstrate "the breadth that Oregon courts apply to this concept of choice between competing values." In La Grande/Astoria, the court noted that competing policies advanced by state and local governments "must often involve a choice among values," and then noted that "[s]uch choices are the essence of political, not judicial, decision." 281 Or. at 148, 576 P.2d 1204. The accused claims that that "choice among values" is "directly analogous to the [a]ccused's dilemma when navigating the uncharted waters of non-profit corporation law."
Sizemore involved a challenge to a ballot title explanatory statement composed by a committee directed by statute to prepare such a statement. In determining that that statute did not require the explanatory statement to explain the effect of the measure, the court examined the statute's legislative history. The court concluded that that history showed that "the requirement that the explanatory statement committees explain such effects left divided committees with a choice of two evils—either have an acrimonious debate concerning the potential effect of a measure or disobey the law and omit the effect from the explanatory statement altogether." Sizemore, 327 Or. at 466, 964 P.2d 255 (first emphasis in original; second emphasis added).
We are not persuaded. Neither LaGrande/Astoria nor Sizemore has any bearing on the accused's claim that the positions he took in the course of representing Leveque were not frivolous. They were.
The accused claims that, to the extent that he is incorrect in his legal conclusions, he believed, when advising Leveque and acting on her behalf, that those conclusions were correct. We find, however, that the accused knew that the positions he took in the course of representing Leveque were frivolous. First, the accused's claim is undermined both by his advice to Leveque that her only redress for any concerns that she had about the corporation was to seek the assistance of the Attorney General and by his letter to Witte, in which he made a similar statement. Second, as discussed in greater detail below, on the morning of November 14, the accused lied to various individuals at the clinic, telling them that he had some written authorization permitting Leveque and her associates to take over the clinic. That supports the Bar's position that the accused knew that, without some such authorization, he and Leveque had no legal right—self-help or otherwise—to take over the clinic. Finally, the accused has practiced law in Oregon for more than 40 years, has substantial experience in securities and corporate litigation, and has some experience working with nonprofit corporations. He is a sophisticated lawyer with extensive experience. We find that the accused knew that his advice to his client—that she had some legal basis for her attempt to take control of the clinic's operations—was frivolous.
B. RPC 4.1(a) and RPC 8.4(a)(3)
The Bar alleged that, during the attempted takeover, the accused told various people that he had written authorization from some government entity to take over the clinic. The trial panel agreed and concluded that the accused had violated RPC 4.1(a) and RPC 8.4(a)(3). RPC 4.1(a) provides:
"In the course of representing a client a lawyer shall not knowingly:
"(a) make a false statement of material fact or law to a third person[.]"
RPC 8.4(a)(3) provides:
"It is professional misconduct for a lawyer to:
"* * * * *
"(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer's fitness to practice law[.]"
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The accused responds that the Bar did not demonstrate that he violated either rule because it failed to prove, by clear and convincing evidence, that he had told anyone that he or Leveque had written authorization to take over the clinic. We disagree. Two clinic employees who were present at the time of the attempted takeover testified that the accused told them that he had authorization from the Attorney General or a court order to take over the clinic.
First, Janus Brown, the clinic manager, in describing the attempted takeover, testified as follows:
"So when [the accused] addressed me by my name I just said, What is going on and how come you can do this?
"And he said something about the attorney general, like they've got permission to do this. And I was just floored, and I immediately went to my desk * * * and called Paul [Stanford] * * *.
"* * * * *
"And I'm going, Oh, my god, Paul, I don't know what's going on but, you know, she's got a lawyer here. And he said, you know, in essence, what it seemed to me that he had permission from the attorney general to be in and I don't know what's going on."
Scott Carr, a clinic administrator, testified that when he asked the accused to leave during the attempted takeover, the accused "stepped forward and said that he had a court order to be there[.]" When asked if the accused showed him the order, Carr testified,
"No. He was kind of, you know, fondling his * * * briefcase as if he, you know, had * * * you know, he held it up halfway * * * you know, as if he was prepared to produce it, but I didn't know what he was talking about."
He also testified,
"He had a leather briefcase as I remember. And when I had asked him to leave, he stepped forward and held it up halfway in front of his torso and said, I have a court order, I believe he said, from the attorney general to be here."
In addition, Witte similarly testified that she heard the accused state or imply to the police that he had an order from the Attorney General authorizing Leveque to take control of the clinic.
Although the accused cross-examined the witnesses at length as to the specific persons to whom the accused allegedly made his remarks and whether he referred to a "court order" or to some official document from the Attorney General, the three witnesses all clearly testified that they heard the accused state that he had a government document that authorized Leveque's actions.5 We find that the Bar proved by clear and convincing evidence that the accused made such statements. We also find that the statements were false. The accused did not at that time (or at any later time) have any official authorization from the Attorney General or a court for Leveque or the accused to take control of the clinic or any other aspects of the corporation's operations.
A lawyer violates RPC 4.1(a) if, in the course of representing a client, he or she knowingly makes a "false statement of material fact." A lawyer violates RPC 8.4(a)(3) if he or she engages in conduct involving "dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer's fitness to practice law." Here, the Bar contends that the accused engaged in conduct involving "misrepresentation." The Bar therefore can demonstrate both violations by demonstrating that the accused made a material misrepresentation of fact. See In re Kluge,332 Or. 251, 255-56, 27 P.3d 102 (2001) (describing requirements for violation of former rules). A fact is material if hearing that fact "would or could significantly influence the hearer's decision-making process." Id. at 255, 27 P.3d 102.
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The accused argues that, even if he made the statements described above, he did not engage in "conduct involving * * * fraud [or] deceit" under RPC 8.4(a)(3). He maintains that the terms "fraud" and "deceit" are used "in their tortious sense" in the disciplinary rules. See In re Brown,326 Or. 582, 595, 956 P.2d 188 (1998) (so noting). He argues that the Bar must therefore prove each element of the torts of fraud and deceit, including that the persons to whom the representation was made relied on the representation. See id. (describing elements). The accused contends that none of the employees relied on his alleged misrepresentation. Instead, they "insisted that the [a]ccused and his client depart [and] called the police," exactly as they would have if he had not made the misrepresentation.
Although this court did state in In re Brown that "fraud" and "deceit" were used in their tortious sense in former DR 1-102(A)(3), it also noted that a lawyer can violate the rule by engaging in "dishonest" conduct and that the Bar need not prove fraud or deceit to show a violation of the rule. The court explained the meaning of fraud and deceit because, "if the accused did violate the rule, it may be important to place a specific name on the conduct, for purposes of determining the appropriate sanction." Id. Here, the Bar argues that the accused engaged in conduct involving "misrepresentation" (not conduct involving "fraud" or "deceit"). Proof of reliance is not necessary to establish that the accused engaged in conduct involving misrepresentation. Kluge, 332 Or. at 256, 27 P.3d 102.
We conclude that the accused made statements to several individuals that he had an order or some other written authorization from the Attorney General or a court permitting the takeover. Those statements were false and the accused knew them to be false. The statements were intended to convince the employees of the corporation or the police that Leveque was authorized to take over the clinic and therefore that they should permit her to do so. They were material.6 The accused therefore violated RPC 8.4(a)(3) and RPC 4.1(a).
C. RPC 8.4(a)(2)
The Bar argues that the accused violated RPC 8.4(a)(2) by (1) trespassing at the clinic and (2) advising Leveque to trespass at the clinic. A lawyer violates RPC 8.4(a)(2) when he or she "commit[s] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]" The accused maintains that neither he nor Leveque trespassed at the clinic.7
ORS 164.245(1) provides:
"A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in a motor vehicle or in or upon premises."
An individual "enters or remains unlawfully" if he or she "enter[s] or remain[s] in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so." ORS 164.205(3)(a). Although the Bar stated in its brief that the accused arrived at the clinic during "normal business hours," and thus when the premises were "open to the public," we disagree. Testimony before the trial panel demonstrated that the accused arrived before 7:45 a.m.—when Leveque and her associates were at the clinic and before the arrival of the clinic employee who was to open the clinic for business that day.
The accused argues, however, that Leveque was "otherwise licensed or privileged" to enter because she had a key that still worked and that no one had asked her to return. Because the accused entered the clinic with Leveque, then, he, too, was "licensed or privileged" to enter.
The Bar argues that Leveque's permission to enter by way of her key was limited to use as an employee of the clinic. It argues (1) that Leveque was no longer an employee at
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the time she attempted to take over and (2) that, even if she could be considered an employee, she did not have permission to use the key "for purposes hostile to" the corporation. We agree with the Bar that Leveque's permission to use her key to enter the clinic was limited and that she acted outside of the scope of her "license or privilege" when she entered the clinic's premises before business hours on November 14, 2005, to execute her plan to take over the clinic's operations. Because Leveque did not have authority to use her key to enter the clinic for that purpose, she also did not have authority to permit the accused to accompany her onto the clinic's premises for that purpose.
Moreover, we find that the accused knew that Leveque was not authorized to use her key to enter the clinic or to grant him entry. See State v. Hartfield,290 Or. 583, 595, 624 P.2d 588 (1981) (to prove that a person is "not otherwise licensed or privileged" to enter, state must prove that "the person extending the permission or invitation was without actual authority to do so and that the entrant knew or believed there was no such actual authority"). The accused knew that Leveque was engaged in an employment dispute with the clinic and that she had not been to work at the clinic in weeks. Indeed, the accused had issued a demand letter on Leveque's behalf, and he testified before the trial panel that he had advised Leveque not to return to work until the problems with Stanford were resolved. Even assuming that Leveque remained an employee, the accused knew of her status at the clinic; he knew that she was not entering the clinic on the morning of November 14 to perform her duties as an employee.8 The Bar therefore proved, by clear and convincing evidence, that the accused committed criminal trespass when he entered the clinic before business hours.9
The accused does not dispute that, if he engaged in criminal trespass, that act "reflects adversely" on his "fitness as a lawyer." Because the criminal act here was committed "in furtherance of his legal services," the Bar argues, "[t]he connection between the criminal conduct and the [a]ccused's fitness to practice * * * requires no special analysis." We agree.
We find by clear and convincing evidence that the accused engaged in conduct that constituted the crime of criminal trespass in the second degree. Because he did so as part of his representation of a client, that conduct reflects adversely on his fitness as a lawyer. The accused violated RPC 8.4(a)(2).10
III. SANCTION
In determining the appropriate sanction, we identify a presumptive sanction based on "(1) the ethical duty violated; (2) the lawyer's mental state; and (3) the actual or potential injury caused" by the conduct. In re Paulson,346 Or. 676, 712, 216 P.3d 859 (2009). We then adjust that sanction based on the presence of aggravating or mitigating circumstances. Id. As a final step, we consider whether the sanction is consistent with Oregon case law. Id. Here, the Bar argues that the accused should be suspended for "at least" the 90 days that the trial panel imposed.
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The accused does not address the issue of the appropriate sanction.
The accused in this case violated the duties he owed to his client and to the legal system, see American Bar Association's Standards for Imposing Lawyer Sanctions 4.0, 6.0 (1991) (amended 1992) (ABA Standards) (describing duties to client and to legal system), when he knowingly provided frivolous legal advice to Leveque. He also violated his duties to the public when he engaged in criminal conduct and made misrepresentations to further that conduct. See ABA Standard 5.0 (describing duties to public).
We turn to the accused's mental state. A lawyer acts "knowingly" if he acts with the "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." ABA Standards at 7. With respect to the accused's advice to Leveque, for the reasons discussed above, we conclude that the accused "knowingly" took action on behalf of Leveque that did not have a nonfrivolous basis in fact or law.11 We also conclude that the accused knowingly or intentionally committed trespass in the second degree. As discussed previously, he knew that Leveque had been asked to leave the clinic premises following a dispute with another employee. Although Leveque still had her key to the clinic and her employment status was unclear, the accused knew that she was not authorized by Stanford or any other corporate official to use her key to enter the clinic for the purpose of taking it over. Finally, we agree with the Bar that the accused acted intentionally when he misrepresented to clinic employees and police that he had a document from the Attorney General or a court order authorizing Leveque to take over control of the clinic.
Turning to the injury caused by the accused's conduct, we conclude that the accused caused actual injury and created a risk of potential injury. First, his advice created the risk of potential injury to Leveque. Acting at least in part on the accused's advice, Leveque could have been (although she was not) prosecuted for trespass. In addition, she lost any chance to return to her employment at the clinic. The accused's advice, and his participation with Leveque when she acted on his advice, also created a risk of potential injury to Leveque and others because of the potential for a physical confrontation. The accused's misrepresentations, as well as his other conduct supporting Leveque's efforts, posed a risk of potential injury to the clinic because they might well have caused the employees to relinquish control of the clinic to Leveque, when there was no legal requirement that they do so. The clinic and its patients also suffered at least some actual injury, because its business operations were disrupted for over two hours during the attempted takeover.
The presumptive sanction is suspension. As to the accused's criminal conduct, suspension is appropriate when a lawyer "knowingly engages in criminal conduct" that is not listed in ABA Standard 5.11 (which trespass is not) and "that seriously adversely reflects on the lawyer's fitness to practice." ABA Standard 5.12. As to the accused's frivolous actions, the ABA Standards do not address the sanction for taking such action outside the context of litigation. RPC 3.1 prohibits both asserting frivolous positions in litigation and taking other frivolous "action" on behalf of a client. The closest analogy is the ABA standard that provides that a suspension is appropriate when a lawyer "knowingly violates a court order or rule, and there is injury or potential injury to a client or party." ABA Standard 6.22. We find that standard useful in suggesting, as a preliminary matter, that a lawyer who violates RPC 3.1 by knowingly taking action, including advising a client, that is without a nonfrivolous basis in law or fact, should be suspended. Finally, regarding the accused's misrepresentation, a reprimand is generally appropriate when a lawyer knowingly engages
[ 236 P.3d 149 ]
in noncriminal conduct involving misrepresentation. ABA Standard 5.13.
The Bar argues that there are two aggravating factors: the accused refused to recognize the wrongful nature of his conduct, ABA Standard 9.22(g); and the accused had substantial experience in the practice of law, ABA Standard 9.22(i). There is no dispute as to the second factor. As to the first factor, the accused, in his responses to the Bar's investigation and before the trial panel, continued to assert that he had given sound legal advice to his client. That was his principal defense to the Bar's charges. In our view, the accused's reliance on those arguments —although unavailing—cannot be used to enhance the penalty that would otherwise be imposed for his violations. The Bar also notes three mitigating factors, which we also find to be present here: the accused had no prior disciplinary record, ABA Standard 9.32(a); the accused did not have a dishonest or selfish motive, ABA Standard 9.32(b); and the accused had a cooperative attitude toward the disciplinary proceedings, ABA Standard 9.32(e).
We therefore conclude that a suspension of some term is appropriate in this case. The Bar notes several Oregon cases that it argues are similar to this one.12 It argues that the accused's conduct is most similar to that of the accused in In re Strickland,339 Or. 595, 124 P.3d 1225 (2005). In Strickland, the accused was involved in a dispute concerning the construction of a reservoir across the street from his mother's (and his) home. The accused staged a disturbance between himself and the construction workers and then called 9-1-1, claiming that the workers had threatened him. When police arrived, the accused claimed, falsely, that a construction worker had assaulted him. The Bar alleged that the accused had engaged in criminal conduct reflecting adversely on his fitness to practice law and in conduct involving dishonesty. After noting several aggravating factors (selfish motive, substantial experience, refusal to acknowledge wrongdoing, multiple offenses) and mitigating ones (no disciplinary record, cooperated with disciplinary proceedings, received other sanctions in criminal justice system), this court imposed a one-year suspension. The Bar argues that the accused's conduct here was similar to that of the accused in Strickland because he "unlawfully created a situation that predictably required police intervention."
Although Strickland bears some similarities to this case, it involved a lawyer acting with a selfish motive and with the intent to protect his own interests (and those of his mother). Moreover, the accused in Strickland clearly initiated the disruptive plan himself and was the principal actor in the plan, whereas here the accused, based on the facts as we have found them, was not the instigator of the takeover plan, although he was a participant in Leveque's effort. We do not discount the seriousness of the accused's conduct or the potential for a physical confrontation caused by his advice, but in fact the matter was resolved quickly and peacefully and, so far as this record shows, without later charges of any kind.
A case involving somewhat similar conduct to that at issue here is In re Glass,308 Or. 297, 779 P.2d 612 (1989). In Glass, the accused registered an assumed business name for a fraudulent purpose.13 The court noted that the accused had acted with a selfish motive but also determined that two mitigating factors applied—the accused had acted
[ 236 P.3d 150 ]
on the advice of his lawyer and later recognized that his conduct was wrongful. There is one important difference between Glass and this case, however. In Glass, the accused had failed to cooperate with the Bar in the disciplinary proceedings. The court noted that a 60-day suspension had been deemed appropriate for similar conduct in In re Hopp,291 Or. 697, 634 P.2d 238 (1981) (accused registered an assumed business name to harass opponent), but determined that the accused's conduct in Glass was "compounded" by his failure to cooperate, resulting in a 91-day sanction. Glass, 308 Or. at 305 n. 7, 779 P.2d 612. However, the conduct here is more serious than that in Glass and Hopp, because the accused engaged in criminal conduct and his conduct resulted in greater potential injury (police involvement, risk of physical confrontation).14
In our view, the conduct involved here was more serious than in Glass and Hopp, but less serious than in Strickland.15 We conclude, as did the trial panel, that the appropriate sanction is a suspension of 90 days.
The accused is suspended from the practice of law for a period of 90 days, commencing 60 days from the date of this decision.
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Footnotes
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1. As described in greater detail in the text, around the time of the events at issue in this proceeding, the corporation failed to file required reports with the Secretary of State's office and therefore was "administratively dissolved" under ORS 65.651 for a period of several months. During that time, a third party registered the name "The Hemp and Cannabis Foundation" under Oregon's assumed business name statute and incorporated a different nonprofit corporation using that name. Because the third party had acquired the right to that name, in January 2006 the corporation changed its name to "THCF."
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2. The public member of the trial panel agreed with the panel's findings but included an additional statement of his views in the trial panel's opinion. The public member was more skeptical of the accused's veracity than the other members.
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3. Before the trial panel, the accused offered different versions of events. At one point, he claimed that he did not know that Leveque was going to attempt a takeover; at another, he admitted that he knew and advised against it, but that he could not stop her. In a letter to the Bar during its investigation of the case, the accused wrote, "I then arranged for my client to meet me on November 14 at the clinic to try to catch Mr. Stanford and tell him that we felt constrained to either complain to the Attorney General's Office or take over the clinic with new management."
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4. In this court, the accused makes clear that he is not relying on ORS 161.200, which codifies "choice of evils" as a defense to a criminal prosecution. Under that statute, the defense is available only when illegal conduct is necessary to avoid an imminent injury and "[t]he threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue." The accused could not justify Leveque's conduct using that statute; any harm caused by the Attorney General shutting down the clinic was not "imminent." Indeed, as of the time of the attempted takeover of the clinic, neither the accused nor Leveque had had any contact with the Attorney General at all regarding the corporation.
