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Commonwealth v. Richardson

Supreme Judicial Court of Massachusetts, Middlesex

April 17, 2018


          Heard: December 7, 2017.

         Complaint received and sworn to in the Framingham Division of the District Court Department on September 9, 2013. A motion to dismiss was heard by Douglas W. Stoddart, J.; a pretrial motion to suppress evidence was heard by Martine Carroll, J.; and the case was tried before David W. Cunis, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Allison Callahan for the defendant.

          Elizabeth J. May, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

          KAFKER, J.

         The defendant, a medical marijuana patient, was arrested when police discovered twenty-two marijuana plants growing in his basement. After a jury trial, he was convicted of unlawful cultivation of marijuana and possession with intent to distribute marijuana. On appeal, he argues that (1) the criminal complaint and the search warrant lacked probable cause; (2) the jury instructions were in error; (3) the evidence was insufficient to find the defendant guilty beyond a reasonable doubt; and (4) the medical marijuana law's sixty-day supply limit is unconstitutionally vague as applied. For the reasons stated below, we reverse in part and affirm in part.

         1. Background.

         The defendant, Joshua A. Richardson, was an unemployed tattoo artist living in Framingham at the time of his arrest. On July 2, 2013, he obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions. The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use.[1] Approximately two months later, on September 7, 2013, the defendant telephoned 911 to report a home invasion at his residence. The defendant told the 911 operator that three men had entered his home and "started beating the hell out of [him]."

         Officer Wayne Jordan reported to the defendant's residence within a few minutes of receiving the dispatch. The defendant told Wayne that three men had broken into his house, one of whom had a gun. Approximately twenty officers arrived on scene, including a number of Framingham police vehicles; State police vehicles and canine units; a State police helicopter; and officers from surrounding towns. The police established a perimeter around the house to search for the home invaders. Framingham police Sergeant Michael Esposito assembled a team of officers to enter the defendant's home to determine whether the suspects were still inside. The team did not find anyone inside the house. However, Sergeant Esposito observed a pressure cooker and an autoclave[2] in the kitchen. In a room on the first floor, Sergeant Esposito noticed "a fan and blower assembly with a hose feeding it air or taking air out." He observed a plastic container with aluminum trays with a brown leafy substance in them, which he described at trial as "some type of something growing in those trays."[3] He also found a blow torch and numerous plastic bags in the room.

         Sergeant Esposito learned from other officers on the team that they had found marijuana growing in the basement. At that point, Esposito ordered everyone out of the house and secured the premises. Once outside, Sergeant Esposito read the defendant the Miranda rights. The defendant indicated that he would not speak with police without his attorney present, and Esposito stopped asking him questions. However, the defendant then said, unprompted, that the police "only had the right to go in my house and look for . . . the guys with the gun. I never gave you permission to look for drugs. This is fucked up." He indicated that he had a license to grow marijuana. At that point, the defendant was placed under arrest and searched. The police found $2, 135 in cash in his pocket.

         After the defendant was arrested, he was taken to the Framingham police station. He requested to speak with the detectives investigating his case. Detective Robert Lewis of the Framingham police department's narcotics unit brought the defendant into an interview room and read him the Miranda rights again. The defendant explained to the detective that he had recently been given a medical marijuana card and was growing marijuana under that registration, referring to the doctor's certification issued to him on July 2, 2013. On the morning of his arrest, he was in the basement pruning his marijuana plants when he heard a noise coming downstairs. He saw two individuals, one with a gun. He ran upstairs to the second-floor bedroom, and noticed a third man coming up the stairs toward him. He escaped the house and telephoned 911, using a cellular telephone borrowed from a passing bystander.

