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State of Montana v. William Orville Deshaw

December 11, 2012

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
WILLIAM ORVILLE DESHAW, III, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DC-2011-02 Honorable John C. McKeon, Presiding Judge

The opinion of the court was delivered by: James C. Nelson

December 11 2012

Submitted on Briefs: June 12, 2012

Filed:

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 The District Court for the Seventeenth Judicial District, Blaine County, sentenced Orville William Deshaw, III, to a three-year deferred imposition of sentence upon Deshaw's plea of guilty to the felony offense of Criminal Possession with Intent to Distribute. Deshaw appeals the District Court's Order of Judgment and Sentence. We affirm.

¶2 We address the following issue on appeal: Whether the District Court erred in denying Deshaw's Motion to Suppress and Dismiss.

Factual and Procedural Background

¶3 Sometime during the week of April 19, 2010, Scott and Heather DePriest of Chinook, Montana, reported to Blaine County Undersheriff Pat Pyette that the DePriest's neighbor may be engaged in illegal drug activity. The DePriests reported that the neighboring residence received a large amount of short-term traffic, and that a young girl who resides at the neighboring residence told Scott DePriest (Scott) that she was not allowed to enter the basement of the residence because that is where her father keeps his plants.

¶4 Undersheriff Pyette had known the DePriests for a long time. Because he found the DePriests and their report to be reliable, Undersheriff Pyette referred their report to Tri-Agency Safe Trails Task Force Agent Joe Winfield. After receiving the report, Agent Winfield contacted the Montana Department of Health and Human Services (DPHHS) and verified that Deshaw occupied the residence and that he was a medical marijuana patient. Agent Winfield also learned, however, that Deshaw was not registered as a medical marijuana caregiver.

¶5 Agent Winfield went to Deshaw's residence to conduct an investigation. When Deshaw answered the door, Agent Winfield identified himself as an agent with the drug task force and stated that he understood that Deshaw was a medical marijuana patient and that he was growing marijuana in his basement. Deshaw confirmed this information, and also stated that he had submitted the necessary paperwork to become a medical marijuana caregiver.

¶6 Agent Winfield asked if he could inspect Deshaw's grow operation to ensure that Deshaw was in compliance with the medical marijuana laws. Deshaw allowed Agent Winfield to enter the residence, introduced Agent Winfield to Jennifer, Deshaw's wife, and provided Agent Winfield with a copy of his medical marijuana card. In addition, Jennifer provided Agent Winfield with a copy of her doctor's recommendation for a medical marijuana card, but she stated that she had not yet received her card in the mail.

¶7 Deshaw led Agent Winfield to the basement of the residence where Deshaw had his grow operation. Agent Winfield observed 11 or 12 mature marijuana plants in one room, and approximately 12 adolescent marijuana plants in a plastic bin in another room. He also observed two black trays containing approximately 20 starter marijuana plants.

¶8 Agent Winfield determined that Deshaw was not in compliance with the medical marijuana laws because he was not able to provide proof that he was a medical marijuana caregiver, nor was he able to provide proof of who his patients were. Consequently, Agent Winfield obtained a search warrant for Deshaw's residence.

ΒΆ9 During the course of the search pursuant to the warrant, Agent Winfield seized 23 marijuana plants and approximately two ounces of marijuana, leaving Deshaw with the six marijuana plants and one ounce of marijuana he was legally allowed to possess as a medical marijuana patient cardholder. In addition, Agent Winfield seized two pans of marijuana cookies weighing 673.39 grams, and a pan of marijuana brownies weighing 491.89 grams. Agent Winfield also seized other marijuana products and paraphernalia. Following the search, Agent Winfield again contacted DPHHS and verified that Deshaw had only a current medical ...


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