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5. As noted previously, the accused testified that those witnesses were wrong and that he had stated only that he had a letter that he had written to the Attorney General regarding the alleged irregularities at the corporation. Based on the consistent testimony of two of the clinic's employees and the clinic's outside counsel, we find those witnesses, rather than the accused, to be credible on this point.
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6. The accused makes no argument that, if proved, his conduct did not "reflect[] adversely on [his] fitness to practice law," under RPC 8.4(a)(3).
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7. The accused does not distinguish between his alleged trespass and his participation in Leveque's alleged trespass.
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8. The accused testified before the trial panel that he believed that Leveque was going to the clinic on November 14, 2005, to open the clinic and perform her normal duties as an employee. We do not find that testimony credible, however, considering the accused's conduct on November 14, along with the accused's testimony that he told Leveque, before the attempted takeover, that he could defend her against criminal or civil charges arising out of her entry and that he believed that the doctrine of self-help could apply to the situation.
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9. The accused argues that the Bar was required to prove every element of criminal trespass beyond a reasonable doubt. However, to prove a violation of RPC 8.4(a)(2), the Bar need only prove, by clear and convincing evidence, that the accused engaged in the relevant conduct and that that conduct constituted criminal trespass. See BR 5.2 (clear and convincing evidence standard in disciplinary cases); see also In re Leisure,338 Or. 508, 516, 113 P.3d 412 (2005) (noting, under the predecessor to RPC 8.4(a)(2), that the Bar "must `establish the criminal act by clear and convincing evidence'").
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10. The Bar also contends that the accused violated RPC 8.4(a)(2) by the criminal act of acting as an accomplice to Leveque's criminal trespass. Because we have already concluded that the accused violated RPC 8.4(a)(2), we do not address that issue.
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11. The trial panel opined that the accused's mental state with respect to this violation was "negligent," because he continued to maintain that his advice was justified. However, RPC 3.1 specifically identifies "knowingly" as the mental state required to prove a violation of that rule. For the reasons stated in the text, we believe that the Bar proved by clear and convincing evidence that the accused acted "knowingly" when he gave the advice he did.
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12. The Bar cites several cases "in which a lawyer has pursued a frivolous claim to the extent of committing criminal conduct" that resulted in disbarment or a lengthy sanction. Those cases, however, involved more serious misconduct, more aggravating circumstances, or both. See, e.g., In re Kluge,332 Or. 251, 27 P.3d 102 (2001) (three-year suspension for lawyer who falsely represented that he was a notary, engaged in the practice of law without PLF coverage, falsely represented to PLF that he did not require coverage, and failed to withdraw when required to give testimony prejudicial to client; aggravating factors included pattern of misconduct, bad-faith obstruction of disciplinary proceeding, refusal to acknowledge wrongful behavior, and substantial experience; the only mitigating factor was lack of disciplinary history).
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13. An individual, John Pearce, had filed a construction lien against the accused and initiated an action to foreclose the lien in the name "John Pearce, dba Quicksilver Construction Company." Pearce had not registered the name Quicksilver Construction Company; the accused registered that name to avoid the suit.
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14. In Glass and Hopp, each attorney registered an assumed business name for an inappropriate purpose; we note that, in this case, we do not find that the accused was involved in the third party's registration of the corporation's name. Instead, the conduct in Glass and Hopp is analogous to the accused's conduct because here, as in those cases, the accused attempted to take advantage of the corporation's failure to maintain appropriate administrative records.
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15. In Glass, as noted, the court concluded that the accused's conduct was similar to the conduct in Hopp and ordinarily would result in a 60-day suspension. The court imposed a 91-day suspension in Glass because the accused did not cooperate with the Bar's investigation. Although the conduct here was more serious than that in Glass, a similar sanction is appropriate, because this case does not involve the same aggravating factors as in Glass.
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STATE v. DUARTE/KNULL-DUNAGAN
238 P.3d 411 (2010)
237 Or. App. 13
STATE of Oregon, Plaintiff-Appellant,
v.
Louis B. DUARTE, Defendant-Respondent.
State of Oregon, Plaintiff-Appellant,
v.
Louis B. Duarte, Defendant-Respondent.
070025CR; A138537 (Control); 070026CR; A138538.
Court of Appeals of Oregon.
Argued and Submitted April 29, 2010.
Decided August 25, 2010.
Rolf Moan, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert M. Atkinson, Assistant Attorney General.
Kristin A. Carveth, Deputy Public Defender, argued the cause for respondents. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and EDMONDS, Senior Judge.
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HASELTON, P.J.
The state appeals, under ORS 138.060(1)(c), from orders suppressing evidence of a residential marijuana growing operation discovered as a result of a search pursuant to a warrant. The trial court determined that the affidavit in support of the warrant did not establish probable cause to search because it failed to corroborate the reliability of an anonymous informant. Consistently with the standard of review prescribed and amplified in State v. Castilleja, 345 Or. 255, 264-66, 192 P.3d 1283, adh'd to on recons., 345 Or. 473, 198 P.3d 937 (2008), we conclude that the issuing magistrate could properly have concluded that the affidavit established probable cause to search defendants' home—and, particularly, that the affidavit, construed in a common-sense manner, sufficiently corroborated the reliability of the informant's statements. Accordingly, we reverse and remand.
The facts material to our review are undisputed. On June 22, 2007, Oregon State Police Detective Raiser executed an affidavit in support of an application to search defendants' home in Sherman County for evidence of an indoor marijuana growing operation. Raiser began by reciting his extensive training and experience in drug enforcement efforts, including his knowledge pertaining to marijuana growing operations. As part of that description, Raiser averred that marijuana "can be cultivated in an indoor environment in a hydroponic setting," i.e., that "the plant is grown in a solution of water and nutrients and is not planted in soil," and that, "[when growing marijuana inside, power consumption increases dramatically." Raiser also stated, based on his knowledge and experience, that persons growing marijuana often "maintain a continuous supply of plants * * * [to] provide[ ] an ongoing and uninterrupted source of marijuana for harvest and sale"; that the "odor of fresh growing and/or cut marijuana is distinctive and is easily recognized"; and that persons involved in "marijuana grow operations oftentimes make structural modifications to the areas of buildings where marijuana is being grown."
Raiser then recounted the content of three communications that law enforcement personnel had received from one or more unidentified informants,1 who alleged that there was an illegal marijuana growing operation at defendants' residence. In the first instance, on June 12, 2007, a male caller contacted the Mid-Columbia Narcotics Team telephone tip line and stated that there was an active hydroponic marijuana growing operation at defendants' residence. The caller described the location of the residence and stated that the "skunky odor" of marijuana was very noticeable near the backdoor of the house. The second communication was an anonymous letter that the Sherman County Sheriff's Office received at approximately the same time, which reiterated essentially the same information in the first tip and further stated that the growing operation was in the basement of defendants' residence and involved an estimated 50 to 100 marijuana plants.
The final anonymous communication occurred roughly a week later, on June 20, when a male caller contacted the Oregon State Sheriffs' Association hotline and stated that there was an illegal marijuana growing operation in the basement of a house in "Fulton Canyon"—which corresponded to the location described in the first tip. The caller further stated that he had seen the operation approximately three months before, that the operation could be reached through a trapdoor located in the back of the house, and that the operation involved between 50 to 100 plants.
Raiser also described in detail information he had elicited in his efforts to corroborate
[ 238 P.3d 414 ]
the content of the anonymous communications. Specifically:
(1) Raiser spoke with Sherman County Sheriff Lohery, who "lives very near and across the road to the residence in question" and who shared a well with defendants. Lohery confirmed that defendants had purchased the residence during the preceding year, that the water usage on the shared well had "gone up considerably in the last few months," and that "the electricity for the water bill [had] been unusually high in comparison to months past." Lohery also told Raiser that he had been inside the house, before defendants bought it, and that there was a trapdoor in the back of the residence that led into the basement. Finally, Lohery told Raiser that, after defendants had moved in, they had undertaken renovations, which, defendant Duarte had told Lohery, consisted of "expanding the basement of the house by knocking a wall out."
(2) Raiser also obtained power records for defendants' residence, both during the period of defendants' occupancy and for the immediately prior two years, as well as power records for "three comparable residence(s) and properties" in the same area. Those records, which were attached to Raiser's affidavit, showed that, in the six months preceding the warrant application, the power consumption at the property substantially exceeded that during comparable periods during prior ownership. Further, with respect to the "comparable" properties, Raiser averred:
"The power consumption at this property is, in comparison to similar structures in the surrounding area, extremely high. The power usage is[,] during most months, at or double the power usage for the comparable residences and for the most part remains constantly high throughout the year regardless of weather and/or temperature changes."
Raiser also obtained, and attached, power records for the well that defendants shared with Lohery and, in summarizing the content of those records, stated: "The current power consumption on this well, in comparison to the usage on the well previously[,] showed that during most months it was at, or triple[,] the amount used when the previous owners shared the well with Sheriff Lohery."
(3) Finally, Raiser checked defendant Duarte's criminal history and determined that he had been convicted in 1991 for manufacture and delivery of a controlled substance and had been arrested in 1994 for delivery of a controlled substance. Raiser also confirmed that neither defendant had "medical marijuana permits" and that the property was not "listed as a valid location to grow marijuana."
Based on Raiser's affidavit, a magistrate issued a warrant authorizing the search of defendants' property for various items pertaining to manufacture and distribution of controlled substances. The consequent search, on June 25, 2007, yielded extensive evidence, including over 50 marijuana plants, of a substantial hydroponic marijuana growing operation. Defendants were subsequently indicted on charges of unlawful manufacture of marijuana, ORS 475.856, and unlawful possession of marijuana, ORS 475.864.
Each defendant moved to suppress the items seized during the search, as well as evidence of derivative observations and statements. Defendants' principal contention was that, under the analysis of State v. Kreutzer, 138 Or.App. 306, 909 P.2d 175 (1995), Raiser's affidavit did not establish probable cause in that it did not describe the basis on which the anonymous informant had identified the plants that he had observed as marijuana. Alternatively, defendants asserted that the information obtained by Raiser, including the records of power consumption, evidence of increased water consumption, and evidence of defendants' structural modifications to the basement, as well as confirmation of the existence of a trapdoor leading to the basement, was insufficient to corroborate the reliability of the anonymous informant's statements.
The trial court granted the motions to suppress, explaining its reasoning in an extensive letter opinion. The court began by observing that, "[if the anonymous tips are credited, the affidavit establishes probable cause. If not, it does not." Accordingly, the court evaluated the information obtained from the anonymous informant by reference
[ 238 P.3d 415 ]
to the "Aguilar/Spinelli" test,2 as codified at ORS 133.545(4),3 by which an affidavit that involves confidential or anonymous information must set forth "(1) the basis of the informant's knowledge, and (2) facts showing the informant's `veracity,' i.e., that he is credible or that his information is reliable." State v. Villagran, 294 Or. 404, 409 n. 3, 657 P.2d 1223 (1983). The trial court determined that Raiser's affidavit satisfied the first, "basis of knowledge" prong of that conjunctive test, but concluded that the information in the affidavit did not meet the "veracity" requirement—and, as particularly pertinent, did not demonstrate the reliability of the information conveyed by the anonymous informant.4
With respect to reliability, the trial court noted that the affidavit did not set forth the information that defendants' residence was "the only one that fits the informant's description" or facts "explain[ing] the significance of increased water use"—and observed that "[a] reasonable person might conclude that failure to verify verifiable information means the information was false." The court further noted that the affidavit "fails to explain how the anonymous informant recognized marijuana, or whether `the "skunky odor" of marijuana' described by the informant was the `distinct and easily recognized' odor of marijuana described by the detective affiant."
The court conversely identified three facts, which, in its view, did "tend to support the anonymous tips, either directly or indirectly"—viz., the confirmed existence of a trapdoor in the back of defendants' residence (corresponding to the informant's description), the fact that defendants had engaged in structural modifications of their house, and the level of electrical power consumption for defendants' property (both of the latter being consistent with Raiser's training and experience averments). However, the trial court observed that those facts were "individually and collectively susceptible to innocent explanations"—e.g., "nothing in the affidavit eliminates some other cause for higher power use, perhaps related to the unexplained increased water use." Ultimately, the trial court concluded:
"At best, the facts that support reliability lend weak support to the anonymous tips, given that none of them bear directly on the information that [defendants] were growing marijuana. Considered with the facts that tend to discredit the anonymous tip, * * * they are insufficient to show reliability."
On appeal, the state contends that the trial court, in granting suppression of the fruits of the warranted search, "exceeded the proper and lawful scope of its review of the magistrate's decision to issue the warrant." In particular, in the state's view, the trial court, rather than giving an "appropriate degree of deference" to the issuing magistrate's implicit findings of fact predicated on reasonably derived inferences, erroneously and "liberally substituted its own judgment" for that of the magistrate. The state further, and ultimately, asserts that, when reviewed consistently with the applicable "common-sense, non-technical standard," the affidavit established probable cause for the issuance of the search warrant.
Defendants reiterate the trial court's rationale with respect to the "reliability" inquiry, asserting that the purportedly corroborating information in the affidavit referred to facts that were either innately innocuous or so
[ 238 P.3d 416 ]
ambiguous or inadequately explained as to preclude a reasonable inference substantiating the anonymous informant's inculpatory allegations. Further, defendants, invoking Kreutzer, contend that the affidavit was necessarily insufficient because it did not describe the informant's basis for identifying the plants that he allegedly saw as marijuana plants. Finally, and as an alternative basis for affirmance, defendants contend that suppression was required because the information provided in the anonymous tips, even if credited, was impermissibly stale.
We begin with the standard of review— both the trial court's and ours. In Castilleja, which issued several months after the trial court's order of suppression, the Supreme Court fixed that standard in cogent and unmistakable terms:
"When a court reviews a challenge to the sufficiency of an affidavit supporting a magistrate's issuance of a warrant, the question before the reviewing court remains a legal one. A reviewing court asks whether, based on the facts shown by the affidavit, a neutral and detached magistrate could conclude (1) that there is reason to believe that the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish probable cause to justify the search requested. * * *
"* * * * *
"* * * The sufficiency of the search warrant affidavit presents a legal question for each reviewing court, beginning with the trial court. That is, as in the trial court, the question before the Court of Appeals was whether the issuing magistrate could have concluded that the affidavit (excluding the excised parts) established probable cause to search defendants' home. As to that question, the Court of Appeals was in the same position as was the trial court to evaluate the sufficiency of the facts alleged in the affidavit, the reasonableness of any inferences involved in resolving the legal question presented by the probable cause determination, and, ultimately, the existence of probable cause to support the warrant. No appellate court deference to the trial court's findings or conclusions was appropriate or warranted."
345 Or. at 264-66, 192 P.3d 1283 (emphasis in original).
Thus, when a defendant seeks to suppress evidence from a search authorized by warrant, contending that the information in the predicate warrant did not establish probable cause, the court's function is limited to determining whether, given the uncontroverted facts in the affidavit and reasonably derived inferences, the issuing magistrate reasonably "could have concluded that the affidavit (excluding the excised parts) established probable cause to search * * *." Id. at 265, 192 P.3d 1283. That is so regardless of whether the reviewing court—whether a trial court, this court, or the Supreme Court—might have drawn different inferences yielding a different determination.
Further, in exercising that discrete review function, the court is to view the predicate affidavit in a "commonsense, nontechnical and realistic fashion," with "doubtful cases * * * to be resolved by deferring to an issuing magistrate's determination of probable cause." State v. Wilson, 178 Or.App. 163, 167, 35 P.3d 1111 (2001) (internal quotation marks omitted). That deferential standard comports with "the preference for warranted searches over those conducted without prior judicial authorization." Id.
The state contends, and we agree, that the trial court's analysis cannot be reconciled with that standard. The court's deconstruction of the content of the affidavit, albeit nuanced and cogent, and its consequent assessment of the relative strength of competing inferences that could be drawn from the uncontroverted facts set out in the affidavit partake of the function of an issuing magistrate and not of the rigorously circumscribed role of a reviewing court. In any event, as is necessarily implicit in Castilleja, given that our review, like the trial court's, pertains solely to a "legal question," Castilleja, 345 Or. at 265, 192 P.3d 1283, a trial court's analysis and disposition is ultimately material to our review only to the extent that it assists our own understanding and resolution of that legal question.
[ 238 P.3d 417 ]
We conclude, consistently with Castilleja, that the magistrate did not err in determining that the affidavit established probable cause. Accordingly, the trial court erred in granting the motions to suppress. In so holding, we begin where the trial court ended, with the informant's reliability.
The issuing magistrate could reasonably have concluded that the totality of facts set out in the affidavit, separate from the informant's allegations, sufficiently corroborated the informant's statements that there was a hydroponic marijuana growing operation in the basement of defendants' residence. Those facts include: (1) Raiser's averments, based on training and extensive experience, pertaining to common characteristics of marijuana growing operations, including increased electrical usage, utilization of hydroponic cultivation methods, and structural modifications to accommodate growing operations; (2) the power records that demonstrated that electrical consumption at defendants' property was substantially greater than during the prior owners' occupancy, with a very substantial increase in the months antedating the warrant application and was also substantially greater than that for other "comparable" properties; (3) Lohery's statements that defendants' use of water from the shared well had increased substantially and electrical bills confirming that defendants' use of the well far exceeded that of the prior owners; (4) Lohery's statements that defendants had, in fact, undertaken structural modifications of the basement (where the growing operation was allegedly located); (5) Lohery's statement, based on his eyewitness observations, confirming that, as described by the informant (again based on firsthand observation), there was, in fact, a trapdoor leading from the back of the house to the basement; and (6) defendant Duarte's prior arrest and conviction for offenses involving manufacture and delivery of a controlled substance.
To be sure, differing issuing magistrates could draw differing inferences, of varying strength, from those facts. For example, there could be innocent explanations for the ostensibly unusual, historically unprecedented levels of power and water consumption, which could be unrelated to a hydroponic marijuana growing operation. Similarly, there could certainly be innocent reasons for defendants' alteration of the basement. But the state was not obligated to negate those possibilities, and the magistrate was not obligated to draw noninculpatory inferences—or, more precisely, was not precluded from drawing inculpatory inferences—from the stated facts. In sum, not only did independent eyewitness information in the affidavit verify the informant's firsthand description of the atypical and not publicly visible means of gaining access to defendants' basement, but other information collectively corroborated his allegations of the existence of a hydroponic growing operation in the basement.5
Defendants remonstrate, nevertheless, that, under Kreutzer, the affidavit was innately deficient because it failed to set out any basis for the informant's identification of the plants he observed as marijuana. That contention miscasts Kreutzer, which involved circumstances materially different from those presented here.
In Kreutzer, we affirmed a trial court's determination, in ordering suppression of evidence of an indoor marijuana growing operation, that the affidavit in support of the warrant application did not include facts sufficiently corroborating the reliability of statements from several unidentified informants that the defendants were growing marijuana at their home. In so holding, we emphasized that, (a) although the affidavit included information pertaining to increased electrical usage at the defendants' residence, it "contained no information from which to evaluate a `normal' consumption," 138 Or.App. at 311, 909 P.2d 175; and (b) although one unidentified informant stated that he or she had seen "marijuana" plants, the affidavit did not disclose that that informant "had any experience with marijuana or was familiar with its appearance" or that the informant had "described]
[ 238 P.3d 418 ]
the sort of paraphernalia ordinarily associated with an indoor marijuana grow operation or the number of plants seen." Id. Given the concurrence of those circumstances, and the lack of other, cross-corroborating circumstances, suppression was required. Id. at 311-15, 909 P.2d 175.
