Pubdate: Sat, 24 Jan 2004
Source: Denver Post (CO)
Copyright: 2004 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author:  Mike McPhee

FEDS TRY TO STOP STATE CHARGE IN MEDICAL POT CASE

The U.S. Attorney's Office on Friday asked a federal judge to dismiss a 
contempt charge against federal agents who seized marijuana from a Colorado 
man who had state permission to smoke it for medical purposes.

The case highlights a clear conflict between state and federal laws.

Attorneys for the federal government argued in a brief filed Friday that 
the agents were following federal law, which treats marijuana as 
contraband. But Colorado law allows authorized medical patients to possess 
up to 2 ounces of loose marijuana and three live plants. Colorado has 
authorized about 300 patients to smoke marijuana.

On Oct. 14, nine members of the GRAMNET drug task force entered the tiny 
apartment of Don Nord, 57, of Hayden, armed with a state search warrant to 
confiscate his marijuana.

Eight members of the task force are local law enforcement officers and one, 
Doug Cortinovis, was a Drug Enforcement Administration agent. The state 
officers were deputized DEA agents.

They confiscated six plants, 5 ounces of loose marijuana that Nord said was 
worthless because of its age, a pipe, growing equipment, extension cords 
and Nord's Medical Marijuana Registry card.

A few days later, Nord's attorney, Kristopher Hammond, sent a copy of the 
registration card to Routt County Judge James Garrecht, who had signed the 
search warrant. No charges were filed against Nord, and Garrecht ordered 
that everything be returned, including 2 of the 5 ounces of the loose 
marijuana.

On Dec. 23, the task force officers returned everything but the 2 ounces of 
pot.

A week later, Hammond filed a motion for contempt in Garrecht's court 
against Cortinovis "for failing to follow the Colorado Constitution and a 
judge's orders" for not returning the marijuana.

Determined to defend the task force members, the U.S. Attorney's Office 
stepped in Friday. It asked that the case be removed from state to federal 
court, and that the contempt charge be dropped.

Federal attorneys wrote that "removal ... is proper when either a state 
court civil action or criminal prosecution is brought against a federal 
official, as long as the action for which the official is being questioned 
was undertaken under color of federal office."

Arguing that the contempt charge should be dropped, they wrote: "It is not 
the intent of officers or agents of the U.S. to violate state law in the 
performance of their duties or to ignore orders of state court judges. In 
this instant, regrettably, such violation was mandated by federal law, a 
circumstance that is unfortunate and rare.

"Once GRAMNET members had in their custody contraband as defined by federal 
statute, they were required to follow federal law in the performance of 
their duties. Otherwise, they would have been subject to discipline and 
possibly termination or worse, for dereliction of their duties."

Hammond said he was shocked.

"Just like they stole the marijuana and sent it to the DEA lab, they're 
trying to steal it from the state court and send it to federal court," 
Hammond said. "If they didn't like the judge's order to return the 
marijuana, they should have appealed that order. They didn't and I believe 
that every court has the right to enforce its orders.

"We all have to obey court orders even if we don't like them. Sounds to me 
like they're being a bunch of crybabies."

Jeff Dorschner, spokesman for the U.S. Attorney's Office, said his office 
will vigorously defend the DEA task force officers in this case.
- ---
MAP posted-by: Beth Wehrman