People v. Fisher

Opinion

HULL, J.

In the published portion of this opinion we decide that law enforcement officers are not required to abandon a search for marijuana authorized by a search warrant when a resident of the premises to be searched produces documents that suggest he has a physician’s permission to possess the marijuana pursuant to the Compassionate Use Act of 1996, codified as Health and Safety Code section 11362.5 (all unspecified statutory references are to the Health and Safety Code).

Facts and Procedural History

On July 30, 1999, a Siskiyou County deputy sheriff participating in a flyover of defendant Stephen Ray Fisher’s property observed “at least three marijuana plants” behind defendant’s home. Based on this observation, a search warrant was issued for defendant’s residence, and on August 4, officers went to defendant’s residence to serve the warrant.

Before the officers could execute the warrant, defendant acknowledged that the marijuana behind the residence was his but showed the officers a “certificate” purporting to be a physician’s permission to possess the marijuana for medicinal use in accordance with section 11362.5. Although the officers were unsure at that point whether a crime had been committed, they searched defendant’s residence, because they thought there remained the “possibility” a crime was being committed. The search revealed additional marijuana, as well as a cane sword and ammunition.

[1150]

Defendant was charged with various counts based on his possession of marijuana (§§ 11358, 11359, 11360). He also was charged with unlawful possession of a cane sword (Pen. Code, § 12020), possession of ammunition by one previously convicted of a felony (Pen. Code, § 12316, subd. (b)(1)), and theft by false pretenses (Pen. Code, § 484), the latter charge arising out of defendant’s acceptance of money as a caregiver in dispensing the marijuana.

Defendant moved to suppress the evidence (Pen. Code, § 1538.5), arguing that, once the officers were shown the certificate, probable cause for the search no longer existed. He contended also that the search warrant was overbroad. After considering the evidence relating to the search, the court denied the motion. A jury thereafter convicted defendant of unlawful possession of the cane sword and the ammunition and acquitted him of the remaining charges. The court placed defendant on probation.