Thus, properly understood, Kreutzer does not embody or endorse some per se rule that an unidentified informant's statements that he or she has seen "marijuana" plants must be deemed unreliable unless the affidavit describes the informant's familiarity or experience with marijuana. Rather, the determination of reliability must be based on the totality of the information set out in the warrant application. And here, that information was materially different and more complete than in Kreutzer.
For example, unlike in Kreutzer, where the informant provided no details regarding the purported growing operation, including apparatus or number of plants, here, the informant specifically identified the method of cultivation—hydroponic cultivation (which Raiser specifically identified as a means of growing marijuana indoors)—and estimated the number of plants. Further, defendants' substantial increased water usage (as confirmed both by Lohery's statements and records of power consumption pertaining to the well) could quite reasonably be viewed as corroborating the use of hydroponic technologies. Finally, and unlike in Kreutzer, the records of power consumption here, including both the records for defendants' property historically and those for other similar properties in the same area, did provide a basis "from which to evaluate a `normal' consumption." Kreutzer, 138 Or.App. at 311, 909 P.2d 175.
We turn, finally, to defendants' proffered alternative basis for affirmance—viz., because the informant had seen the alleged growing operation three months earlier, his observations were so "stale" as to preclude a determination of probable cause as of the date the warrant issued. We reject that contention, which was not raised in the trial court, as irreconcilable with certain of Raiser's uncontroverted averments, based on his extensive training and experience relating to indoor marijuana growing operations. Specifically, as noted, Raiser averred that persons engaged in such operations "maintain a continuous supply of plants," so as to ensure "an ongoing and uninterrupted source of marijuana for harvest and sale." Further, and even more pertinently and durably for "staleness" purposes, Raiser stated:
"[Equipment used in the manufacture of marijuana plants is expensive and is normally used for more than one initial grow operation. The equipment is not normally thrown away after being used to grow marijuana based on the grower's capital investment. I also know from my training and experience that[,] even if subjects involved in the manufacture of marijuana moved all or some of the equipment, telltale signs of prior marijuana grow operations still remain. These signs include, but are not limited to, growing equipment, marijuana leaf material, receipts from marijuana growing and harvesting equipment, drug records, and customer lists. These items can be used to prosecute a subject for manufacturing marijuana[.]"
Given those averments, the magistrate could properly determine that it was probable that the items identified in the warrant application were presently still to be found at defendants' residence.
The trial court erred in granting defendants' motions to suppress.
Reversed and remanded.
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Footnotes
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1. The trial court assumed that all three communications" probably came from a single person," and, on appeal, as before the trial court, neither the state nor defendants dispute that assumption.
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2. That test was derived from two decisions, 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), which the United States Supreme Court subsequently discarded in favor of a "totality of the circumstances" test, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
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3. ORS 133.545(4) provides, in part:
"If an affidavit [in support of a search warrant] is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant's reliability and shall disclose, as far as possible, the means by which the information was obtained."
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4. The court observed that the "credibility" feature of the "veracity" prong was inapposite because nothing in the affidavit "address[ed] the anonymous informant's character as a truth teller." On appeal, the state does not dispute that determination, acknowledging that "assessing the informant's reliability is the pertinent question."
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5. Given our conclusion in that regard, which is based on the totality of the information in the affidavit, we need not address, and imply no view, whether individual facts set out in the affidavit, or some permutation of facts less than the totality, would be sufficient to satisfy the reliability requirement.
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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 "[s]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,
"[s]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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HELD v. HANLIN
244 P.3d 895 (2010)
239 Or. App. 486
Robert Dean HELD, Petitioner-Appellant,
v.
John HANLIN, in his official capacity as Sheriff of Douglas County, Respondent-Respondent.
09CV2854CC; A143383.
Court of Appeals of Oregon.
Argued and Submitted October 26, 2010.
Decided December 15, 2010.
Brian L. Michaels argued the cause and filed the briefs for appellant.
Kathleen Johnson filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
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ROSENBLUM, J.
Petitioner appeals a judgment upholding the denial by respondent, the Sheriff of Douglas County, of petitioner's application for renewal of his concealed handgun license (CHL). The application included questions about use of controlled substances. After petitioner filed the application, respondent learned that petitioner was listed in the Oregon Health Authority's medical marijuana database. Respondent asked petitioner to answer several follow-up questions about marijuana use. Petitioner refused to answer the questions, so respondent declined to process the application. Petitioner sought judicial review, arguing, among other things, that respondent was not authorized to include any of the questions about controlled substance use on the CHL application and that respondent unlawfully accessed the medical marijuana database. The trial court ruled in respondent's favor, concluding that, because petitioner refused to answer respondent's follow-up questions, his application was incomplete. We need not determine whether it was permissible to include the questions on the application, because we agree with petitioner that respondent was not authorized to access the medical marijuana database and, for that reason, respondent had no lawful basis for asking the follow-up questions. Thus, we conclude that petitioner's application was complete and that respondent was required to process it. Accordingly, we reverse and remand.
Before we recite the facts, an overview of the pertinent statutes is helpful. The requirements for issuance of a CHL are set out primarily in ORS 166.291(1), which provides, "The sheriff of a county, upon a person's application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person" meets specified age and residency requirements, can demonstrate competence with a handgun, and meets other requirements concerning, among other things, prior criminal convictions. ORS 166.291(3)(a) specifies other information that a CHL application must state, including identifying information and the applicant's address or addresses for the previous three years. ORS 166.291(3)(b) provides, in part, that the sheriff shall fingerprint and photograph the applicant and "shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section." ORS 166.291(4) sets out a model application.
ORS 166.293(2) provides certain discretionary grounds on which a sheriff may deny a CHL application:
"Notwithstanding ORS 166.291(1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant's mental or psychological state or as demonstrated by the applicant's past pattern of behavior involving unlawful violence or threats of unlawful violence."
Also pertinent to this appeal is ORS 475.331, which provides for the creation of a medical marijuana database and places limits on access to, and the use of, the information therein:
"(1)(a) The Oregon Health Authority shall create and maintain a list of the persons to whom the authority has issued registry identification cards, the names of any designated primary caregivers and the addresses of authorized marijuana grow sites. Except as provided in subsection (2) of this section, the list shall be confidential and not subject to public disclosure.
(b) The authority shall develop a system by which authorized employees of state and local law enforcement agencies may verify at all times that a person is a lawful possessor of a registry identification card or the designated primary caregiver of a lawful possessor of a registry identification
[ 244 P.3d 897 ]
card or that a location is an authorized marijuana grow site.
"(2) Names and other identifying information from the list established pursuant to subsection (1) of this section may be released to:
"(a) Authorized employees of the authority as necessary to perform official duties of the authority; and
"(b) Authorized employees of state or local law enforcement agencies, only as necessary to verify that a person is a lawful possessor of a registry identification card or the designated primary caregiver of a lawful possessor of a registry identification card or that a location is an authorized marijuana grow site. * * *
"(3) Authorized employees of state or local law enforcement agencies that obtain identifying information from the list as authorized under this section may not release or use the information for any purpose other than verification that a person is a lawful possessor of a registry identification card or the designated primary caregiver of a lawful possessor of a registry identification card or that a location is an authorized marijuana grow site."
With those statutes in mind, we turn to the facts, which, for our purposes, are undisputed. Petitioner filed an application with respondent for renewal of his CHL. The application form requires the applicant to answer a number of questions. Question 5 asks, "Do you currently use controlled substances such as marijuana, cocaine, methamphetamine, LSD, or ecstasy?" If the applicant answers "yes," he or she is required to answer questions 5a through 5e, which inquire further into the applicant's controlled substance use.1 If the applicant answers question 5 "no," he or she may "skip to question 6." Petitioner answered question 5 "no" and did not answer questions 5a through 5e.
After receiving the application, respondent accessed the Oregon Health Authority's medical marijuana database. The database permits law enforcement officials to inquire whether a person is listed, but the inquiry response does not specify whether the person is a medical marijuana cardholder or a designated primary caregiver. Respondent learned that petitioner was listed in the database.
Sergeant Marshall, the supervisor of the sheriff's office's Concealed Handgun Unit, wrote to petitioner, stating that "a background check indicated that you have a Medical Marijuana Card. It is presumed that you do use marijuana on some level." The letter then asked petitioner to state in writing whether he is an "infrequent user, occasional user, frequent user, regular user or daily user" and for how long he had been using marijuana.
Petitioner's attorney wrote to Marshall, stating that it was his understanding that his letter did not constitute a denial of the CHL application and asking for an explanation of (1) why respondent was withholding the application, (2) the basis for the questions in the January 29 letter, and (3) the authority under which respondent checked petitioner's medical marijuana status. Marshall replied that the January 29 letter was indeed "not a denial but rather a request for clarification." He stated that, "during the investigation, the query of the Medical Marijuana database indicated that [petitioner] has been issued a Medical Marijuana Card. Granted, the issuance of such a card in itself does not mean that a person uses marijuana[,] but it does create probable cause to do a further investigative inquiry since the applicant indicated that he does not use any drugs, including marijuana."
Petitioner refused to answer any questions about marijuana use, so respondent did not process the CHL application. Petitioner sought judicial review. At the hearing, the parties' respective counsel stipulated that respondent had denied petitioner's application, though respondent testified that he had simply stopped processing it. At the conclusion of the hearing, the trial court ruled that respondent was permitted both to include the questions about use of controlled substances
[ 244 P.3d 898 ]
on the application and to inquire as to whether petitioner held a medical marijuana card. It concluded that, because petitioner refused to respond to the follow-up questions about marijuana use, his CHL application was incomplete and that respondent properly denied the application on that ground.
On appeal, petitioner makes four assignments of error. In the first, he contends that ORS 166.291 provides that a CHL application may ask only questions specified in the statute and others necessary to facilitate the investigation required before a CHL may be issued. Petitioner argues that questions about an applicant's use of medical marijuana are not authorized by ORS 166.291. In his second assignment of error, petitioner argues that respondent was prohibited from accessing the medical marijuana database to determine whether petitioner was a medical marijuana cardholder. In his third assignment, petitioner contends that allowing respondent to inquire into an applicant's medical marijuana status places "unbridled discretion in the hands of a government official" because there are no standards guiding use of the information in conducting an investigation or in determining whether to grant or deny a CHL application. Finally, in his fourth assignment of error, petitioner argues that ORS 166.291 directs that respondent "shall issue" a CHL if the requirements of that statute are satisfied, and he asserts that his application did.
We do not address petitioner's first or third assignments of error; the need to resolve the issues raised therein is obviated by our conclusions with respect to the second and fourth assignments or error. As noted, in his second assignment of error, petitioner contends that respondent was prohibited from accessing the medical marijuana database. Respondent argues that he was authorized to access the database as part of his investigation, pursuant to ORS 166.293(2), concerning whether petitioner's behavior could be affected by use of controlled substances. He also contends that ORS 475.331 does not prohibit use of the database for investigating a CHL application; in his view, that statute only prohibits law enforcement from using information in the database "as a basis for heightened law enforcement scrutiny."
We agree with petitioner. ORS 475.331(2)(b) authorizes the release of information from the database to law enforcement officials "only as necessary to verify that a person is a lawful possessor of a registry identification card" or the designated primary caregiver of a cardholder or that a location is an authorized marijuana growing site; ORS 475.331(3) expressly prohibits law enforcement officials from using database information for any other purpose. The statute does not authorize the use of database information for purposes of helping to determine whether an individual uses, or may use, marijuana.
In this case, respondent did not access the database merely to determine whether petitioner was a lawful medical marijuana cardholder or a designated primary caregiver. Respondent testified that his office checks the database for every CHL applicant "[t]o determine whether or not they use [a] controlled substance, specifically marijuana." Respondent's use of the database for that purpose was not authorized by ORS 475.331.
Respondent's argument that he was authorized to access the database as part of his investigation is not well taken. Although such authority could be inferred from ORS 166.293(2), ORS 475.331 expressly limits use of the database, and, as the more specific and later enacted statute, it controls. See Bobo v. Kulongoski, 338 Or. 111, 116, 107 P.3d 18 (2005) (when two statutes conflict, the later, more specific statute controls).
In his fourth assignment of error, petitioner argues that ORS 166.291 directs that respondent "shall issue" a CHL, because his application satisfied the requirements of that statute. Respondent contends that he "did not deny Petitioner's application based upon information obtained as a result of Respondent's inquiry into Petitioner's medical marijuana status. Respondent declined to continue processing the application because Petitioner refused to respond to a request for information made by Respondent."
Although respondent's latter statement is technically correct, respondent fails to acknowledge
[ 244 P.3d 899 ]
the causal connection between the information wrongfully obtained from the medical marijuana database and his decision not to process petitioner's application. The "request for information" to which petitioner refused to respond was based on the information obtained from the database. Because petitioner had answered "no" to the question about use of controlled substances, without the information obtained unlawfully from the medical marijuana database, there would have been no basis upon which to ask the additional questions.
Nevertheless, to the extent that petitioner seeks an order requiring respondent to issue a CHL, petitioner's request is premature. ORS 166.291(1) requires a sheriff to issue a CHL "after compliance with the procedures set out in this section * * *." Those procedures include, among other things, conducting the investigation required by ORS 166.291(3)(b). Respondent has not performed those procedures, so there is no statutory basis upon which to issue a CHL. Rather, the appropriate remedy is to remand for the circuit court to order respondent to continue processing the application.
To summarize, even assuming that respondent had authority to include on the CHL application the questions about use of controlled substances, he was not authorized to access the medical marijuana database for purposes of determining whether petitioner uses marijuana. Accordingly, there was no lawful basis for requiring petitioner to answer the additional questions. It follows that petitioner's application was complete and that respondent was required to process it. The trial court erred in concluding otherwise.
Reversed and remanded with instructions to order respondent to process petitioner's concealed handgun license application.
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Footnotes
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1. The subsidiary questions ask what controlled substances the applicant uses, how frequently the usage is, how long the applicant has used controlled substances, whether the use is authorized by a medical doctor, and whether the applicant has a prescription authorizing the use.
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STATE v. OLINGER
246 P.3d 20 (2010)
240 Or. App. 215
STATE of Oregon, Plaintiff-Respondent,
v.
Jonathan R. OLINGER, Defendant-Appellant.
C070774CR; A139190.
Court of Appeals of Oregon.
Submitted June 29, 2010.
Decided December 29, 2010.
Peter Gartlan, Chief Defender, Appellate Division, and Joshua B. Crowther, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.
Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.
--------------------------------------------------------------------------------
ROSENBLUM, J.
Defendant appeals his convictions of unlawful manufacture of marijuana, ORS 475.856; unlawful delivery of marijuana, ORS 475.860(2); and unlawful possession of marijuana, ORS 475.864. He assigns error to the denial of his pretrial motion to suppress evidence. Defendant contends that a sheriff's deputy illegally trespassed on the curtilage of his home to make observations that were later used by the deputy and his partner to obtain defendant's consent to a search of his house, which yielded the evidence of the crimes. We review the trial court's denial of a motion to suppress evidence for errors of law. State v. Hinds, 225 Or.App. 470, 474, 202 P.3d 187, rev. den., 347 Or. 43, 217 P.3d 689 (2009). Because factual issues remain to be resolved before the issues that the parties raise on appeal can be addressed, we vacate the trial court's judgment and remand for further proceedings.
Unless otherwise noted, the following facts are uncontroverted. Around 9:50 in the evening on May 30, 2006, Deputies Haxton and Brown arrived at defendant's residence to serve an arrest warrant on a woman who was last known to live there. When Haxton and Brown arrived, the lights in the house were off. Haxton proceeded to the front door, shined a flashlight through a window by the front door and noticed "a hood of a car in the living room." He then knocked on the door and, when no one answered, he presumed that no one was home. Meanwhile, Brown walked around the side of the house to an offshoot of the driveway, where a car was parked. The car had no license plates, the bumper was off, and it was "filled with boxes and stuff." Brown observed the car's vehicle identification number (VIN), reported the VIN to dispatch, and received information that the car was stolen.1
While the deputies were still at the residence, defendant, a man, arrived at the house. Haxton explained to defendant that the deputies were there to serve an arrest warrant on a woman thought to live at the house. After questioning, defendant said that he had been living at the house for about three weeks and that the car was his.
Haxton then asked defendant if the deputies could look at the car, but he did not explain to defendant that they had already checked the car's VIN and knew that the car was stolen. Defendant consented, and both deputies looked at the car and the VIN; they did not see anything new. Haxton asked for permission to look in the house, and defendant said no.
[ 246 P.3d 22 ]
At that time, Haxton also asked if he could search defendant's person, and defendant consented. That search uncovered more than $1,100 cash in defendant's wallet, mostly in $20 bills. Defendant said that he did not know where the money had come from. Haxton told defendant "it was a lot of money for not knowing where it came from," that he knew the car was stolen, and that between the two, it "didn't look good." Brown then read defendant his Miranda rights.
At that point, Haxton explained that he wanted to search the house for "stolen car parts" and also asked whether or not defendant was growing marijuana. Defendant looked nervous and did not respond. Haxton asked if defendant had a medical marijuana card, and defendant replied that he was in the process of doing the paperwork. Haxton then "asked him if he was using hydroponics or dirt, just another stab at the—at the grow part, and he said he was using both." When asked how many plants he had, defendant eventually replied that he had more than 12.
Haxton again asked if the deputies could search the house and defendant again refused consent. At that point, Haxton told defendant:
"he's got a stolen car in his driveway that had been parted out, basically. He had $1,100 basically in cash in $20's on him. He had car parts inside of his house that we could see and that he had already admitted that he had a grow inside his house.
"So, with those things I told him * * * that we were basically going to apply for a warrant and if the judge signs off on it then we're searching his house, anyways."
Defendant was then told that he could either consent or the deputies would apply for a search warrant. Defendant asked if he was going to jail, and no promises were made. At that point, defendant agreed to sign a "Consent to Search Disclaimer"2 that was offered to him by Haxton, and he let the deputies in the front door of the house. The deputies searched the house and found approximately 50 marijuana plants, marijuana-growing equipment, a suitcase full of marijuana, more individually packaged bags of marijuana, marijuana seeds, drug records, and a locking-style suitcase safe with $2,470 in it. Defendant was subsequently charged with unlawful manufacture, delivery, and possession of marijuana.
Prior to trial, defendant moved to suppress all evidence obtained as a result of the search of the car, the search of the house, and his statements, arguing that evidence was derived from the initial warrantless search of the car. Defendant specifically argued that Brown trespassed on the curtilage of defendant's property, where he observed the car's VIN, and that Brown thus conducted a search in violation of Article I, section 9, of the Oregon Constitution.3 Defendant further argued that the deputies exploited that unlawful search to elicit his subsequent statements, his consent to search the car again, and his consent to the search of the house.
