from the Superior Court in Maricopa County, No.
CR2015-113021-001, CR2015-030181-001, The Honorable Michael
D. Gordon, Judge. AFFIRMED
Arizona Attorney Generals Office, Phoenix, By Terry M.
Crist, III, Counsel for Appellee
Lauritano, PLC, Glendale, By Sheri M. Lauritano, Counsel for
Appellant Elena Tagge
Maricopa County Public Defenders Office, Phoenix, By
Nicholaus Podsiadlik, Counsel for Appellant Matthew Tagge
Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen joined. Judge Peter B. Swann
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
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.
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
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.
By law, the State may not subject a qualifying patient to
arrest or prosecution ...