¶12 (concurring) — I agree with Justice Sanders’ dissenting opinion in State v. Fry, 168 Wn.2d 1,20, 228 P.3d 1 (2010). One’s growing of marijuana should not support probable cause to search one’s property when one possesses authorization to grow the plant for medicinal purposes.
¶13 RCW 69.51A.040 now reads, “The medical use of cannabis . . . does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions . ...” Nor may the medicinal user or provider have his or her “real or personal property seized or forfeited,” provided the user or provider complies with all other provisions of the medical marijuana law. RCW 69.51A.040. Here, when Deputy Mark Benner approached Daniel Ellis’ home, Ellis was absent and could not present Deputy Benner authorization papers. But the deputy, before seeking a warrant, could have investigated the legality of Ellis’ growing marijuana. Benner could have returned to the home later and asked Ellis to show his authorization to grow.
¶14 In 1998, the voters of Washington approved Initiative 692, the Washington State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW. The people found that “humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician’s professional medical *809judgment and discretion.” MUCA, Laws of 1999, ch. 2, §§ 1-2 (now codified as amended at RCW 69.51A.005). For patients to smoke marijuana, someone must grow the plant.
¶15 Washington medicinal marijuana law reflects the un-American principle that the innocent user or grower carries the burden of establishing his or her guiltlessness. In Fry, the court recognized that authorization to grow marijuana is “[a]n affirmative defense [that] admits the defendant committed a criminal act but pleads an excuse for doing so.” 168 Wn.2d at 7. The accused may present authorization as a defense only after being “ ‘charged with a violation.’ ” Id. at 9 (quoting former RCW 69.51A.040(1) (1999)). Because authorization to grow medicinal marijuana does not negate probable cause, law enforcement may treat a medical marijuana grower or user as a criminal suspect through searches of his or her property, despite the grower or user not being guilty of a crime. Id. at 6. Thus, under the current state of the law, law enforcement could search a medicinal grower’s property every day and impose on the grower the burden of proving his or her innocence in trial after trial. Humanitarian compassion takes a backseat.
¶16 MUCA has not changed to the benefit of Daniel Ellis since the Fry decision. In 2011, the state legislature adopted a comprehensive amendment to the law that, among other things, provided for licensing of marijuana producers with the Department of Agriculture and required a law enforcement officer to ascertain whether the person or location under investigation was registered with the department before obtaining a search warrant. S.B. 5073, § 902(1), 62d Leg., Reg. Sess. (Wash. 2011). But Governor Christine Gregoire vetoed section 902 of the bill, based on a justifiable concern that state employees might be prosecuted under federal law for aiding in the production of a controlled substance. Veto Message on Engrossed Second Substitute S.B. 5073, from Governor Gregoire to the President and Members of the Senate (Apr. 29, 2011), reprinted *810in Laws of 2011, at 1374-76. Washington Initiative 502, Laws of 2013, ch. 3 (codified in chapters 46.04, 46.20, 46.61, and 69.50 RCW), may temper, but it will not erase the discordant provisions of the State’s medical marijuana law. MUCA will continue to exist aside the limited legalization of marijuana because MUCA’s provisions target exclusively medicinal, not recreational, users. See Vitaliy Mkrtchyan, Note, Initiative 692, Now and Then: The Past, Present, and Future of Medical Marijuana in Washington State, 47 Gonz. L. Rev. 839, 873 (2012).
¶17 As a member of the Court of Appeals, I defer to the decisions of the state Supreme Court. Although I disagree with the majority in Fry, Fry provides the answer to the question of whether the warrant to search Daniel Ellis’ home was based on probable cause and answers the question in the affirmative. Therefore, I must concur in our majority’s affirmation of Daniel Ellis’ conviction for an unrelated crime.
Siddoway, A.C.J., concurs with Fearing, J.Review denied at 180 Wn.2d 1020 (2014).