At the suppression hearing, Haxton testified that the property had a U-shaped driveway with a path leading from the driveway to the front door, that the car was parked in "like a driveway that's been added on" that was "around the side of the house," and that there was no paving or sidewalks anywhere around the house. Defendant also testified about the layout of the property. He testified that where the car was parked was not a "driveway that's been added on," as Haxton
[ 246 P.3d 23 ]
had characterized it, but was a dirt area where a wood shed had previously been constructed. Defendant testified that the house had a back door but no side door, and that the residence was set apart from all other buildings in the area.
Following that testimony, the trial court made findings of fact and denied the motion, concluding that defendant's consent to search the house was "freely, voluntarily and intelligently given without threat or coercion," and that the deputies "had plenty of probable cause at the point that they asked for and told the defendant that they would get a search warrant." The court did not rule on defendant's argument that, to conduct the initial search of the car, Brown had to illegally trespass on defendant's curtilage; furthermore, the court's only finding of fact relating to the question of whether the car was located in an area where Brown may have been trespassing was that the car was "parked in an off portion, or an offshoot of the driveway." Defendant was subsequently convicted on all charges.
On appeal, defendant does not challenge the trial court's conclusion that his consent was voluntary. However, he renews his arguments (1) that Brown conducted an unlawful search by trespassing onto defendant's curtilage to observe the VIN of his car, and (2) that the deputies unlawfully exploited the information obtained as a result of that search—that the car was stolen—to gain defendant's consent to again search the car and then the house.4 Therefore, defendant argues, the trial court erred by denying his motion to suppress. The state responds that Brown lawfully entered the curtilage of defendant's residence, and that, even if Brown's search of the parked car was unlawful, the deputies did not exploit that illegality to gain defendant's consent.
The initial issue in this case is whether Brown, after it was determined that no one was home, had the authority to look in the car that was parked on the side of the house and thus gain information that the car was stolen; specifically, did Brown have implied consent to enter the area on the side of the house? If he did, the VIN was in plain view and his observation of it was not a search. State v. Foster, 347 Or. 1, 5, 217 P.3d 168 (2009) (an observation from a lawful vantage point is not a search under Article I, section 9); State v. Ohling, 70 Or.App. 249, 252, 688 P.2d 1384, rev. den., 298 Or. 334, 691 P.2d 483 (1984). However, if Brown's entry onto that area of the curtilage was not pursuant to defendant's implied consent, his intrusion was a trespass, and thus a search in violation of Article I, section 9. City of Eugene v. Silva, 198 Or.App. 101, 107, 108 P.3d 23 (2005); State v. Somfleth, 168 Or.App. 414, 424, 8 P.3d 221 (2000).
To determine whether a deputy has implied consent to invade the curtilage of a residence, we treat "location as, in effect, giving rise to rebuttable `presumptions.'" Somfleth, 168 Or.App. at 424, 8 P.3d 221. Given prevailing social norms, members of the public, including police, are presumed to have implied consent to approach a home to perform "those acts reasonably undertaken to contact the residents of the home[.]" State v. Cardell, 180 Or.App. 104, 108, 41 P.3d 1111 (2002). Therefore, going to the front door and knocking is not a trespass. Ohling, 70 Or.App. at 253, 688 P.2d 1384. Likewise, police enjoy a limited presumption of implied consent to enter an area of a residence's curtilage that they must traverse in order to approach the front door, typically a driveway, a front yard, or other pathway ordinarily used by visitors to contact the resident. E.g., City of Eugene, 198 Or.App. at 107, 108 P.3d 23 (quoting Somfleth, 168 Or.App. at 424-25, 8 P.3d 221) (a homeowner is "presumed to have implicitly consented to entry into the front yard to approach the front door"); Foster, 347 Or. at 5-6, 217 P.3d 168.
Entry onto the property for purposes other than to contact persons at the front door, however, is a different matter. Such intrusions onto a home's curtilage are presumptively trespasses, unless the circumstances so strongly evince an invitation to the public that it can be said that the homeowner
[ 246 P.3d 24 ]
has implicitly invited entry. State v. Pierce, 226 Or.App. 336, 343-45, 203 P.3d 343 (2009); Somfleth, 168 Or.App. at 425, 8 P.3d 221; State v. Glines, 134 Or.App. 21, 25, 894 P.2d 516, rev. den., 321 Or. 512, 900 P.2d 509 (1995).
In this case, the state argues that it is no less common or acceptable for the public (and thus the police) to be in an offshoot of a driveway with a parked car in it than it is for the public to be in the driveway itself, at least absent any evidence of the resident's intent to exclude the public from that area. Thus, in the state's view, we must presume that defendant implicitly consented to public entry into that area unless there is evidence that defendant intended to exclude the public, which, the state contends, there is not.
We disagree that is the appropriate analysis. The presumption of implied consent to enter does not necessarily extend to all portions of a driveway. See Pierce, 226 Or.App. at 345-46, 203 P.3d 343 (police did not have implied consent to walk up a driveway that extended along the side of the defendant's house and look in the backyard). The mere fact that the "offshoot" on which the car was parked may have been connected to, or part of, the driveway, is not dispositive. Rather, it is the location of the offshoot that matters. The uncontroverted evidence in the record here shows that the portion of the offshoot where the car was parked was on the side of the house—beyond the area in which implied consent is presumed.
Thus, Brown's entry into the area on the side of the house is presumptively a trespass unless there is evidence in the record of circumstances that evince implied invitation to the public to enter that area. The state points to no such evidence, and our review of the record reveals none.5 There is no evidence of, for example, a side entrance—let alone a side entrance with a doorbell or other indications that the public is invited to use that entrance, cf. Glines, 134 Or.App. at 23-25, 894 P.2d 516—or any other feature of the structure or the surrounding landscape or the layout of the property that suggests an invitation to the public to enter. It follows that Brown's entry into that area to examine the car constituted an unlawful search.6
As noted, the state argues that, even if the police obtained the information that the car was stolen from an illegal search, defendant's consent did not derive from that search for two reasons. A ruling in the state's favor on that issue would obviate the need for a remand, so we consider the state's arguments here. First, the state contends that defendant failed to establish a minimal factual nexus between the search of the car and his consent to the search of the house. Second, it argues that, even if there was a factual nexus, any taint from the search of the car was attenuated by the "collection of warnings" that the deputies gave defendant before he consented—specifically, the Miranda warnings and the statement on the "consent to search" form that informed defendant that he had the right to refuse the search. The trial court did not rule on either of those questions, nor did it make any express findings relating to those issues. For that reason and the reasons that follow, neither of the state's arguments can be resolved on the factual record before us.
As to the state's first argument, when seeking to suppress evidence on the ground that it derived from illegal police activity, a defendant must establish a "minimal factual nexus—that is, at minimum, the existence of a `but for' relationship—between the evidence
[ 246 P.3d 25 ]
sought to be suppressed and prior unlawful police conduct * * *." State v. Hall, 339 Or. 7, 25, 115 P.3d 908 (2005). The state contends that defendant cannot establish with any certainty that, "but for" the deputies' knowledge that the car was stolen, they would not have asked for his consent to search the home. The state may be correct as far as its argument goes (an issue we do not decide), but it does not address the complete analysis: A defendant can establish a factual connection not only by showing that the police were prompted by illegally obtained information to seek consent, but also by showing that his or her decision to consent was "significantly affected" by the unlawful police conduct. Id. at 35, 115 P.3d 908. Here, in persuading defendant to consent to a search of the house, the deputies repeatedly relied on the information that the car was stolen. That fact could support a finding that defendant's decision to consent was significantly affected by the search of the car.
To be sure, the deputies also relied on other information—the car hood in the living room, the cash on defendant's person, and defendant's admission that he was growing marijuana, none of which defendant challenges on appeal as having been illegally obtained—which could support a finding that the information about the stolen car was not a significant factor in defendant's decision. But, the trial court did not rule or make findings on that issue.7 Whether defendant established a "but for" relationship between the search of the car and his decision to consent to the search of his house is a matter for the trial court to determine in the first instance.
The same problem prevents us from addressing the state's second argument. If the defendant establishes a factual nexus between evidence obtained in a consent search and unlawful police activity, the state can nevertheless prove that the disputed evidence is admissible by showing, among other things, that the police illegality has "such a tenuous factual link to the disputed evidence that unlawful police conduct cannot be viewed properly as the source of that evidence * * *." Id. at 25, 115 P.3d 908. To determine whether the advice of rights that defendant received was sufficient to purge any taint, we must conduct a "fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct" and defendant's consent to the search of the house. Id. at 35, 115 P.3d 908. To do so, we must consider the nature and extent of the taint—that is, how significantly, if at all, the fact that the deputies knew that the car was stolen affected defendant's decision to consent to the search.
Again, that is a question of fact that the trial court did not resolve. Although the court ruled that defendant's consent was voluntary—meaning that his will was not overborne—that does not necessarily imply that the deputies' knowledge that the car was stolen did not significantly affect his decision to consent. See id. at 27, 115 P.3d 908 ("[E]ven when a defendant's consent is voluntary—that is, when the defendant's free will has not been overcome by police coercion—that consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendant's rights under Article I, section 9.").
Because the trial court did not rule on the issues that the parties raise on appeal, and because unresolved factual questions prevent us from addressing the issues concerning whether defendant's consent to the search of the house derived from the unlawful search of the car, we vacate the judgment and remand for the trial court to resolve those issues in the first instance. If the court rules in the state's favor, it shall reenter the judgment of conviction. However, if it rules in defendant's favor, defendant is entitled to
[ 246 P.3d 26 ]
suppression of the evidence that derived from the search and to a new trial.
Vacated and remanded.
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Footnotes
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1. The trial court found that both deputies went to the front door and then later "noticed a vehicle without license plates parked in an offshoot of the driveway. Deputies looked inside and concluded that the vehicle was stolen." The finding that both deputies went to the car and looked in it is not substantiated by the record. Both deputies testified that, initially, only Brown went to the car.
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2. According to Haxton, the consent form stated:
"`I understand the police do not have a search warrant. I understand that I have the right to refuse the search and that should I give my consent to search I have the right to stop the search at any—any time until the warrant is obtained by the police officer. I am at this time voluntarily giving my consent to law enforcement officer'—slash `(s)' for multiple—`to search my'—fill in the applicable boxes, and then we put the residence, his address. And down at the bottom it's got a place for him to sign."
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3. Article I, section 9, of the Oregon Constitution provides, in relevant part, that "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." In support of his motion to suppress, defendant also cited, but did not make any arguments relying on, the Fourth Amendment to the United States Constitution. Defendant did not raise any Fourth Amendment arguments on appeal.
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4. On appeal, defendant does not renew his argument that his statements regarding a marijuana-growing operation also should have been suppressed.
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5. The trial court made no findings of fact concerning the location of the car or the surrounding circumstances beyond finding that the car was "parked in an off portion, or an offshoot of the driveway." However, it is incontrovertible that the car was parked on the side of the house—both the state and defendant presented evidence to that effect. Furthermore, given the absence from the record of any evidence of circumstances that evince implied consent to enter that area of the property, we can say, as a matter of law, that consent was not implicit.
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6. The state no longer makes the argument it made in the trial court that defendant's later consent to the search of the car (after the deputies had already obtained the VIN number and determined that the car was stolen) vitiates any possible earlier illegality. Thus, we do not address it. For purposes of our analysis, we do not distinguish the first search of the car from the second; both searches were illegal.
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7. Because it did not rule on the issue, we cannot presume that it made implicit findings. See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) ("If findings are not made on all [historical] facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion * * * made by the trial court or jury.").
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STATE v. McBRIDE
STATE OF OREGON, Plaintiff-Respondent,
v.
GREGORY THOMAS McBRIDE, Defendant-Appellant.
07C50799, A139020.
Court of Appeals of Oregon.
Argued and submitted on April 29, 2010.
Filed: May 11, 2011.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before Haselton, Presiding Judge, and Armstrong, Judge, and Edmonds, Senior Judge.
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ARMSTRONG, J.
Affirmed.
ARMSTRONG, J.
Defendant appeals a judgment of conviction for two counts of delivery of a controlled substance to a minor, ORS 475.906; one count of manufacturing marijuana, ORS 475.856; and two counts of endangering the welfare of a minor, ORS 163.575. He assigns error only to the trial court's denial of his motion for a judgment of acquittal on the two endangerment counts. He contends that there was insufficient evidence on which to find that he had violated ORS 163.575(1)(b) by permitting two minors to enter and remain in a residence where unlawful activity involving marijuana was conducted, because there was no evidence from which to find that he had authority to exclude the minors from the residence. The state counters that defendant had sufficient control over the minors and the residence to make him liable under ORS 163.575(1)(b) for permitting the minors to be in the residence. We affirm.
Freeman, a medical-marijuana cardholder, started growing marijuana in his home in 2006. He later decided to move the operation outdoors into a greenhouse, and he asked defendant to build one for him. Freeman, defendant, and defendant's girlfriend, Jensen, agreed to share the marijuana grown in the greenhouse—half to Freeman and the other half to defendant and Jensen. Neither defendant nor Jensen had medical-marijuana cards. Defendant built the greenhouse, and the three of them planted marijuana in the greenhouse in June 2007. In September 2007, they harvested the marijuana and brought the cuttings inside Freeman's house to dry.
Throughout the time of the foregoing events, Freeman's 15-year-old daughter, M, lived in the house with him, and, around July 2007, Freeman allowed M's 16-year-old friend, A, to move into the house. In early October 2007, Freeman asked defendant and Jensen to move into the house in order to "keep an eye on the house and help [him] with the kids and the marijuana," which they did. Freeman explained that he had asked defendant and Jensen to keep an eye on the house because he wanted additional adults in the home to help to prevent people from stealing the marijuana. Defense counsel questioned Freeman further about "the purpose of [having defendant] at the house with regards to [Freeman's] daughter," which produced the following colloquy:
"[Freeman]: [Defendant] was helping me with my daughter—keep[ing] an eye on her. I was, again, at work most of the day and I was concerned for her activities that she may have been involved in while I was gone.
"* * * * *
"[Defense Counsel]: * * * And what was the purpose of [defendant] being in the house with regards to those children?
"[Freeman]: To help, again, make sure that there wasn't anybody coming to the house that we didn't want there or didn't trust there.
"* * * * *
"[Defense Counsel]: Were there other people coming by the house—your ex-wife or her friends—that you were asking [defendant] to protect your children from?
"[Freeman]: Yes. There were a couple of—I don't know who they were specifically. They were driving by the house a couple of times. My daughter noticed them and she told me they were some people that she had met, through her mom, in Eugene.
"[Defense Counsel]: Now, hadn't [defendant] actually found what he was fearful was methamphetamine in some of the girl's stuff, and hadn't he presented that to you to destroy?
"[Freeman]: Yes.
"[Defense Counsel]: So he was trying to protect your daughter?
"[Freeman]: Yes. I believe that."
Jensen also testified about the circumstances under which she and defendant had come to live at Freeman's house. She explained that Freeman's "daughter had had some issues that took place and she was very troubled, so we went over there so she would not be alone when [Freeman] was at work." In response to questions by defense counsel, Jensen described the arrangement with Freeman to watch over M and A:
"[Jensen]: I just mainly was there to keep them company and to do the housework and cooking with them.
"[Defense Counsel]: Were there certain persons that you were instructed not to allow in the house?
"[Jensen]: Yes.
"[Defense Counsel]: And who were those people?
"[Jensen]: A young lady * * * and her brother, Bubba.
"[Defense Counsel]: And did you have trouble keeping them away from the house?
"[Jensen]: Yeah. If I was not there—I came home and occasionally they would be there, so it had to be with permission from both fathers that—the agreement if they were there, both of them knew about it."
In addition, Jensen testified that Freeman had given her and defendant permission to give M and A marijuana if they asked, that she and defendant had given the girls marijuana on a few occasions, and that she and defendant had smoked marijuana while M and A were present.
In late October 2007, police executed a search warrant at Freeman's home and arrested defendant and Jensen; M and A were in the house at the time. As noted earlier, defendant was subsequently tried and convicted of several crimes, including two counts of endangering the welfare of a minor. The trial court denied defendant's acquittal motion on the two endangerment counts, which defendant contends constitutes reversible error.
The statute on which the endangering counts were based is ORS 163.575(1)(b). It provides that "[a person commits the crime of endangering the welfare of a minor if the person knowingly * * * [permits a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted[.]" (Emphasis added.) Defendant notes that we have previously construed the word "permit" in ORS 167.222, which establishes the crime of frequenting a place where controlled substances are used, and concluded that, "[before one can be said to `permit' something, one must have authority to forbid it." State v. Pyritz, 90 Or.App. 601, 605, 752 P.2d 1310 (1988). Applying that understanding of the word "permit" to the endangering statute, ORS 163.575(1)(b), defendant asserts that his acquittal motion on the endangering counts should have been granted because the record does not demonstrate" that defendant had any authority to exclude the girls from the home" and, thus, that he lacked the authority to "permit" them to "enter or remain" at the home. (Emphasis in original.) Defendant further argues that it would be unreasonable to infer that defendant had "the authority to evict or exclude residents from their home—especially when the residents at issue include the homeowner's child."
The state disagrees and argues that "the record establishes that defendant had authority both over the girls and over the property and, accordingly, he could `permit' them to remain in the house where the drug activity occurred." The state points to evidence demonstrating that defendant had control over the house, including the ability to exclude people whom Freeman or defendant did not trust, and that Freeman "entrusted defendant with the care of the girls while he was gone[.]" Thus, under the state's view of ORS 163.575(1)(b), once defendant accepted broad control over the children and the premises, he was liable under ORS 163.575(1)(b) regardless of whether Freeman permitted the children to remain where unlawful activity involving controlled substances was taking place.
As framed by the parties, the issue here is whether, based on the evidence presented, a rational trier of fact could have found that defendant permitted M and A to enter or remain in Freeman's home while unlawful activity involving marijuana was occurring in the home. As the parties' arguments suggest, resolution of that question depends on how the word "permits" is understood to operate in ORS 163.575(1)(b).
We begin by noting that the word "permit," which is not defined for purposes of ORS 163.575, has a range of meanings." Permit" can be used to denote a narrow concept, such as a formal expression of consent or authorization, but it also can have a broader meaning, such as to allow, tolerate, or make possible.1 As we will explain, the legislative history of ORS 163.575(1)(b) provides useful insight into the intended meaning of" permit" in the statute.
