State v. Tagge

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ELENA CHRISTINA TAGGE, Appellant.
_________________________________
STATE OF ARIZONA, Appellee,

v.

MATTHEW CARL TAGGE, Appellant.

No. 1 CA-CR 16-0759
1 CA-CR 16-0785
FILED 5-9-2019

Appeal from the Superior Court in Maricopa County
No. CR2015-113021-001
CR2015-030181-001
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant Elena Tagge

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant Matthew Tagge

OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen joined. Judge Peter B. Swann specially
concurred.

C A T T A N I, Judge:

¶1 Matthew and Elena Tagge appeal their convictions for illegal
possession or use of marijuana and drug paraphernalia. The Tagges
maintain that, because they held cards entitling them to possess and use
marijuana under the Arizona Medical Marijuana Act (“AMMA”), they were
immune from prosecution. We hold to the contrary that, because immunity
under the AMMA does not extend to smoking marijuana in a public place,
the Tagges could be prosecuted for doing so in their car in a public parking
lot. Accordingly, and for reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The facts are undisputed. Bound for a music festival in Mesa
one afternoon, the Tagges parked in a commercial lot near the concert
venue. The lot was owned by the City of Mesa and had been leased to a
radio station for parking for the event. The Tagges pulled up next to two
undercover Mesa police officers, who watched as the Tagges sat in their car
and smoked marijuana from a pipe they passed between them. Although
the windows of the Tagges’ car were up, police saw smoke coming from the
pipe, ordered them out of the car and seized the pipe, along with
approximately one gram of marijuana.

¶3 Each of the Tagges was a “qualifying patient” under the
AMMA. See Ariz. Rev. Stat. (“A.R.S.”) §§ 36-2801(13), -2811. At trial, they
argued that they were immune from prosecution under § 36-2811, which
generally immunizes AMMA cardholders’ marijuana use, subject to several

2
 STATE v. TAGGE
Opinion of the Court

exceptions, including one at issue in this case: smoking in a public place.
See A.R.S. § 36-2802(C)(2). The superior court rejected the Tagges’
argument, finding that although they were inside a closed car, they were in
a public place and were not entitled to immunity. After a bench trial, the
court convicted them of misdemeanor marijuana and paraphernalia
offenses and imposed six months’ unsupervised probation. The Tagges
each filed a timely appeal.

DISCUSSION

¶4 By law, the State may not subject a qualifying patient to arrest
or prosecution for “use of marijuana pursuant to [the AMMA].” A.R.S. §
36-2811(B)(1). This protection “broadly immunizes qualified patients,
carving out only narrow exceptions from its otherwise sweeping grant of
immunity.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 8 (2015). Among
the exceptions: A qualifying patient may not possess or use marijuana “[o]n
a school bus,” “[o]n the grounds of any preschool or primary or secondary
school,” or “[i]n any correctional facility.” A.R.S. § 36-2802(B). And a
qualifying patient may not smoke marijuana “[o]n any form of public
transportation” or “[i]n any public place.” A.R.S. § 36-2802(C). The
dispositive issue here is whether the “public place” exception to immunity
applies to smoking inside a private vehicle in a public parking lot.

¶5 This court reviews questions of statutory interpretation de
novo. Reed-Kaliher, 237 Ariz. at 122, ¶ 6. In interpreting statutes, we give
special care “to give effect to every clause and word.” Premier Physicians
Grp., PLLC v. Navarro, 240 Ariz. 193, 196, ¶ 16 (2016). “[W]e look to the
statute as a whole, and construe together all parts of the statute relating to
the same subject.” Ariz. Health Care Cost Containment Sys. v. Bentley, 187
Ariz. 229, 232 (App. 1996); see J.D. v. Hegyi, 236 Ariz. 39, 41, ¶ 6 (2014)
(“Words in statutes . . . cannot be read in isolation from the context in which
they are used.”). When a term in a statute may have differing meanings,
we “consider[] secondary factors, such as the statute’s context, subject
matter, historical background, effects and consequences, and spirit and
purpose.” Premier Physicians, 240 Ariz. at 195, ¶ 9.