         Pursuant to a search warrant, Framingham officers seized twenty-two plants ranging in height from one foot to three feet tall, fertilizer, pots, and soil from the basement. According to Officer Lewis, some of the plants were "in full bloom."[4] The plants were all located in the basement, in a tent designed for growing marijuana. The officers found two large five feet by three feet high intensity lights hanging over the marijuana plants, a ballast system, [5] and other boxes of lights in the basement. There was a "fertilizer grow kit" in the basement as well, labeled, "Recipe for Success Starter Kit". In the room on the first floor that Sergeant Esposito had previously examined, they found a scale and plastic bags.[6] In the kitchen, they found fertilizer advertised for growing marijuana. Detective Lewis also testified that they found evidence of a tattoo business in the house, specifically a tattoo gun. However, he did not find any physical evidence that a home invasion had occurred or that anyone else had been in the house. Lewis further testified that the defendant's account of seeing a third man come up the stairs to the second floor was inconsistent with the layout of the house.

         At trial, the defendant's former girl friend, who was dating and living with him at the time of his arrest, testified for the Commonwealth. The couple had known each other for fourteen months and had dated for eleven months when the defendant was arrested. When asked if the defendant was a regular marijuana user at the time of his arrest, she testified, "not that I noticed -- maybe a couple times. I don't know what he did when I he [sic] was not around." She stated that he was not working at the time. She observed him leave the house from time to time but didn't know where he went. She worked five or six days per week, and when she came home the defendant was often sleeping, hidden in the back room on the first floor, or not home. She acknowledged that the defendant had tattoo equipment at the house, and that she saw him "do a couple of tattoos." She also testified that he was typically paid in cash by friends for giving them tattoos. In the whole time she dated the defendant, she could recall approximately six times that he said he was going to do work at a tattoo parlor. She did not know whether his tattoo equipment included the pressure cooker or autoclave found in the house.

         The defendant was charged with unlawful cultivation of marijuana and possession of marijuana with intent to distribute. Prior to trial, he moved to dismiss the complaint, arguing that there was no probable cause to believe he had committed the crimes charged. The motion was denied. The defendant then moved to suppress his statements to police and the evidence seized, arguing that he did not give police permission to enter his house in the first instance, and that there was no probable cause to believe that he had committed the crimes charged. The motion to suppress also was denied. After a jury trial, the defendant was convicted on both counts. The defendant appealed, and we granted his application for direct appellate review.

         2. Discussion.

         General Laws c. 94C, § 32C (a.), provides:

"Any person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense or cultivate a controlled substance in Class D of [§ 31] shall be imprisoned in a jail or house of correction for not more than two years or by a fine or not less than [$500] nor more than [$5, 000], or both such fine and imprisonment."

         The applicability of this section was altered by the legalization of medical marijuana in Massachusetts.

         The Commonwealth's medical marijuana scheme, St. 2012, c. 369 (act), was passed by ballot initiative in 2012.[7] It provides in part:

"A qualifying patient or a personal caregiver shall not be subject to arrest or prosecution, or civil penalty, for the medical use of marijuana provided he or she:
"(a) Possesses no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply; and
"(b) Presents his or her registration card to any law enforcement official who questions the patient or caregiver regarding use of marijuana."

St. 2012, c. 369, § 4. However, "[n]othing in [the act] supersedes Massachusetts law prohibiting the possession, cultivation, transport, distribution, or sale of marijuana for nonmedical purposes." St. 2012, c. 369, § 7 (E). The act went into effect on January 1, 2013, and corresponding regulations became effective May 24, 2013. St. 2012, c. 369, § 16.

         Under the act, qualifying patients may use marijuana for medicinal purposes, within certain parameters. "[T]he principal source of medical marijuana is intended to be the nonprofit medical marijuana treatment centers, or dispensaries, that are to be registered by [the Department of Public Health]" (department). Commonwealth v. Canning, 471 Mass. 341, 345-346 (2015). However, the act permits qualifying patients to obtain a "hardship cultivation registration" in certain limited circumstances.[8] St. 2012, c. 369, § 11.

         Patients may qualify for a hardship cultivation registration if their access to a dispensary is "limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a treatment center within a reasonable distance of the patient's residence." St. 2012, c. 369, § 11. A hardship cultivation registration allows the qualifying patient or the patient's personal caregiver to "cultivate a limited number of plants, sufficient to maintain a [sixty]-day supply of marijuana." Id. A "sixty-day supply" is defined by regulation as presumptively ten ounces, unless a physician certifies that a larger quantity is necessary to provide the patient with a sixty-day supply. See 105 Code Mass. Regs. §§ 725.004, 725.010(1) (2017).