The legislature enacted ORS 163.575(1)(b) as part of the 1971 revision of the Oregon Criminal Code. See Or Laws 1971, ch 743, § 177. The Criminal Law Revision Commission that proposed the 1971 Oregon Criminal Code crafted ORS 163.575 as a replacement for former ORS 167.210—a statute on contributing to the delinquency of a minor—which the Supreme Court had held in State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), to be unconstitutionally vague. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 177, at 178 (July 1970) (explaining history of ORS 163.575, viz., that the statute was "designed to provide coverage for specific acts injurious to the welfare of minors not specifically prohibited elsewhere in the proposed Code"). The minutes to one of the commission's subcommittee meetings reflects that Roger Wallingford, Research Counsel for the Criminal Law Revision Commission, explained that the endangerment statute "attempts to cover everything the statute on contributing to the delinquency of a minor encompassed which has not been provided for elsewhere in the proposed code. It is a `contributing' statute set out in specific language." Minutes, Criminal Law Revision Commission, Subcommittee No. 2, Mar 6, 1970, at 10.2
From that history, it is evident that the legislature adopted ORS 163.575(1)(b) to shield children from unlawful drug activities and the actions of adults who expose children to or involve them in those activities. In accordance with that purpose, we conclude that the legislature intended the word "permit" in ORS 163.575(1)(b) to have a broad rather than narrow meaning and, therefore, to apply to people who have authority over a minor or a place and who, because of their exercise of that authority, make it possible for a minor to be exposed to unlawful drug activity. In other words, and contrary to defendant's position, the statute extends to a person, such as defendant, who has been given authority over a minor or premises and who accepts that authority knowing that it involves allowing a minor to be in a place where unlawful drug activity is occurring. Cf. State v. Mack, 219 Or.App. 119, 128-29, 183 P.3d 191, rev den, 345 Or. 301 (2008) (defendant entitled to acquittal on first-degree child neglect charge, ORS 163.547(1)(a) (2001), because evidence did not establish that homeowner's boyfriend, who had a room in the home, had control over the homeowner's child or authority to exclude the child from the home). Accordingly, the trial court did not err in denying defendant's motion for a judgment of acquittal on the endangerment counts.
Affirmed.
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Footnotes
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1. See, e.g., Webster's Third New Int'l Dictionary 1683 (unabridged ed 2002) (defining "permit" to mean "1: to consent to expressly or formally: grant leave for or the privilege of: ALLOW, TOLERATE < ~ smoking > < ~ an appeal > < ~ access to records > 2: to give (a person) leave: AUTHORIZE < obliged to ~ others to use his patent—Tris Coffin > * * * < ~ me to offer my congratulations > * * * 4: to make possible" (boldface in original)); State v. Porter, 241 Or.App. 26, 30, 32, 249 P.3d 139 (2011) ("[In some contexts, `permitting' carries a rather broad meaning, and in others, a narrower meaning.").
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2. Before its repeal, former ORS 167.210 provided that, "[when a child is a delinquent child as defined by any statute of this state," a person would commit the crime of causing or contributing to the delinquency of a child if the person was "responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, or [if the] person * * * by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child[.]"
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WILLIS v. WINTERS
CYNTHIA TOWNSLEY WILLIS, Petitioner-Respondent, Respondent on Review,
v.
MICHAEL WINTERS, in his official capacity as Sheriff of Jackson County, Respondent-Appellant, Petitioner on Review.
PAUL SANSONE, Plaintiff-Respondent, Respondent on Review,
v.
ROB GORDON, in his official capacity as the Sheriff of Washington County, Respondent-Appellant, Petitioner on Review.
STEVEN SCHWERDT, Plaintiff-Respondent, Respondent on Review,
v.
ROB GORDON, in his official capacity as the Sheriff of Washington County, Respondent-Appellant, Petitioner on Review.
LEE WALLICK, Plaintiff-Respondent, Respondent on Review,
v.
ROB GORDON, in his official capacity as the Sheriff of Washington County, Respondent-Appellant, Petitioner on Review.
CC 07-2755-Z7, CA A139875, SC S058645 (Control)), CC C073809CV, C0073810CV, C073811CV, CA A139802, SC S058642.
Supreme Court of Oregon, En Banc.
Argued and submitted March 3, 2011.
Filed: May 19, 2011.
Elmer M. Dickens, Senior Assistant County Counsel, Washington County Counsel, Office of County Counsel, Hillsboro, argued the cause and filed the briefs for petitioner on review Robert Gordon, Sheriff of Washington County.
James R. Kirchoff, Jackson County Counsel, Medford, argued the cause for petitioner on review Michael Winters. With him on the brief was G. Frank Hammond.
Leland R. Berger, Portland, argued the cause for respondents on review Cynthia Townsley Willis, Paul Sansone, Steven Schwerdt, and Lee Wallick. With him on the brief was John C. Lucy.
Denise G. Fjordbeck, Attorney-in-Charge Civil/Administrative Appeals, Salem, filed a brief on behalf of amicus curiae State of Oregon. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Margaret H. Leek Leiberan, Jensen & Leiberan, Beaverton, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc.
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DE MUNIZ, C. J.
The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed.
DE MUNIZ, C. J.
In these consolidated cases, the sheriffs of Jackson and Washington counties withheld concealed handgun licenses from persons who met all of the statutory conditions for issuance of such licenses, but who admitted to regular use of medical marijuana pursuant to registry identification cards issued under the Oregon Medical Marijuana Act, ORS 475.300 to 475.346. When the sheriffs' actions were challenged in court, the sheriffs responded that, to the extent that Oregon's concealed handgun licensing scheme does not concern itself with the applicants' use of medical marijuana, it is preempted by a federal prohibition on the possession of firearms by persons who, under federal law, are "unlawful user[s] * * * of a[] controlled substance." 18 USC § 922(g)(3). Both trial courts and, later, the Court of Appeals, rejected that preemption argument and held that the concealed handgun licenses were wrongfully withheld. We allowed the sheriffs' petitions for review and now add this court's voice to the lower courts': We hold that the Federal Gun Control Act does not preempt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses.
Before turning to the facts of the two cases, we describe some of the relevant statutory background. At the outset, we observe that Oregon's concealed handgun licensing statute does not purport to regulate the possession of firearms.1 Rather, the statute deals with a particular placement or use of a firearm — the carrying of a firearm concealed on one's person or its concealment, within the possessor's reach, in a vehicle. In Oregon, it is a crime — a misdemeanor — to carry a firearm that is concealed in either of those ways. ORS 166.250(1)(a), (b). However, that criminal prohibition does not apply to certain specified categories of persons, including" a[ny] person who is licensed under ORS 166.291 and ORS 166.292 to carry a concealed handgun." ORS 166.260(1)(h).
To obtain a concealed handgun license (CHL), a person must meet certain residency, age, and background requirements. ORS 166.291(1) (set out below, ___ Or at ___ (slip op at 3-4)). None of those requirements turns on the mere use of marijuana or other controlled substances; however, one requirement for obtaining a CHL is that the person" has not been convicted of an offense involving controlled substances." ORS 161.291(1)(L) (emphasis added).
To obtain a CHL, a person must submit an application, along with a fee, to the sheriff of the county in which the applicant resides. ORS 166.291(1)(a), (5). The form of the application is dictated by statute: It sets out the various statutory requirements for issuance of a CHL and a declaration that the applicant meets those requirements, which the applicant must sign. ORS 166.291(4). Upon a person's submission of an application:
"[t]he sheriff of a county, * * * upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person:
"(a)(A) Is a citizen of the United States; or
"(B) Is a legal resident alien who can document continuous residency in the country for at least six months and has declared * * * the intent to acquire citizenship status * * *;
"(b) Is at least 21 years of age;
"(c) Is a resident of the county;
"(d) Has no outstanding warrants for arrest;
"(e) Is not free on any form of pretrial release;
"(f) Demonstrates competence with a handgun [in certain specified ways]:
"* * * * *
"(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;
"(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;
"(i) Has not been committed to the Oregon Health Authority under ORS 426.130;
"(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;
"(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;
"(L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program [with certain listed exceptions]:
"* * * * *
"(m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738 [(i.e., a stalking citation or domestic violence restraining order)];
"(n) Has not received dishonorable discharge from the Armed Forces of the United States; and
"(o) Is not required to register as a sex offender in any state."
ORS 166.291(1) (emphasis added). There is one exception to the requirement that a license be issued to any applicant who meets the standards set out at ORS 166.291(1):
"Notwithstanding ORS 166.291(1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant's mental or psychological state or as demonstrated by the applicant's past pattern of behavior involving unlawful violence or threats of unlawful violence."2
ORS 166.293(2).
With that statutory background in mind, we turn to the two cases that are before us. In Willis v. Winters, 235 Or.App. 615, 234 P.3d 141 (2010), an applicant wished to renew an expired CHL and submitted a renewal application to the sheriff of the county where she resided (Jackson County), as required by ORS 166.295(1)(a).3 The application form was substantially in the form required by ORS 166.291(4) (described above, ___ Or at ___ (slip op at 2-3)); however, it contained additional questions about the applicant's use of drugs that the Jackson County Sheriff had added on his own initiative. In her responses to those additional questions, the applicant indicated that she used marijuana regularly and that her use had been authorized by a medical doctor. The sheriff denied the application on the ground that, under federal law, 21 USC § 841(a)(1), the applicant's use of marijuana was unlawful, and, as an illegal user of marijuana, she was prohibited from possessing firearms under 18 USC section 922(g) of the Gun Control Act of 1968, Pub L 90-618, 82 Stat 1213 (1968). The sheriff acknowledged that the applicant possessed an Oregon Medical Marijuana card that purported to authorize her use of marijuana, but he concluded that the federal prohibition on possession of firearms by unlawful users of controlled substances preempted Oregon's concealed handgun licensing law. The sheriff argued, in addition, that his issuance of a CHL to the applicant was prohibited under 18 USC section 922(a)(6),4 because it would likely deceive firearms dealers with respect to the lawfulness of selling firearms to the applicant.
The applicant sought judicial review of that denial in the Circuit Court for Jackson County, as provided in ORS 166.293(5). The circuit court rejected the sheriff's preemption arguments and ordered him to renew the applicant's CHL. The Court of Appeals affirmed. Willis, 235 Or App at 629. We describe the Court of Appeals opinion in Willis below.
The facts of Sansone v. Gordon, 235 Or.App. 695, 234 P.3d 150 (2010), are substantially the same, except that that case involved the sheriff of Washington County and three separate applicants who resided in that county. Each of the three applicants sought to obtain or renew a CHL; each filled out an application that contained questions about marijuana use that the sheriff had added to the form; each received a letter from the sheriff denying the application and explaining that Oregon's concealed handgun licensing statutes were preempted by federal drug and firearm statutes and that issuance of the CHLs would violate 18 USC section 922(a)(6); and each sought review of the denial in Washington County Circuit Court as provided in ORS 166.293(5). The court consolidated the cases and ultimately ordered the sheriff to issue or reinstate the applicants' CHLs. On the sheriff's appeal, the Court of Appeals affirmed, citing its opinion in Willis, which it had issued the week before. Sansone, 235 Or App at 696.
In Willis, the Court of Appeals resolved the issue of whether the federal prohibition on possession of firearms by "unlawful user[s] of controlled substances," 18 USC § 922(g)(3), preempted the Oregon statutes concerning CHLs by applying the preemption analysis employed by this court in Emerald Steel Fabricators, Inc. v. BOLI, 348 Or. 159, 230 P.3d 518 (2010). Invoking a distinction drawn in Emerald Steel between provisions that "affirmatively authorize" conduct that federal law prohibits and provisions that exempt conduct from criminal prosecution, the Court of Appeals held in Willis that Oregon's concealed handgun licensing statute is not preempted by federal law, because it does not affirmatively authorize what the federal statute prohibits — i.e., possession of firearms by unlawful drug users — but, instead, merely exempts licensees from state criminal liability for the possession of a concealed handgun. 235 Or App at 627.
The Court of Appeals in Willis also considered, and rejected, an alternative argument proffered by the sheriffs for refusing to issue a CHL to a medical marijuana user — that a sheriff's issuance of a CHL to such a person would violate a federal law, 18 USC § 922(a)(6), because it would likely mislead gun dealers "with respect to a[] fact material to the lawfulness of the sale [of firearms]" to the person (the material fact being that the sheriff had conducted a background check and had determined that the person was not prohibited from possessing firearms). The Court of Appeals concluded that that argument was based on an erroneous assumption that Oregon law requires a county sheriff to determine whether an applicant's possession of firearms would be unlawful before issuing a CHL to the applicant. Id. at 627-29. Ultimately, the court concluded that the denial of petitioner's CHL application was erroneous and affirmed the trial court's decision. As noted, the Court of Appeals shortly thereafter affirmed the trial court's decision in Sansone, relying on its decision in Willis.
The respondents in Willis and Sansone, i.e., the sheriffs of Jackson and Washington counties, separately petitioned for review by this court. We allowed their petitions and consolidated their cases for purposes of review. For the reasons discussed below, we conclude that (1) a sheriff's duty under the Oregon concealed handgun licensing law, to issue CHLs to qualified applicants without regard to their use of medical marijuana, is not preempted by 18 USC section 922(g)(3); and (2) neither is a sheriff excused from that duty on the ground that issuance of a concealed handgun license to a medical marijuana user would violate a federal law prohibiting the making of any statement that is likely to deceive a gun dealer regarding the lawfulness of the sale of a firearm.
We address the preemption issue first. The power of Congress to preempt state law arises from the Supremacy Clause of Article VI of the United States Constitution, which provides that the laws of the United States are "the supreme law of the land," and that the state courts "shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." The United States Supreme Court has identified three circumstances that result in the preemption of state law by federal law: (1) when the federal law expressly provides for preemption; (2) when a congressional statutory scheme so completely occupies the field with respect to some subject matter that an intent to exclude the states from legislating in that subject area is implied; and (3) when an intent to preempt is implied from an actual conflict between state and federal law. Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L Ed 2d 352 (2000). The third type of preemption exists not only when it is physically impossible to comply with both the state and federal law, but when "under the circumstances of the particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 85 L Ed 581 (1941).
Only the third type of preemption — preemption implied from an actual conflict — is relevant in the present case. That is so because the Gun Control Act of 1968 (the federal statute at issue) expressly renounces any Congressional intent to preempt state law unless the law is in "direct and positive" conflict with the Act. 18 USC § 927.5
As will be seen, the real point of contention in this case concerns the second of the two kinds of conflict preemption — "obstacle" preemption. Federal cases teach us that "obstacle preemption" questions are to be resolved by examining the federal law to ascertain its purposes and intended effects, examining the state statute to determine its effects, and comparing the results to determine whether the latter statute in some way obstructs the accomplishment of the objectives that have been identified with respect to the former statute. See, e.g., Perez v. Campbell, 402 U.S. 637, 644, 91 S.Ct. 1704, 29 L Ed 2d 233 (1971) (obstacle preemption analysis involves construction of federal and state statutes and then determination of whether they are in conflict); Crosby, 530 US at 373 ("What is a sufficient obstacle [to federal objectives] is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects[.]"). When traditional regulatory powers of the states are implicated (as in the present case), that analysis incorporates a presumption that Congress did not intend to preempt. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L Ed 1447 (1947) (preemption analysis assumes that "historic [']police['] powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress"); see also Murphy v. Waterfront Commission of New York, 378 U.S. 52, 96, 84 S.Ct. 1594, 12 L Ed 2d 678 (1964) (Justice White concurring) (states have primary responsibility for the administration of the criminal law and federal preemption of areas of crime control traditionally reserved to the states has been relatively unknown).
With the foregoing approach to obstacle preemption questions in mind, we turn to the statutes at issue.6 Earlier in the opinion, we described the relevant Oregon statutes at length. Briefly, those statutes (1) define as a crime the possession of firearms by certain classes of persons, but do not include either lawful or unlawful" users" of controlled substances in any of those classes (ORS 166.250(1)(c)); (2) define as a crime the concealed (but not the open) carrying of a firearm and the concealment of a firearm on one's person or within its possessor's reach in a motor vehicle, unless the person has a valid concealed handgun license (ORS 166.250(1)(a) and (b), ORS 166.260(1)(h)); and (3) require county sheriffs to issue a CHL to any applicant for a license who meets certain age, residency and background requirements, without regard to the applicant's use of controlled substances (ORS 166.291).7
The federal statute at issue, 18 USC § 922(g), provides, in relevant part:
"It shall be unlawful for any person —
"* * * * *
"(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC § 802));
"* * * * *
"* * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
(Emphasis added.) The federal statute thus makes it a federal crime for a person who uses marijuana in violation of federal law to possess a firearm in or affecting commerce. The United States Supreme Court has construed section 922(g) in terms of "keep[ing] firearms away from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 46 L Ed 2d 450 (1976) (construing earlier version of section 922(g)); see also Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 n 6, 103 S.Ct. 986, 74 L Ed 2d 845 (1983) (in enacting 18 USC § 922(g), Congress sought to keep firearms out of the hands of "presumptively risky people"). Because, under the federal Controlled Substances Act, 21 USC §§ 801-971, marijuana is a Schedule I controlled substance with no lawful uses, 21 USC § 812(b)(1), (c)(10), marijuana users necessarily are "unlawful users" for purposes of 18 USC section 922(g)(3) — and in a class of persons from whom Congress wishes to keep guns. Thus, the federal" purpose[] and intended effect[]" that is relevant to our inquiry is that of keeping firearms away from marijuana users, without regard to the lawfulness of such use under the laws of their state of residence.
The method Congress chose to accomplish that purpose is to make it a crime for all marijuana users to "possess firearms in or affecting commerce." Congress did not choose to effectuate its policy by enacting a law governing the conduct of state sheriffs — by, for example, prohibiting state law enforcement officers from issuing gun licenses to marijuana users. Consequently, there is no direct conflict between the federal and state statutes under consideration, in the sense of it being impossible to comply with both.
That leaves us to consider the other potential basis for conflict preemption: Does ORS 166.291, which requires county sheriffs to issue CHLs to qualified applicants even if they use marijuana in violation of federal law, stand as an obstacle to the full accomplishment and exercise of the federal firearms statute's purpose? The sheriffs contend that it does, because it allows marijuana users — persons who are deemed by Congress to be unqualified to possess firearms — to obtain licenses that effectively authorize their possession of firearms. But, as we have already observed, ___ Or at ___ (slip op at 1-2), that contention does not accurately reflect the actual terms of the CHL statute. Putting aside the question of whether the CHL statute affirmatively "authorizes" anything, the fact remains that the statute is not directly concerned with the possession of firearms, but with the concealment of firearms in specified locations — on one's person or in one's car. Although, in their briefing, the sheriffs treat that distinction as having no practical significance, there is nothing in the federal preemption analysis that would support that kind of broad brush approach. In fact, it is clear that, when the federal courts attempt to determine whether a state law stands as an obstacle to congressional purposes, they attempt to define the effect of the state statute with considerable precision. See, e.g., Florida Avocado Growers v. Paul, 373 U.S. 132, 144-46, 83 S.Ct. 1210, 10 L Ed 2d 248 (1963) (California statute that, for purpose of protecting California consumers, prohibited sale of avocados with oil content of less than eight percent, was not preempted by federal standards that established lower oil content for determining when avocados were sufficiently mature to be picked, processed, and transported).
Neither is the statute an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials.
In fact, it is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.
In other words, the real thrust of the sheriffs' argument appears to be that the state's choice not to use its gun licensing mechanism to enforce the federal policy is preempted, even though the federal law that the sheriffs rely on does not in any way mandate the use of state gun licensing schemes in any particular way. One obvious problem with that position is that it presumes that Congress has authority that, in fact, it does not have. It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program. Printz v. United States, 521 U.S. 898, 925-31, 117 S.Ct. 2365, 138 L Ed 2d 914 (1997); New York v. United States, 505 U.S. 144, 161-69, 112 S.Ct. 2408, 120 L Ed 2d 120 (1992). Although the United States Constitution establishes the supremacy of the federal government in most respects, it reserves to the states certain powers that are at the core of state sovereignty. New York, 505 US at 156-61. One expression of that reservation of powers is the notion that Congress lacks authority "to require the states to govern according to Congress's instructions." Id. at 162.8
It follows from that "anti-commandeering" principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state's decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Ultimately, then, we reject the sheriffs' contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.