¶6 The Tagges first argue that the parking lot itself was not a
public place within the meaning of the AMMA. They urge us to adopt the
limited definition of “public place” found in the Smoke-Free Arizona Act
(“SFAA”), which includes only an “enclosed area to which the public is
invited or in which the public is permitted.” A.R.S. § 36-601.01(A)(9)
(emphasis added). The Tagges assert that because both the SFAA and the
AMMA appear in Title 36 of the Arizona Revised Statutes, we must read

3
 STATE v. TAGGE
Opinion of the Court

the two in pari materia so that the SFAA’s definition of “public place” would
apply to every use of the phrase in Title 36.

¶7 The Tagges’ argument is unavailing because the SFAA
expressly applies only to tobacco products, not marijuana. See A.R.S. § 36-
601.01(A)(11) (defining “[s]moking” by reference to “any lighted tobacco
product”). The AMMA drafters could have expressly incorporated the
public place definition from the SFAA, but they did not do so. That the two
statutes are in the same title is insufficient to warrant application of the
SFAA’s definition to the AMMA given the distinct subject matters and the
different purposes of the two acts. See Moreno v. Jones, 213 Ariz. 94, 99, ¶ 28
(2006) (in pari materia statutes “relate to the same subject or have the same
general purpose”) (citation omitted). Accordingly, we hold that a public
place under the AMMA is not limited to enclosed areas. Instead, a public
place is simply “a place open to or frequented by the general public,” see
State v. Whitaker, 164 Ariz. 359, 362 (App. 1990), and the city-owned parking
lot in this case meets that definition. See Florida v. White, 526 U.S. 559, 566
(1999) (employer’s parking lot is a “public area” for purposes of a Fourth
Amendment challenge); People v. Strider, 177 Cal. App. 4th 1393, 1402 (2009)
(parking lot is a “public place” under statute criminalizing carrying loaded
firearm in a public place); Dornbusch v. State, 262 S.W.3d 432, 437 (Tex. Ct.
App. 2008) (parking lot is akin to public roadway in interpreting “public
place” element of driving-under-influence statute).1

¶8 The Tagges counter that the parking lot was not a public place
within the meaning of the statute because, although municipally owned,
the lot was leased to a radio station, which in turn charged concert-goers to
park there. The Tagges do not cite and we are unaware of any authority for
the proposition that a fee requirement for entering or using a space that
otherwise is open to everyone renders a parking lot a non-public place, and
we hold that the parking lot in this case was a public place for purposes of
the AMMA.

¶9 The Tagges also argue that, even if the parking lot were
considered to be a public place, they nevertheless were not subject to
prosecution because they did not smoke marijuana in the open, but instead

1 We note that the Department of Health Services issued regulations
defining “public place” under the AMMA to include “parking lots.” Ariz.
Admin. Code R9-17-101(24)(xiv). The superior court in this case, however,
ruled that the department lacked authority to issue the regulation and held
it invalid. The State did not cross-appeal from that ruling, see A.R.S. § 13-
4032(3), and does not argue that the regulation bears on this appeal.

4
 STATE v. TAGGE
Opinion of the Court

did so inside a closed private vehicle. But the interior of a vehicle is not a
separate place distinct from the location in which the vehicle is found. The
expedient of being enclosed in a vehicle parked in a public place does not,
without more, remove a person from the public place. Criminal trespass,
for example, is not decriminalized if a trespasser’s unauthorized presence
on a property is inside a vehicle. Simply put, a location—including a public
place—does not change its character when a person is present in a vehicle,
rather than on foot.

¶10 Although this is a case of first impression in Arizona, our
conclusion that immunity under the AMMA does not extend to smoking in
a private vehicle in a public parking lot is consistent with that reached by
the Michigan Court of Appeals in People v. Carlton, 880 N.W.2d 803 (Mich.
Ct. App. 2015). Construing a similarly worded medical-marijuana statute,
the Michigan court concluded that a qualifying patient cited for smoking in
his car in a casino parking lot was not immune from prosecution. Id. at 805–
08. Noting that the statute withdrew immunity for smoking in “any public
place” (but did not condition immunity on whether the act was done “in
public”), the court held that immunity from prosecution for smoking
marijuana does not extend “to [qualifying patients] who smoke medical
marijuana in a parking lot that is open to use by the general public, even
when smoking inside a privately owned vehicle, and even if the person’s
smoking is not directly detectable by the members of the general public.”
Id. at 807–10. Although the court acknowledged that the interior of a
privately owned car can be private, it ultimately rejected the notion that a
vehicle’s interior could be a “place” whose public or private character
would determine immunity under the statute. Id. at 809–10.