         The hardship cultivation registration was envisioned as "an approach of last resort." Memorandum from DPH Medical Marijuana Work Group to Interim Commissioner of Department of Public Health and Members of Public Health Council, Informational Briefing on Proposed Regulations at 105 CMR 725.000, at 6 (Apr. 10, 2013). Recognizing the possible "diversion and security complications" that accompany home cultivation, the department promulgated medical marijuana regulations with an intent to "minimize hardship cultivation by optimizing access through a variety of [other] approaches." Id. at 8. However, at the time of the defendant's arrest, there were no medical marijuana dispensaries open in Massachusetts, and the department had not yet begun to process hardship cultivation registration applications. See Canning, 471 Mass. at 347-348 & n.10. Thus, as a qualifying medical marijuana patient, the defendant was permitted to pursue home cultivation under the act. See Id. at 349 ("when the search at issue here took place, the act was not fully implemented; no marijuana treatment centers were operating; and therefore, . . . every person who was certified as a qualifying patient . . . was authorized to cultivate a sufficient quantity of marijuana to produce a sixty-day supply" [emphasis in original]). Accordingly, the defendant was protected from prosecution for cultivating marijuana for his personal, medical use, provided he did not possess marijuana in excess of the amount necessary for a sixty-day supply. See St. 2012, c. 369, § 4.

         a. Probable cause.

         The defendant argues that the motion to dismiss and the motion to suppress were each improperly denied. On appeal, he provides the same rationale in support of both contentions -- that there was insufficient probable cause.

         i. Motion to suppress.

         In determining whether the motion to suppress was properly denied, we are limited to examining the four corners of the search warrant affidavit. Canning, 471 Mass. at 348. We must decide whether "the magistrate had a substantial basis to conclude that a crime had been committed, . . . and that the items described in the warrant were related to the criminal activity and probably in the place to be searched." Id., quoting Commonwealth v. O'Day, 440 Mass. 296, 297-298 (2003) .

         A search warrant affidavit that merely sets out facts establishing probable cause to believe a homeowner is growing marijuana on the property to be searched, without more, does not establish probable cause to believe a crime has been committed. Canning, 471 Mass. at 352-353.[9] Where the target of the warrant has a valid hardship cultivation registration, facts indicating that the person is selling the marijuana or that "in the opinion of a properly qualified affiant, the number of plants exceeded the quantity necessary to grow a sixty-day supply of ten ounces" can supply probable cause. Id. at 352 n.15. The search warrant at issue here established both.

         The affidavit that Detective Lewis submitted in support of the search warrant stated explicitly that based on the number of plants found, the conditions under which they were growing, and his own experience with the narcotics unit, he believed that the "marijuana grow" was in excess of the amount necessary for personal medical use. Moreover, the affidavit indicated that a suspected "psilocybin mushroom grow" was found in the house; the defendant's long-term girl friend did not know why he was growing marijuana given that he did not smoke marijuana on a regular basis; and the defendant had said that two men came directly into his basement, the exact location of his marijuana grow, and that one had brandished a gun. This was sufficient to establish probable cause.[10]

         The defendant argues that the police were required to investigate how much marijuana constituted a sixty-day supply under his registration, because "[n]either the statute nor the [regulations] provide[s] a presumptive limit on how much marijuana a person may legally prescribe." The defendant misstates the law. Although there is no absolute limit on how much medical marijuana can be prescribed, the presumptive limit is indeed ten ounces in a sixty-day period. See note 14, infra. Accordingly, there was sufficient probable cause for the search warrant.

         ii. Motion to dismiss.

         A motion to dismiss for lack of probable cause is evaluated from the four corners of the application for a complaint. See Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002); Commonwealth v. Bell, 83 Mass.App.Ct. 61, 62 (2013). Here, the application included police reports from Sergeant Esposito and Detective Lewis, which laid out substantially the same factual basis as the search warrant affidavit. Accordingly, for the reasons explained above, the motion to dismiss also was properly denied.

         b. Jury ...

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