The sheriffs offer an alternative legal justification for their refusal to issue CHLs to petitioners — that, by doing so, they would be violating a federal prohibition on knowingly making a "false" oral or written statement that would be "likely to deceive" gun dealers with respect to the lawfulness of selling a firearm to petitioners. 18 USC § 922(a)(6).9 The sheriffs observe that 18 USC section 922(t)(1) requires gun dealers, before transferring any firearm to any person not licensed under federal law to deal in guns, to contact the "national instant criminal background system" for a determination that that person's receipt of a gun would not be unlawful. The sheriffs further observe that, under 18 USC section 922(t)(3), that requirement
"shall not apply to a firearm transfer between a [licensed gun dealer] and another person if —
"(A)(i) such other person has presented to the [licensed gun dealer] a permit that —
"(I) allows such other person to possess or acquire a firearm;
"(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and
"(ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law."
The sheriffs contend that a prospective gun purchaser's presentation of a license issued under ORS 166.291(1) would have a tendency to lead a gun dealer to believe that the requirements of 18 USC section 922(t)(3) had been satisfied (i.e., that the issuer of the license had performed a background check and had determined that the licensee's possession of a firearm was lawful) and that the requirement that the dealer contact the national instant criminal background system before selling a gun to the licensee was waived. The sheriffs argue that, in light of that tendency, their issuance of a CHL to a person who is known to use medical marijuana (and who therefore is known to be prohibited from owning firearms under federal law) would be likely to deceive gun dealers about the lawfulness of selling a firearm to the person and thus would violate 18 USC section 922(a)(6).10
The sheriffs' argument is problematic for two reasons. First, it does not address the fact that, to violate 18 USC section 922(a)(6), the statement regarding the lawfulness of the contemplated firearms transfer that is "likely to deceive" the gun dealer must in fact be "false." An Oregon CHL issued in conformity with the requirements of ORS 166.291(1) is not false: It may indirectly convey an assurance that the licensee meets the requirements for issuance of such a license under ORS 166.291(1),11 but it does not purport to assure the lawfulness of the licensee's possession of firearms under federal law, even indirectly.
Second, there is little likelihood that a gun dealer who is attempting to follow the applicable law would be "deceiv[ed]" into a belief that the requirements of 18 USC section 922(t)(3) had been satisfied by a prospective buyer's presentation of an Oregon CHL. That federal statute excepts a firearm transfer from the requirement of a national instant criminal background check only if the prospective buyer presents a permit, issued in the last five years by the state in which the transfer is to take place, that allows the person to possess or acquire a firearm, and
"the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law."
18 USC § 922(t)(3)(A)(ii) (emphasis added). Under that provision, the national instant criminal background check is not waived by the mere fact that a government official in the relevant state has issued a gun license of some undefined variety to the prospective buyer. Rather, waiver of the background check depends on the law of the state that issued the permit. No Oregon law requires verification of compliance with federal law as a condition of issuance of a CHL. Any gun dealer that accepts an Oregon CHL as proof that the requirements of 18 USC section 922(t)(3) have been satisfied does so in disregard of Oregon's statutory scheme and cannot be said to have been deceived by anything other than the gun dealer's own lack of awareness of Oregon law.
To conclude: the sheriffs in this case are not excused from their duty under ORS 166.291(1) to issue CHLs to qualified applicants, without regard to the applicant's use of medical marijuana, on the ground that issuance of CHLs to medical marijuana users would violate a federal prohibition on making false statements about the lawfulness of transferring firearms to such persons. Neither are the sheriffs excused from that statutory duty on the ground that it is preempted by federal law. The sheriffs were without authority to deny petitioner's CHL applications.
The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed.
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Footnotes
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1. As a general proposition, individuals in Oregon have a right to possess firearms for defense of self and property, under Article I, section 27, of the Oregon Constitution. See generally State v. Hirsch/Friend, 338 Or. 622, 114 P.3d 1104 (2005). However, ORS 166.250(1)(c) makes it a crime for certain categories of persons — minors, felons, etc. — to "possess" firearms. Another subsection of the same statute explicitly provides that a person who is not within any of the excepted categories does not violate the law by "owning, possessing or keeping within the person's place of residence or place of business any handgun." ORS 166.250(2)(b). Yet another subsection provides that such a person does not violate the law by carrying a firearm "openly" in a belt holster. ORS 166.250(3).
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2. There is no claim in the present case that the sheriffs denied any of the petitioner's applications under ORS 166.293(2) or believed that any of the petitioners were likely to be a danger to themselves or others, or to the community at large.
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3. Under ORS 166.295(1)(a), the requirements for renewal of a CHL are identical to the requirements for an initial license set out at ORS 166.291, except that the applicant for renewal need not provide fingerprints and character references.
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4. 18 USC section 922(a)(6) makes it unlawful
"for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]"
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5. 18 USC section 927 provides:
"No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together."
Consistently with the United States Supreme Court's preemption analysis in the face of identical wording in the federal statute at issue in Wyeth v. Levine, 555 U.S. 555, ___, 129 S.Ct. 1187, 1196-1204, 173 L Ed 2d 51, 61-70 (2009), we assume that the words "direct and positive conflict" refer to the third type of preemption identified in Crosby — preemption implied from an actual conflict — and that such a conflict can be demonstrated by showing that compliance with both the federal and state law is impossible or that the state law "stands as an obstacle" to the full realization of the objectives expressed in the federal law. See Emerald Steel, 348 Or at 175 n 15 (following Wyeth approach to similarly worded savings clause in the Controlled Substances Act, 21 USC §§ 801-971).
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6. Rather than employing this basic federal approach to obstacle preemption problems, the parties (and the Court of Appeals) have couched their arguments primarily in terms of whether ORS 166.291 "affirmatively authorizes" possession of firearms by marijuana users or merely permits marijuana users to be exempted from criminal liability under ORS 166.250(1)(a) and (b) for Unlawful Possession of a Firearm. Those arguments clearly are directed at this court's decision in Emerald Steel, which held that a provision of the Oregon Medical Marijuana Act that "affirmatively authorized" the possession of marijuana for medical uses was preempted by the federal Controlled Substances Act, because it stood as an obstacle to a congressional purpose that inhered in that act — of prohibiting marijuana possession for any purpose. 348 Or at 178. However, Emerald Steel should not be construed as announcing a stand-alone rule that any state law that can be viewed as "affirmatively authorizing" what federal law prohibits is preempted. Rather, it reflects this court's attempt to apply the federal rule and the logic of the most relevant federal cases to the particular preemption problem that was before it. And particularly where, as here, the issue of whether the statute contains an affirmative authorization is not straightforward, the analysis in Emerald Steel cannot operate as a simple stand-in for the more general federal rule.
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7. As discussed above, ORS 166.293(2) permits a sheriff to decline to issue a CHL if the sheriff has "reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large," based on certain specified factors. The sheriffs here did not rely on that statute in denying the permits in these cases.
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8. The United States Supreme Court has further observed that, while Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power to compel the states to require or prohibit those acts. New York, 505 US at 166. However, Congress can encourage states to adopt or enforce federal policy preferences with financial and other sorts of incentives. Id. at 166-68.
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9. 18 USC § 922(a)(6) provides that it shall be unlawful:
"for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]"
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10. The sheriffs appear to have abandoned their related argument in the Court of Appeals that issuance of a CHL to a known medical marijuana user is a "false" (rather than deceptive) statement, because it actually asserts that the issuer has performed a background check and has determined that the licensee lawfully may possess firearms.
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11. On its face, a CHL provides certain pertinent information about the licensee, the name of the issuer of the license, and the date and place of its issuance, all under the heading "Oregon Concealed Handgun License." See ORS 166.292(3) (setting out form of concealed handgun license). If an interested party were to examine the statutory standards for issuance of an Oregon CHL, they might reasonably assume that the issuer had concluded that the licensee satisfied the requirement set out at ORS 166.291(1).
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STATE v. ULIZZI
STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL ANTHONY ULIZZI, Defendant-Appellant.
A142640.
Court of Appeals of Oregon.
Submitted on April 29, 2011.
Filed: November 9, 2011.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.
Before Haselton, Presiding Judge, and Armstrong, Judge, and Edmonds, Senior Judge.
HASELTON, P. J.
Affirmed.
Edmonds, S. J., concurring.
HASELTON, P. J.
Defendant, who entered a conditional plea of guilty, ORS 135.335(3), for possession of a controlled substance (marijuana), ORS 475.864, appeals the resulting judgment. He assigns error to the denial of his motion to suppress evidence obtained during a search of his residence pursuant to a warrant. Defendant contends, specifically, that essential averments of the affidavit on which the warrant was predicated were "stale" and, thus, the affidavit did not establish probable cause. As amplified below, we conclude, consistently with the standard of review prescribed and amplified in State v. Castilleja, 345 Or. 255, 264-66, 192 P.3d 1283, adh'd to on recons, 345 Or. 473, 198 P.3d 937 (2008), that the magistrate did not err in issuing the search warrant. Accordingly, we affirm.
The facts material to our review are undisputed. On February 8, 2008, members of the Jackson County Narcotics Enforcement Team (JACNET) executed a warrant to search defendant's residence in Ashland and discovered evidence of marijuana cultivation, including four growing marijuana plants and two grow lights, as well as various implements. The warrant was, in turn, based on an application, including an affidavit by Jackson County Sheriff's Detective Donald Adams, which Adams had written and submitted earlier that day.
In his affidavit, Adams recounted the following circumstances: On January 27, 2008, 11 days before the search warrant issued and was executed, defendant's former companion, Ammann, had sent a "computer generated complaint" to JACNET about a "possible marijuana growing operation" at defendant's residence. Ammann reported that she and defendant had two children, 11-year-old twins, E and M, who sometimes stayed at defendant's residence. According to Ammann, her son, E, had told her "about a month ago" that he had seen marijuana plants and "grow lights"1 in a shed at defendant's residence.
On January 31, responding to that complaint, Adams interviewed Ammann and both E and M. Ammann told Adams that she and defendant had lived together in the mid-1990s and that she had suspected during that time that defendant might be dealing marijuana because he used marijuana and he "would have several people over to the house for short periods of time." Although defendant always denied engaging in drug activity, while Ammann was pregnant with the twins, she found "a large amount of marijuana and money in the residence." She broke off her relationship with defendant within a year of that discovery—somewhere between 11 and 12 years before the search at issue here.
E told Adams that his younger half-brother had taken him to a shed at defendant's residence and inside he had seen "at least three plants and a heat lamp." E, who was "very sure" that the plants were marijuana plants,2 did not describe the size or development of the plants he saw.
M told Adams that she had not seen marijuana at defendant's house "but did know kind of what it smells like" from having once smelled what her mother told her was marijuana smoke — and that "she has smelled [that] different [from cigarette smoke] smell" at defendant's residence.3 However, M did not specify when that had occurred. M also told Adams that sometimes, "while at [defendant's] house[,] some people will come in and go into [defendant's] bedroom with [defendant]" and that "the people would sometimes be in there for a while, and at times * * * would come out in just a short period of time." M said that she would go into her father's bedroom "only to brush her teeth" and that, before she did so, "[defendant] goes in first[,] shuts the door, and she can hear what sounds like glasses being put up."
In the affidavit, Adams also recounted that he had confirmed with the Department of Human Services that defendant did not have a medical marijuana card and that a records check had disclosed that, in 2004, defendant had been arrested and charged with endangering the welfare of a child and possession of less than an ounce of marijuana.4
Finally, in the balance of his affidavit, Adams included averments based on his training and experience in drug-enforcement efforts. Many of those averments pertained to common practices by persons engaged in outdoor cultivation of marijuana at "remote" sites. For example, Adams stated that "an outdoor marijuana grow takes approximately three months" and that "often the marijuana seeds are germinated indoors, within the drug trafficker's residence or other buildings on the premises." Adams's affidavit did not include any information about the growing cycle of an indoor marijuana cultivation operation. In addition, Adams included more general averments pertaining to people who "sell and possess controlled substances," including that such persons "often keep their controlled substances, [transactional] records and paraphernalia in[, inter alia,] their residences and in outbuildings." Adams stated that the execution of prior search warrants involving other persons had yielded not only marijuana plants and transactional records but also a variety of durable implements and equipment, including fans, timers, and myriad heating and lighting systems.5 Adams's averments in that regard are similar to those typically made in connection with investigations of commercial controlled substance manufacture and distribution operations.
As noted, based on Adams's affidavit, the court issued a search warrant on February 8, which was executed later the same day, yielding inculpatory evidence. Defendant was charged with, as pertinent here, possession of a controlled substance (marijuana).
Thereafter, he filed a motion to suppress the evidence obtained during the warranted search, as well as derivative evidence. The gravamen of defendant's position, as expressed by his counsel during the hearing on the suppression motion, was as follows:
"In this case, you have six weeks between the sighting of three marijuana plants and [the] search warrant affidavit. We're not talking about a large scale grow. The child [E] thinks it's three plants. There's nothing in the affidavit [that] would allow the magistrate to conclude that the evidence would still be there six weeks later. In fact * * * although there's something in the affidavit talking about the length of an outdoor grow cycle, this is an indoor situation, and there's nothing in [the] affidavit talking about the length of the indoor grow cycle. There's no information where in the cycle the plants were at the time of this reported sighting. So we don't know if they're huge and harvested, if they're tiny and moved; there is just not sufficient information * * * to let a magistrate conclude that they would still be there.
"* * * * *
"* * * In the affidavit in this case, the detective is discussing commercial drug type offenses, and there's no evidence that that's what we're dealing with for [defendant]. It doesn't—it doesn't apply to him. There's stuff about people who possess large quantities of marijuana. Well there's nothing in the affidavit that would let the magistrate conclude that he possessed a large quantity of marijuana. There's information about drug trafficker[s]. There's nothing in the affidavit that would allow the magistrate to conclude that he's a drug trafficker. * * *
"* * * I don't think the State can say, we have three marijuana plants, therefore it's a commercial operation. And in commercial operations we expect to find all this [paraphernalia and equipment]. * * * [That is,] if it was commercial, somehow that means that there's probable cause to believe these durable items are going to be there in [defendant's] situation. I just—I don't think it's there[.]
"The only durable item that was described in the affidavit was some sort of lamp[.] * * * [T]he only thing [in this case] that the Court could reasonably conclude would be there, would be—that's durable, would be this heat lamp, that might be there. And that, in and of itself, is not evidence of any crime."
Thus, in moving to suppress, defendant argued only that there was no probable cause to believe that any inculpatory evidence could still be found at defendant's residence, given the interval of roughly six weeks between E's observations (a month before Ammann's initial report on January 28) and the issuance and execution of the search warrant 11 days later on February 8. In that regard, defendant's sole argument regarding the grow light that E had seen was that that light "in and of itself is not evidence of any crime." Defendant did not argue alternatively that, even if a magistrate could reasonably infer that the grow light that E saw at defendant's residence would still be there six weeks later, the lapse of time rendered it improbable that the marijuana plants would still be there—and thus, at least, even if there was probable cause to search for the former, the latter should be suppressed.
The trial court, after noting correctly that "we are to give deference to the search warrant process," rejected defendant's staleness argument. In doing so, the court referred to E's observation of the heat lamp and reasoned:
"[T]here was probable cause justifying the issuance of the search warrant. * * * I think that there is an issue on the growing; whether it's growing, whether it's going to be there a longer period of time. And that also that contrary to counsel's indication that grow lamps aren't evidence, I think they are evidence of manufacture. And I think that if you have an indoor grow, you figure there's going to be others there, that there's probably going to be some watering system, or something. There's going to be other things that are going to be evidence of this crime.
"So, I think that the [magistrate] did, in fact, appropriately issue the search warrant based upon the affidavit that the information contained in there was not so stale that they would not expect to find evidence of the crime of marijuana at that location."
On appeal, defendant reiterates his arguments in support of suppression. In assessing those arguments, we employ the standard of review prescribed in Castilleja, 345 Or at 264-66. In State v. Duarte/Knull-Dunagan, 237 Or.App. 13, 21-22, 238 P.3d 411, rev den, 349 Or. 370 (2010), we summarized that standard:
"When a defendant seeks to suppress evidence from a search authorized by warrant, contending that the information in the predicate warrant did not establish probable cause, the court's function is limited to determining whether, given the uncontroverted facts in the affidavit and reasonably derived inferences, the issuing magistrate reasonably `could have concluded that the affidavit (excluding the excised parts) established probable cause to search * * *.' [Castilleja, 345 Or] at 265. That is so regardless of whether the reviewing court—whether a trial court, this court, or the Supreme Court— might have drawn different inferences yielding a different determination.
"Further, in exercising that discrete review function, the court is to view the predicate affidavit in a `commonsense, nontechnical and realistic fashion,' with `doubtful cases * * * to be resolved by deferring to an issuing magistrate's determination of probable cause.' State v. Wilson, 178 Or.App. 163, 167, 35 P.3d 1111 (2001) (internal quotation marks omitted). That deferential standard comports with `the preference for warranted searches over those conducted without prior judicial authorization.' Id."
Applying that standard, we conclude that the issuing magistrate could reasonably infer that, notwithstanding the interval of six weeks, it was probable that some inculpatory evidence of unlawful marijuana cultivation—specifically, the heat lamp that E observed with the marijuana plants—could still be found at defendant's residence. Accordingly, the trial court correctly denied suppression.
Defendant's argument to the contrary is, as noted, predicated on notions of "staleness." In State v. Young, 108 Or.App. 196, 204, 816 P.2d 612 (1991), rev den, 314 Or. 392 (1992), we summarized the essential principles:
"Of course, information is never stale; that phrase is a shorthand description of the analysis about whether or not the evidence sought will be there after the length of time since the event described in the affidavit occurred. The purpose of the analysis is to determine whether, given the time between the event described and issuance of the warrant, there is a reasonable inference that the evidence will be where the affidavit suggests."