¶11 Like the Michigan court in Carlton, we acknowledge that, in
general, motorists in private vehicles enjoy privacy interests entitled to
constitutional protection. See id.; see also Arizona v. Gant, 556 U.S. 332, 345
(2009). But we agree with the Michigan court that applicability of the
“public place” exception in the statute hinges on the character of the place,
not on whether the qualifying patient takes steps to conceal the act or limit
its effect on others within that place.

¶12 The Tagges alternatively argue that our statutory analysis
ignores a separate prong of § 36-2802(C), which withdraws immunity for
smoking marijuana “[o]n any form of public transportation.” In their view,
the statute’s express withdrawal of immunity for smoking on public
transportation implicitly preserves immunity for smoking inside private
transportation. The Tagges suggest that, if a patient’s immunity when
smoking marijuana in a means of private transportation hinges on the

5
 STATE v. TAGGE
Opinion of the Court

location of the means of private transportation, the statute’s separate
reference to “public transportation” would be redundant because “any
form of public transportation” necessarily will be located in a “public
place,” i.e., a roadway, railway, bus station, or parking lot.

¶13 We disagree that our interpretation of the statute renders the
“public place” and “public transportation” provisions redundant. The
statute withdraws immunity for smoking in any public place, as well as for
smoking on any form of public transportation (without regard to whether
the public transportation is in a public or private place). Although public
transportation vehicles usually travel in public places, they sometimes
venture into otherwise non-public spaces. For example, a public bus may
transport people over private property. Similarly, a bus may be parked in
a restricted area of a bus depot or may undergo mechanical work in a
private garage. In any of these scenarios, under the express language of the
statute, smoking marijuana is not permitted on the bus, even though it is
located in a non-public place. Thus, although the “public place” and
“public transportation” restrictions overlap to a significant extent, it is not
necessary to read the “public transportation” provision as an implicit
exclusion of “private transportation” to give it meaning.

¶14 Furthermore, accepting the Tagges’ view that the statute
implicitly allows smoking in any form of private transportation would lead
to anomalous results. Such an interpretation would allow an individual to
smoke marijuana in the open, for example in a public park, by the simple
expedient of perching on a motorcycle or some other form of private
transportation. To avoid this absurd result, the court would presumably
have to write in a windows-up requirement in addition to finding an
implicit private-vehicle exception, all based on the statute’s reference to
public transportation. We decline to judicially amend the AMMA to reach
so far beyond the text of the statute, and we conclude that the public
transportation and public place restrictions in the AMMA are
complementary and not impermissibly redundant.

CONCLUSION

¶15 The Tagges, even though qualifying patients under the
AMMA, lost their immunity from prosecution for marijuana and
paraphernalia-related offenses because they were smoking marijuana in a
public place. Although the Tagges could have consumed marijuana in the
same location by other means, they ceded their immunity by smoking
marijuana in a public place. We thus affirm their convictions.

6
 STATE v. TAGGE
Swann, J., Specially Concurring

S W A N N, Judge, specially concurring:

¶16 I agree with the majority opinion, but I write separately to
note that it should not be overread. The determining factor in this appeal
is the question whether the Tagges smoked marijuana in a “public place.”
Though a person’s mere presence in a vehicle is not by itself sufficient to
remove him or her from the public place in which the vehicle is located, the
fact that a person is in a mobile enclosure does not necessarily mean the
person is in a “public place.”

¶17 Our holding in this case does not extend, for example, to a
patient who is in a traditionally private place, such as the closed bedroom
of a mobile home lawfully parked in a public lot. The appropriate inquiry
centers on the reasonable expectation of privacy that a patient has in the
location where the smoking takes place—the greater the expectation of
privacy, the less “public” the place. And though I agree that the exposed
passenger compartment of a car does not carry with it a reasonable
expectation of privacy when smoking marijuana, other circumstances
involving a different type of vehicle located in a public place might dictate
a different result.

AMY M. WOOD • Clerk of the Court
FILED: AA

7