SPOKANE — The Washington State Court of Appeals, Division III, upheld the convictions of a Moses Lake man who was found guilty by a Grant County jury of the unlawful manufacture and possession of marijuana.

In June 2012, the Grant County Sheriff’s Office received information from a confidential informant about a marijuana grow operation being run by Stephen Sandberg, 58, of Moses Lake. The sheriff’s office obtained a search warrant and court authorization to record a controlled marijuana buy from Sandberg. On June 13, the confidential informant took an undercover detective, who was wearing a wire, to Sandberg’s home and workshop. Sandberg showed them his grow operation and sold the two marijuana.

The search warrant was executed the next day and Sandberg was taken into custody. He was charged in Grant County Superior Court with manufacturing, possession, and delivery of a controlled substance. Before his trial, Sandberg’s defense unsuccessfully moved to suppress the evidence from the controlled marijuana buy and search, which would have prevented it from being shown during trial.

The court determined the search warrant was valid, but found the recording authorization was in violation of the Privacy Act. The court suppressed all evidence related to the controlled buy. The state amended the information to omit the delivery charge and Sandberg was convicted by a jury on the two remaining charges.

In his appeal Sandberg challenged the court’s decision that the granted search warrant was issued with probable cause. During a cross appeal, the State challenged the court’s suppression of the evidence from the controlled buy as a violation of the Privacy Act.

The appeals court’s decision notes that probable cause to issue a warrant is established if the supporting affidavit sets “facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity.” They state that Sandberg admitted the affidavit established he was “probably” involved in a marijuana grow operation.

“He (Sandberg) points out that the 2011 medical marijuana law legalized certain grow operations. He argues that because the affidavit lacked any information that would indicate the grow operation did not comply with the medical marijuana law, it did not establish that he was involved in criminal activity,” reads the decision.

A 2015 Washington Supreme Court decision determined the 2011 medical marijuana law created an “affirmative” defense to the crime of manufacturing marijuana. Because the affirmative defense is in essence an excuse for admitting criminal conduct, the possibility of criminal conduct existing doesn’t deny the likelihood of criminal conduct. The appeals court ruled probable cause existed to issue the search warrant and the court made the right decision to decline the suppression of the seized evidence.

Regarding the state’s challenging of the court’s suppression of the evidence from the controlled buy, the appeals court determined the issue is “moot.” They note the state amended the information in the case to exclude the delivery charge. Because the state wasn’t appealing a court ruling that would lead to the restoration of the delivery charge, and because the convictions were upheld, the decision concludes there are no remaining charges to be tried.

“Consequently, there is no effective relief available were the state to prevail on this issue, rendering it moot,” reads the decision. “In any event, the state’s cross-appeal is not well received. First, the state argues that the recorded conversation was not private, and therefore outside the scope of the Privacy Act."

The state asked the appeals court to create a “good faith exception” to the Privacy Act’s exclusionary rule and argued that when police obtain a court ordered authorization in good faith, witnesses should then be allowed to testify on the recorded conversation, even if the authorization is later declared to be baseless. The appeals court rules that the exception would be in contradiction of a Washington Supreme Court decision in 1990.

Richard Byrd can be reached via email at city@columbiabasinherald.com.