In explaining and addressing whether the passage of time precludes probable cause, we have identified and applied a variety of considerations. See generally State v. Kirkpatrick, 45 Or.App. 899, 903, 609 P.2d 433, rev den, 289 Or. 337 (1980) ("The question of whether the lapse of time involved is too long to justify a finding of probable cause depends upon all the circumstances."). Specifically, we and the Supreme Court have considered the following factors:
(1) the length of time (a factor that is addressed in all discussions of "staleness" by Oregon courts);
(2) the "perishability" versus the durability of the putative item, compare, e.g., State v. Henderson, 341 Or. 219, 225, 142 P.3d 58 (2006) (noting that two stolen diamond rings were "nonperishable items of high value" in rejecting staleness challenge), with State v. Corpus-Ruiz, 127 Or.App. 666, 670, 874 P.2d 90 (1994) (reversing denial of suppression based, in part, on determination that informant's statements pertaining to a heroin transaction six months earlier were impermissibly stale because "heroin is a substance that has a relatively long shelf life, but can be consumed in a short period of time and is easily moved");
(3) the mobility of the putative evidence, see, e.g., Corpus-Ruiz, 127 Or App at 670; State v. Bice, 115 Or.App. 482, 485-86, 839 P.2d 244 (1992), rev den, 315 Or. 312 (1993) (reversing suppression of evidence of residential marijuana growing operation because detailed information about the operation was not rendered "stale" by the passage of two months, but noting that "[t]he information was not about a quantity of marijuana that may be consumed or moved, but about a marijuana growing operation");
(4) the nonexplicitly inculpatory character of the putative evidence, see, e.g., Kirkpatrick, 45 Or App at 902-03 (reversing allowance of suppression and rejecting staleness argument based on interval of at least one year between the defendant's display of sexually explicit pictures to child complainants and the issuance of search warrant for those pictures, noting, in part, that "the photographs for which the warrant was issued were not illegal in themselves," supporting a reasonable inference that the defendant would have retained those photographs); State v. Veley, 37 Or.App. 235, 238, 586 P.2d 1130 (1978), rev den, 285 Or. 1 (1979) (reversing suppression of fruits of warranted search in a prosecution for contributing to the sexual delinquency of a minor where the warrant issued approximately 90 days after the purported conduct; noting that condoms, which were one of the items identified in the warrant, "are not contraband, but rather articles the continued possession of which is not illegal or unlikely"); and
(5) the propensity of an individual suspect or general class of offenders to maintain and retain possession of such evidence, see, e.g., State v. Daniels, 234 Or.App. 533, 539-43, 228 P.3d 695, rev den, 349 Or. 171 (2010) (addressing sufficiency of affiant officer's "training and experience"-based averments regarding pedophiles' purported retention of sexually explicit material over a period of several years).
Applying those considerations here, as pertinent, we have no difficulty in concluding that Adams's affidavit, reviewed consistently with Castilleja, did not establish probable cause to search for marijuana, including growing marijuana plants, at defendant's residence. That is so for two related, but distinct, reasons. First, as to the three plants that E observed six weeks before the issuance of the warrant, Adams's affidavit provided no information as to the maturity of those plants, the typical indoor growth cycle for marijuana plants, or the projected yield from such plants, which, arguably, could pertain to the likelihood that harvested marijuana would still be in defendant's possession. Compare, e.g., Young, 108 Or App at 198 (noting confidential informant's statement that he had seen "rows of plants with lots of `bud' on them"), and id. at 205 (noting affiant officer's statement that, with respect to indoor marijuana growing operation, it "takes months of cultivation before a marijuana plant produces buds"). Further, similarly to the heroin in Corpus-Ruiz, marijuana plants, at least in small numbers, are eminently perishable—or, when harvested, consumable—and mobile. Cf. Bice, 115 Or App at 485 (noting that the supposedly stale information "was not about a quantity of marijuana that may be consumed or moved"). Nothing in the affidavit provides any basis to determine that those plants that E saw probably were still in defendant's possession six weeks later.
Second, Adams's affidavit did not include facts from which a magistrate could reasonably infer and find that defendant was involved in a continuing cultivation operation, of the sort that we addressed in, e.g., Duarte/Knull-Dunagan, Bice, or Young, so that it was probable that other plants could be found at defendant's residence. See Duarte/Knull-Dunagan, 237 Or App at 22-23, 25 (noting that search warrant affidavit included information about purported hydroponic marijuana growing operation in the basement of the defendants' residence, including evidence of structural modifications of the basement and substantial increases in the defendants' water and electrical consumption; further noting officer affiant's averment that persons engaged in indoor marijuana growing operations "maintain a continuous supply of plants," so as to ensure "an ongoing and uninterrupted source of marijuana for harvest and sale" (internal quotation marks omitted)); Bice, 115 Or App at 484-85 (warrant affidavit included informant's description of observations, two months before, of, inter alia, a closet in the defendant's home having been converted for marijuana growing operation, with "several ounces to pounds of marijuana being dried" (internal quotation marks omitted)). There was no evidence of defendant's use or possession of marijuana in the intervening six weeks.6 There was no evidence that, with the exception of the single heat lamp, defendant possessed any of the materials and implements necessary for a continuing indoor marijuana cultivation enterprise. Finally, there was no nonspeculative evidence as to any distribution activity; although M described visitors going into her father's bedroom for varying lengths of time, she (apparently) did not witness or overhear conversations about any transactions or see any marijuana in defendant's bedroom or otherwise in his possession.
The staleness analysis with respect to the heat lamp stands in stark contrast to that for marijuana, including growing marijuana plants. Indeed, as defense counsel implicitly acknowledged at the suppression hearing, see ___ Or App at ___(slip op at 6), the issuing magistrate "could reasonably conclude" that the heat lamp "might be there" (viz., at defendant's residence). The heat lamp is durable, not "perishable" or "consumable." It is not inculpatory per se, so defendant would have had no obvious or compelling motivation to discard it, move it, or transfer it to a third person in the intervening six weeks. Although Adams here, unlike the officer affiant in Duarte/Knull-Dunagan, 237 Or App at 25, offered no "training and experience"-based averment regarding the likelihood of retention of that item, given the relatively brief interval of several weeks and the nature of the item, we conclude, consistently with Castilleja's standard of review, that the magistrate could determine that there was probable cause with respect to the heat lamp. Cf. Daniels, 234 Or App at 541-42 (noting that some "common[sensical]" propositions "need not be justified by any reference to training and experience" (emphasis in original)).
As noted, ___ Or App at ___(slip op at 6), defendant's sole response regarding the heat lamp was, and is, that the heat lamp was not "in and of itself" evidence of any crime. With due respect, that is a non sequitur. The fact that an item is not explicitly inculpatory does not mean that it is not evidence of a crime properly subject to a search warrant. See, e.g., Kirkpatrick, 45 Or App at 903 (noting that sexually explicit photographs that were the object of the search warrant, and which the defendant allegedly showed the child complainants, "were not illegal in themselves"); Veley, 37 Or App at 238 (condoms that were among the items identified in warrant to search for evidence of contributing to the sexual delinquency of a minor were themselves "not contraband, but rather articles the continued possession of which is not illegal or unlikely"). Specifically, here, the heat lamp, if discovered in defendant's possession, would, or could, corroborate E's account of seeing the three marijuana plants and the heat lamp, even if the plants no longer existed. Thus, the heat lamp was evidence of criminal activity, and the magistrate, in issuing the warrant, could properly determine that there was probable cause to believe that the lamp was still at defendant's residence.
That conclusion, in turn, returns us to the precise nature of defendant's argument to the trial court (and renewed on appeal) in support of his suppression motion. As set out above, ___ Or App at ___ (slip op at 6), defendant argued that Adams's affidavit did not establish probable cause that any evidence of unlawful manufacture, possession, or delivery of controlled substances could be found at defendant's residence, because of two conjunctive reasons: (1) The passage of time—and the lack of evidence of an ongoing operation—rendered the likelihood of finding marijuana, including growing plants, improbable; and (2) the heat lamp that E saw was not "in and of itself" evidence of a crime. Defendant never contended before the trial court, and has never asserted on appeal, that, regardless of the correctness of the second proposition, suppression of the marijuana plants was nevertheless required because Adams's affidavit failed to establish probable cause to search for and seize that evidence.
Our deconstruction of defendant's argument is not some mere academic exercise, some form-over-substance endeavor to "slice too thinly" the "preservation onion." State v. Amaya, 336 Or. 616, 629, 89 P.3d 1163 (2004). Rather, it implicates, and partakes of, very real practical concerns. If, for example, defendant had advanced such an alternative argument before the trial court, it is entirely possible that the state would have responded—and could have shown—that the marijuana plants would inevitably have been discovered, in plain view, during the lawfully authorized search for the heat lamp. Further, as recounted above, see ___ Or App at ___ (slip op at 6-7), the trial court's ruling on the suppression motion was based substantially—and, apparently, disjunctively—on its rejection of defendant's erroneous premise that the heat lamp was not "evidence of a crime." Even at that point, defendant did not assert, or clarify, that he was seeking to advance some sort of alternative analysis.
In sum, the trial court, in denying defendant's motion to suppress, correctly concluded that the magistrate could have found that evidence of unlawful possession, manufacture, or delivery of marijuana could be found at defendant's residence.
Affirmed.
EDMONDS, S. J., concurring.
I write separately in this case because I would hold that the trial court correctly concluded that the affidavit provided probable cause for a reasonable magistrate to issue a search warrant for the search of defendant's residence for evidence of the manufacture of marijuana.
Some general rules provide the legal framework for my conclusion. ORS 133.545(4) provides, in part, that an application for a search warrant "shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched." Probable cause to issue a search warrant "exists when the facts set out in the affidavit would lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Castilleja, 345 Or. 255, 264, 192 P.3d 1283 (2008) (internal quotation marks and citations omitted). "A reviewing court asks whether, based on the facts shown by the affidavit, a neutral and detached magistrate could conclude (1) that there is reason to believe that the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish probable cause to justify the search requested." Id. Reviewing courts "are to construe the supporting affidavit in a commonsense and realistic fashion." State v. Villagran, 294 Or. 404, 408, 657 P.2d 1223 (1983). "Thus, to uphold the warrant, the reviewing court need only conclude that the issuing magistrate reasonably could conclude that the facts alleged, together with the reasonable inferences that fairly may be drawn from those facts, establish that seizable things probably will be found at the location to be searched." Castilleja, 345 Or at 270-71 (emphasis in original).
I would hold in this case that the issuing magistrate reasonably could have concluded that evidence of growing marijuana could be found at defendant's residence at the time of the issuance of the search warrant. Defendant argues that "[t]he information in the affidavit was stale because there was a six week period of time between the sighting of the three marijuana plants and a grow lamp and the preparation of the affidavit." When a defendant argues that the information in an affidavit is "stale," that argument is essentially an argument that the affidavit fails to demonstrate that it is probable that the items sought under the warrant are still at the location to be searched at the time that the application for the warrant is made. However, when an affidavit provides a reasonable inference that the location to be searched is a place of drug production or manufacture, it is reasonable to infer from those facts that the operation is ongoing and that evidence of drugs and drug-manufacturing equipment are likely to be found there. See, e.g., State v. Wilson, 120 Or.App. 382, 387, 852 P.2d 910, rev den, 317 Or. 584 (1993) (affidavit information held not stale when an affiant spoke with an unnamed informant on March 5, 1990, regarding an allegation that a drug operation had occurred during the previous seven to eight months at a residence and an application for a warrant was made on April 23, 1990).
In this case, Detective Adams made an application for a search of defendant's premises on February 8, 2008. In support of that application, Adams submitted an affidavit that contained the following information that is pertinent to the issue of "staleness":
"On 01-27-08, Lisa Ammann made a computer generated complaint to JACNET regarding a possible marijuana growing operation in an out building at [defendant's residence].
"Lisa Ammann reported [that, defendant,] the father of her twin son and daughter, * * * lives at [the specified] address. Lisa stated that their twelve year old son [E] told her (Lisa) he saw marijuana plants approximately one month ago in the shed belonging to [defendant]. Lisa advised she has told her children if they ever see marijuana at their father's house, they are to let her know.
"Lisa reported that she was told by [E] that he had seen the marijuana plants and growing lights when she picked him up about one month ago. [E] pointed out the shed in which the marijuana was growing. Lisa's report indicated that she did not come forward sooner due to a fear of [defendant] and that her son asked her not to tell on his dad."
According to his affidavit, Adams thereafter contacted Ammann, her son, E, and her daughter, M, on January 31, 2008. Adams averred that on that occasion E told him that "he saw what he thinks is at least three plants and a heat lamp." E was "very sure" that the plants were marijuana plants. Ammann also told Adams that E had pointed out to her the shed in which he had observed the plants and the grow lights.
Adams also interviewed M. According to his affidavit,
"[M] also told me that while at her dad's house some people will come in and go into his bedroom with her dad. She told me the people would sometimes be in there for a while, and at times would come out in just a short period of time. I asked [M] if she goes into her dad's room, and she said `only to brush her teeth.' [M] said [that] when they do have to go into brush their teeth, their dad goes in first, shuts the door, and she can hear what sounds like glasses being put up. Shortly after hearing these sounds, her dad would let them brush their teeth."
The police executed the search warrant on February 8, 2008, and found four growing marijuana plants, two lights, and other drugs and drug-manufacturing objects. All of the information in the affidavit pertinent to the issue of probable cause occurred within a period that does not exceed 42 days—approximately a month lapsed between when E told Ammann that he had seen marijuana plants and when she made her initial report to the police, and the issuance of the search warrant occurred within 12 days thereafter.
Consequently, the proper focus is on the totality of the circumstances that occur within the time period in light of the information contained within the four corners of the affidavit. It may be that a single fact in the affidavit, by itself, is insufficient to afford probable cause. However, the proper test requires us to assess the cumulative effect of all relative facts. Those facts include E's observation of growing marijuana plants and growing lights, the information that M gave to the police, and the affiant's experience and training regarding seizure of marijuana-growing operations. In addition, the state is entitled to the benefit of every reasonable inference that flows from those facts.
For the reasons that follow, I disagree with the majority's conclusions that a reasonable magistrate could not infer that it was more likely than not that evidence of growing marijuana plants could be in defendant's possession on February 8, 2008. I further disagree with the majority's conclusion with regard to whether defendant was involved in a continuing cultivation operation. To begin with, this case is, for purposes of reasonable inferences that can be drawn from the core facts, a cultivation case and not a possession case. In light of the fact that E observed growing marijuana plants and grow lights, a maximum of 42 days between E's observation and the execution of the warrant is a relatively short period of time when the illegal cultivation of plants is the subject of the investigation. Also, cultivation cases, by their nature, give rise to an inference of ongoing activity over a period of time because it is ordinarily expected that the process of growing plants requires preparation of plant beds, planting, cultivating, and harvesting. Indeed, it is reasonably inferable from the nature of the cultivation process itself that some evidence of the cultivation process may remain in the place of cultivation for a significant period of time after harvest occurs. Adams's affidavit supports those inferences. He averred in his affidavit that, in his experience, "illegal cultivation and distribution of controlled substances, such as marijuana, is frequently a continuing activity over months and years." This combination of facts and inferences is all part of the legal equation for probable cause in this case.
Additionally, Adams stated in his affidavit, "With respect to marijuana cultivation, I am aware that an outdoor marijuana grow takes approximately three months (ninety-days) from the time the marijuana plant is planted in the soil until it is cultivated at the end of its season." The majority is not persuaded by that averment because this growing operation occurred indoors. One would ordinarily expect that plants grown under grow lights could mature more quickly if they are subject to a more continual light and heat source than plants grown outdoors, but the growth rate of particular plants depends necessarily on the extent to which the grow lights are actually used. Adams's averment is not without relevance. It defines for purposes of the affidavit an inferential timeline for the ordinary growth cycle of a marijuana plant. Its importance to the issue in this case is that it demonstrates by comparison, albeit inexact, the relatively short 42-day time period within which E's observation and the execution of the search warrant occurred.1 Finally, the inference from M's observations of the activities connected with her father's bedroom is a relevant consideration. First, M's report does not suggest that the activities she described happened only on one occasion. Rather, they imply reoccurring activities, i.e., "people would sometimes be in there for a while, and at times would come out in just a short period of time." Moreover, statements regarding her father's practice of not permitting her to brush her teeth without first entering the room and shutting the door further reinforce the inference that his actions to hide certain contents in the room occurred on more than one occasion. It is correct that nothing in the affidavit expressly ties these observations to the 42-day time period, but nothing in their nature excludes them from that time period either. Because those activities appear to be in the nature of habitual practices, they are inferentially further evidence of ongoing drug activity on the part of defendant.
In sum, the assessment of the sufficiency of an affidavit to determine whether it provides probable cause to search is a "four corners" analysis that must take into account the totality of the circumstances found by the magistrate to be true. Here, defendant does not contravene any of Adams's averments. The remaining question is whether those facts and the reasonable inferences available from them, when considered in combination with each other, make it more likely than not that evidence of marijuana cultivation would be found on defendant's premises on the date of the issuance of the search warrant. The issuing magistrate may or may not have drawn the above inferences or other inferences in support of his determination of probable cause. The point is that he reasonably could have drawn the above inferences, and that conclusion suffices to satisfy the standard of review imposed by Castilleja.2
For these reasons, I would reach the same result as the majority but based on different reasoning.
Footnotes
1. As described below, see ___ Or App at ___ (slip op at 2), when Adams subsequently spoke to E, E clarified that he had seen only a single "heat lamp."
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2. Ammann had educated both E and M about the appearance of marijuana, including showing them photographs and videos about drug awareness. In addition, E identified the lamp that he saw as a "heat lamp" from photographs Adams showed him. Defendant does not challenge E's identification of those items as unreliable.
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3. Although Ammann's computerized complaint stated that her twin children were 11 years old, Adams's affidavit states that M was 12. The affidavit does not explain that apparent inconsistency.
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4. Adams's affidavit does not refer to any convictions on those charges.
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5. Adams did not include in his affidavit any training and experience-based representations regarding the likelihood of a purported marijuana grower's "maintain[ance of] a continuous supply of plants," State v. Duarte/Knull-Dunagan, 237 Or.App. 13, 25, 238 P.3d 411, rev den, 349 Or. 370 (2010), or the likelihood of retention over time of grow-related equipment. Cf. id. (rejecting "staleness" challenge to warranted search where affidavit in support of warrant application stated, in part, that the "equipment used in the manufacture of marijuana plants is expensive and is normally used for more than one initial grow operation" and "[t]he equipment is not normally thrown away after being used to grow marijuana based on the grower's capital investment" (internal quotation marks omitted)).
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6. As noted, ___ Or App at ___ (slip op at 3), M's statement about smelling the "different smell," which she believed was marijuana smoke, did not identify when that had occurred.
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1. Again, in assessing the weight to be given that inference along with other available inferences, it is important to be mindful that the standard of review is not what weight I or the majority would give to a particular inference if we were the issuing magistrate, but what weight a magistrate would be legally entitled to give to it.
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2. The majority reaches the same conclusion based solely on the observation of the grow light. My quarrel with the majority is not its lack of reliance on that fact but on its failure to rely on the other facts in the affidavit in combination with that fact.
BEASLEY v. CITY OF KEIZER
Anthony Beasley, Plaintiff,
v.
City of Keizer, John Teague, Jeff Kuhns, Timothy S. Lathrop and John Troncoso, Lori Evans, and Kaite Suver, Defendants.
No. 09-6256-AA.
United States District Court, D. Oregon.
May 23, 2011.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Defendants filed a motion for summary judgment against plaintiff's Complaint. Defendants' motion is granted.
BACKGROUND
Plaintiff, Anthony Beasley, asserts that he suffered a series of constitutional violations pursuant to his Fourth Amendment rights as well as numerous state tort claims by defendants Keizer police officers John Teague, Jeff Kuhns, Timothy S. Lathrop, and John Troncoso (collectively, the "Officers"), defendants Deputy District Attorneys Lori Evans and Katie Suver, and the City of Keizer. Plaintiff's federal claims include: (1) false arrest and imprisonment; (2) illegal search and seizure; and (3) municipal liability under Monell. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978). Plaintiff's state claims include: (1) trespass; (2) invasion of privacy; (3) illegal targeting of medical marijuana holder; (4)intentional infliction of emotional distress; and (5) interference with a contract. Defendants move for summary judgment on all of plaintiff's claims.
At all times relevant to this action, plaintiff was a lawful marijuana card holder as a patient-grower and as a caregiver-grower for three patients. Plaintiff alleges that the Keizer Police Department was aware that his residence was a designated grow site as a patient under the Oregon Medical Marijuana Act (OMMA). On October 17, 2007, two of plaintiff's former roommates allegedly entered plaintiff's home illegally to collect their belongings. While inside plaintiff's home, one of the individuals observed suspicious devices on plaintiff's coffee table. Fearing these devices were pipe bombs, the individual contacted the Keizer Police Department for assistance. When the Officers arrived on the scene, the front door of the house was open and the suspicious devices were visible from the front porch. The officers contacted the bomb squad to assist in the investigation.
Meanwhile, plaintiff's landlord contacted plaintiff and informed him that the police were investigating an emergency phone call indicating the existence of pipe bombs in plaintiff's home. Plaintiff alleges that the officers would not speak to him until after the investigation was complete; however, plaintiff was eventually able to explain to the officers that the alleged pipe bombs were actually pipes used for manufacturing hash oil.
On October 19, 2007, defendant Officer Timothy S. Lathrop applied for a search warrant of plaintiff's home. The search warrant as well as the affidavit for search warrant identified the manufacture of hash oil as the crime and conduct alleged. Unsure of the legality of hash oil under OMMA and prior to submitting the affidavit for search warrant, Lathrop consulted with defendant Marion County Deputy District Attorney (DDA) Lori Evans. Before responding to Lathrop's inquiry, Evans conferred with defendant DDA Suver on the legality of hash oil under OMMA. Evans and Suver concluded that possession and manufacture of hash oil was illegal under OMMA. Once completed, the search warrant was authorized by Judge Claudia Burton and executed that same day.
On October 19, 2007, plaintiff was arrested at his friend's home pursuant to the execution of the search warrant. The arresting officer informed plaintiff that hash oil was a controlled substance, which was not authorized by OMMA. Thus, the possession and manufacture of hash oil was illegal.
Plaintiff further alleges that several newspaper articles were published regarding plaintiff's arrest, stemming from information received from the Keizer Police Department. As a result, plaintiff was evicted from his home and forced to move several times. Plaintiff alleges he suffered from severe emotional distress resulting in a 120 pound weight gain, night terrors, and other health issues. Plaintiff seeks relief in the form of actual and compensatory damages as well as punitive damages. Plaintiff also requests reasonable attorneys' fees and costs.
Plaintiff has withdrawn his third and fourth claims for relief regarding the illegal targeting of a medical marijuana card holder, and the intentional infliction of emotional distress against all defendants. Thus, these claims are dismissed. Moreover, plaintiff fails to stipulate with any specificity which defendants allegedly deprived plaintiff of his right to be free from illegal search and seizure. As such, I assume plaintiff brings this claim against the individual defendants Kuhns, Lathrop, and Troncoso.
STANDARDS
Summary judgment is appropriate "if 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." Fed. R. Civ. P. 56(c). Substantive law on an issue determines the materiality of a fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
Federal Claims
I. Defendants Lori Evans and Katie Suver
Lori Evans and Katie Suver move for summary judgment on plaintiff's section 1983 claims based on absolute and qualified immunity. I find that defendants Lori Evans and Katie Suver are, in fact, entitled to qualified immunity, and therefore, plaintiff's claims against these defendants are dismissed.
A prosecutor is protected by absolute immunity from personal liability under section 1983 "when performing the traditional functions of an advocate." Genzler v. Loganbach, 410 F.3d 630, 636 (9th Cir. 2005) (quoting Kalina v. Fletcher, 522 U.S. 118, 131 (1997)). However, "prosecutors are entitled to qualified immunity ... when they perform administrative functions, or investigative functions normally performed by a detective or police officer." Id. (internal quotations omitted). The Ninth Circuit recognizes that "a prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Id. at 637 (quoting Kalina, 509 U.S. at 274). Thus, whether a prosecutor enjoys absolute or qualified immunity depends primarily on the type of investigative work the prosecutor is performing.
A prosecutor gathering evidence is more likely to be performing a quasi-judicial advocacy function when the prosecutor is organiz[ing], evaluat[ing], and marshal[ing] [that] evidence in preparation for a pending trial, in contrast to the police-like activity of acquiring evidence which might be used in prosecution.
Id. at 639 (internal quotations omitted).
In determining whether an official is entitled to qualified immunity against a section 1983 claim, a court must consider two issues. First, a court must decide whether the facts that a plaintiff has alleged or has proven make out a violation of a constitutional right. If they do not, then the defendant is entitled to qualified immunity. Second, the court must decide whether the right at issue was clearly established at the time of the government official's alleged misconduct. If it was not, then the defendant is entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223 (2009); Saucier v. Katz, 533 U.S. 194 (2001). The key inquiry is whether it would be clear to a reasonable government official that the official's conduct was unlawful in the situation the official confronted. Prior case law must give the government official clear warning that the official's conduct is unlawful. Hope v. Pelzer, 536 U.S. 730 (2002).
Here, it is undisputed that defendants Evans and Suver only worked on plaintiff's criminal case in their official capacities as Deputy District Attorneys for Marion County, Oregon. First Amended Complaint, ¶ 7; Defs. Evans and Suver's Memorandum at 3. Prior to obtaining a warrant to search plaintiff's home, and, in accordance with departmental policies, defendant Lathrop contacted the Marion County District Attorney's Office for advice regarding the legality of hash oil under the Oregon Medical Marijuana Act, and ultimately directed his questions towards Evans. Evans subsequently consulted Suver in her capacity as a Deputy District Attorney regarding Lathrop's inquiry. Suver advised Evans that, based on the plain language of the OMMA statutes and Oregon criminal code, hash oil was not authorized by the Act. Evans then advised Lathrop in accordance with Suver's advice. Plaintiff's allegations against Evans and Suver relate solely to Evans' advisement of Lathrop, and the communication between Evans and Suver, related to the criminality of hash oil.
Plaintiff alleges that defendants Evans and Suver violated plaintiff's Fourth Amendment right to be free from false arrest and imprisonment by "incorrectly advising the other individual defendants that there was probable cause to arrest plaintiff without an arrest warrant." First Amended Complaint, ¶ 34.
Because it is undisputed that Evans and Suver worked on plaintiff's criminal case in their official capacities as Deputy District Attorneys for Marion County, and because they advised Detective Lathrop in the preparation of an initial search warrant of plaintiff's house, I find that Evans and Suver undertook the police-like activity of acquiring evidence which might be used in prosecution, and are thus entitled to qualified immunity.
In considering the first step of the qualified immunity inquiry, this court must determine whether plaintiff s constitutional rights were violated. Plaintiff contends that Evans and Suver violated his Fourth Amendment right to be free from false arrest and imprisonment when they advised the other individual defendants that there was probable cause to arrest plaintiff for the manufacture of hash oil without an arrest warrant. I disagree.
Evans and Suver advised Lathrop on the legality of hash oil for the purposes of obtaining a search warrant, which was granted, and subsequently led to plaintiff's arrest. Plaintiff relies on Oregon state statutes as evidence that his right to possess and manufacture hash oil is "clearly established." The Ninth Circuit, however, recognizes that "[w]hether the [defendants] violated a state law or an internal departmental policy is not the focus of our [qualified immunity] inquiry." Case v. Kitsap County Sheriff's Dept., 249 F.3d 921, 929 (9th Cir. 2001) (citing Gagne v. City of Galveston, 805 F.2d 558, 560 (5th Cir. 1986) ("A negations about the breach of a statute or regulation are simply irrelevant to the question of an official's eligibility for qualified immunity in a suit over the deprivation of a constitutional right.")). Rather, to determine whether an official is eligible for qualified immunity, the Ninth Circuit focuses on "whether a reasonable [official] would have known that the [defendants'] conduct violated [plaintiff's] federal statutory or constitutional rights rather than merely a state law or policy provision." Id. (emphasis added) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)); see also, Sweanev v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) ("To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.").
Plaintiff fails to provide any authority supporting a federal right to possess or access marijuana. In fact, there is no record of any court decision establishing a federal right to marijuana based on a state medical marijuana law; rather, courts have found no federal right to access or use marijuana in the context of state medical marijuana laws. See, e.g., Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007) (no federal right to use medical marijuana under California's medical marijuana law: "Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician."). Moreover, Congress has classified marijuana as a schedule I controlled substance. See 21 U.S.C. § 812 Schedule I (c)(10). This classification prohibits, among other things, the possession of marijuana outside of approved research projects. See 21 U.S.C. §§ 812, 823(f), 829. Without authority indicating a change in federal constitutional or statutory law, I find no violation of plaintiff's Fourth Amendment rights.
I find that Evans and Suver are entitled to qualified immunity, and therefore, defendants Evans' and Suver's motion for summary judgment is granted.
II. Defendants Jeff Kuhns, Timothy Lathrop and John Troncoso
A. False Arrest and Imprisonment
Plaintiff argues that the Officers violated plaintiff's Fourth Amendment right to be free from false arrest and imprisonment by arresting plaintiff without an arrest warrant, probable cause of a crime, or other constitutionally adequate provision. I disagree.
As an objective standard, probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer at the time of the arrest are sufficient to lead a prudent person to believe the suspect has committed, is committing, or is about to commit a crime. Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir. 1996). Probable cause does not require the same type of specific evidence of each element of an offense as would be needed to support a conviction; rather, "in dealing with probable cause ... 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." Adams v. Williams, 407 U.S. 143, 149 (1972)(internal citation omitted); see also United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999) ("Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.").
Plaintiff argues that possession and manufacture of hash oil is legal under the guidelines of OMMA, and therefore the Officers did not have probable cause to arrest plaintiff. Because Oregon law does not explicitly provide for and is currently unclear as to the legality of hash oil, I will not rule on plaintiff's arguments at this time, noting that such a ruling is not necessary for the purposes of this motion.
The U.S. Supreme Court recognizes that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Virginia v. Moore, 553 U.S. 164, 176 (2008) (police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law). The Court further recognizes that while state laws "vary from place to place and from time to time, Fourth Amendment protections are not so variable and cannot be made to turn upon such trivialities." Id. at 172 (internal citations omitted). If Fourth Amendment analysis were to incorporate state law limitations, "the constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed." Id. at 175.
Consequently, whether OMMA provides qualified persons an exception from state criminal charges or an affirmative defense is irrelevant in the context of plaintiff's civil rights action brought under 42 U.S.C. § 1983. See, e.g.. Emerald Steel Fabricators, Inc. v. BOLI, 348 Or. 159, 178, 230 P.3d 518 (2010) ("To the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it without effect.") (internal citations omitted). Instead, the analysis depends on federal law, which classifies marijuana as a schedule I controlled substance. See 21 U.S.C. § 812 Schedule I (c)(10). This classification prohibits, among other things, the possession of marijuana outside of approved research projects. See 21 U.S.C. §§ 812, 823(f), 829. Furthermore, the prohibition of marijuana exists regardless of medical needs. See, e.g., Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007).
As such, I find that the Officers had probable cause to arrest plaintiff. Following the October 17, 2007, emergency phone call indicating the existence of pipe bombs in plaintiff's home, several officers at the scene learned and consequently reported to Lathrop that the alleged pipe bombs were actually devices used for the extraction of hash oil. After learning that plaintiff possessed and manufactured hash oil, Lathrop reviewed the Oregon laws concerning the unlawful manufacture and delivery of controlled substances within 1,000 feet of a school as well as OMMA. Lathrop also read a news article detailing the conviction of three individuals in California for the possession of hash oil. Unsure as to whether OMMA permits the possession of hash oil, Lathrop contacted the Marion County District Attorney's Office for legal advice. He informed Deputy District Attorney Evans of the relevant facts, including plaintiff's status as an OMMA cardholder. After consulting with another District Deputy Attorney, Evans informed Lathrop that the District Attorney's office had previously prosecuted individuals for possession and/or manufacturing hash oil, and would do so in this case. See Stevens v. Rose, 298 F.3d 880, 884 (9th Cir. 2002) ("While reliance on counsel's advice will not satisfy a defendant's burden of acting reasonably, it is evidence of ... good faith.") (quoting Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990)).
Lathrop then outlined in his Affidavit for a Search Warrant all of the factors that caused him to believe a crime had been committed, which included his understanding of the manufacture of hash oil, a criminal background check detailing plaintiff's Robbery III conviction as well as several arrests in Oregon for the possession and delivery of controlled substances, including methamphetamine. Finally, upon a similar finding of probable cause, Judge Claudia Burton authorized Lathrop's search warrant and plaintiff was subsequently arrested. See Spinelli v. United States, 393 U.S. 410 (1969) (judicial officer must make an independent judgment that probable cause exists prior to issuing a search warrant), abrogated on different grounds by Illinois v. Gates, 462 U.S. 213 (1983).
Plaintiff further argues that the Grand Jury's decision not to bring criminal charges proves that the Officers lacked probable cause to make an arrest under the Fourth Amendment; however, the Grand Jury decision has no bearing on the constitutionality of an arrest. See Pierson v. Ray, 386 U.S. 547, 555 (1967). Moreover, the Fourth Amendment requires a standard of reasonableness, not certainty, and a sufficient probability that probable cause exists is the touchstone of reasonableness. Hill v. California, 401 U.S. 797, 804 (1971).
Because the facts involved in this case are undisputed, Lathrop researched and reviewed Oregon criminal statutes regarding controlled substances as well as OMMA, sought additional advice from the District Attorneys Office, and received authorization and approval from an independent judicial officer, I find that, as a matter of law, the circumstances were sufficient to lead a reasonable and prudent person to conclude plaintiff had committed, was committing, or was going to commit a crime. Thus, I grant defendants' motion for summary judgment regarding false arrest.
B. Illegal Search and Seizure
Plaintiff argues that the Officers violated his Fourth Amendment right to be free from illegal search and seizure by applying for a search warrant without proof of illegal conduct. Plaintiff specifically adopts his arguments concerning the Officers' alleged lack of probable cause to arrest plaintiff. Although defendant Officers mistook plaintiff's complaint to rely solely on the Officers' entry into plaintiff's home on October 17, 2007, and provided similar legal support, I find that the Officers, as previously discussed, had probable cause to obtain a search warrant.
Even if plaintiff could show that a genuine issue of material fact exists as to the existence of probable cause, the Officers are entitled to qualified immunity. As previously discussed, "[w]hether the [defendants] violated a state law or an internal departmental policy is not the focus of our [qualified immunity] inquiry." Case v. Kitsap County Sheriff's Dept., 249 F.3d 921, 929 (9th Cir. 2001) (citing Gagne v. City of Galveston, 805 F.2d 558, 560 (5th Cir. 1986)). Instead, the Ninth Circuit focuses on "whether a reasonable [official] would have known that the [defendants'] conduct violated [plaintiff's] federal statutory or constitutional rights rather than merely a state law or policy provision." Id. (emphasis added) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)). Plaintiff provides evidence of an allegedly established state right to possess hash oil, yet fails to provide evidence of a similar federal constitutional right. Therefore, the Officers are entitled to qualified immunity and plaintiff's claim fails.
III. Defendant City of Keizer
Plaintiff asserts a claim for municipal liability against defendant City of Keizer, arguing that the City's policies led to the violation of plaintiff's rights. Plaintiff contends that the City had a custom, policy or practice of allowing its officers to illegally consider hash and hash oil to be outside the protections of OMMA, and arrest OMMA cardholders for possessing these marijuana derivatives. Plaintiff further contends that even if the City's policy and training was proper, the defendant Officers shared an erroneous belief that hash oil is not protected by OMMA. The City moves for summary judgment on plaintiff's Fourth Amendment claims. I find no evidence of a constitutional violation as required to impose municipal liability. Therefore, defendant City's motion for summary judgment is granted.
A Monell claim against the City can only arise "[w]hen execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983." Monell, 436 U.S. at 694. In other words, a municipality is not liable under 42 U.S.C. § 1983 for injuries inflicted solely by its employees or agents. To succeed on a Monell claim, the plaintiff must prove that: (1) he possessed a constitutional right of which he was deprived; (2) the municipality has a policy; (3) the policy amounts to a deliberate indifference to plaintiff's constitutional rights; and (4) the policy is the moving force behind the constitutional violation. Mabe v. San Bernadino County Dept. of Public Social Services, 237 F.3d 1101, 1111 (9th Cir. 2001).
As previously discussed, plaintiff's Fourth Amendment claim rests solely on an alleged violation of Oregon State law, without reference to a federal constitutional violation. Because plaintiff's evidence lacks an essential element of a Monell claim, summary judgment is granted in favor of the City.
Supplemental Jurisdiction Over Pendent State Law Claims
I need not consider plaintiff's remaining state law claims alleged against defendants as I decline to exercise supplemental jurisdiction over those remaining claims. Title 28 U.S.C. § 1367 provides the basis for supplemental jurisdiction:
Except as otherwise provided in subsection (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Subsection (c) of 28 U.S.C. § 1367 provides the court with discretion to "decline to exercise" supplemental jurisdiction in various circumstances including when "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367 (c) (3).
That is exactly the situation at bar. Here, defendants have filed a motion for summary judgment against plaintiff's federal claims, which the court has granted. Remaining, are state law claims against defendants. This court declines to exercise jurisdiction over any remaining state law claim. Therefore, this complaint is dismissed in its entirety and the state law claims are remanded to state court.
CONCLUSION
Defendants City of Keizer, John Teague, Jeff Kuhns, Timothy Lathrop and John Troncoso's summary judgment motion (doc. 31) is granted regarding plaintiff's federal claims. Defendants Lori Evans and Katie Suver's summary judgment motion (doc. 51) is granted. Plaintiff's state claims are dismissed and remanded to state court. This case is dismissed and all pending motions are denied as moot.
Finally, plaintiff's request for oral argument is denied as unnecessary.
IT IS SO ORDERED.
STATE v. BREWER
274 P.3d 311 (2012)
249 Or. App. 174
STATE of Oregon, Plaintiff-Respondent,
v.
Joshua Ryan BREWER, Defendant-Appellant.
093919FE; A146981.
Court of Appeals of Oregon.
Submitted February 3, 2012.
Decided March 28, 2012.
Jesse Wm. Barton filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.
PER CURIAM.
Defendant, a registered medical marijuana user, was convicted of unlawful manufacture of marijuana, ORS 475.856, and unlawful possession of marijuana, ORS 475.864. On appeal, he argues that the trial court erred in denying his motion for a judgment of acquittal on both counts, because the evidence did not demonstrate that there was more "usable" marijuana at his address than he and his cousin, also a registered medical marijuana user at that address, could together lawfully possess as cardholders under the Oregon Medical Marijuana Act. See ORS 475.309(1); ORS 475.320. The state concedes that the trial court should have granted the motion for a judgment of acquittal as to both counts. We agree, accept the concession, and reverse defendant's convictions.
Reversed.
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