Pubdate: Sun, 27 Mar 2005
Source: Glenwood Springs Post Independent (CO)
Copyright: 2005 Glenwood Springs Post Independent
Contact:  http://www.postindependent.com/
Details: http://www.mapinc.org/media/821
Author: Donna Gray
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

ATTORNEY ASKS FOR DISMISSAL OF MEDICAL MARIJUANA CASE

A lengthy hearing in 9th District Court in Glenwood Springs could become a 
landmark case in Colorado constitutional law.

Judge James Boyd heard arguments last week for the dismissal of a medical 
marijuana case in which defendant Jennifer Ryan's attorney Kris Hammond 
maintained that the evidence - 131 marijuana plants - were willfully 
destroyed by members of the Two Rivers Drug Enforcement Team in violation 
of the Colorado Constitution.

Members of the task force admitted they destroyed the plants when they 
seized them on the evening of Aug. 2, 2004, at a Rifle residence.

"Law enforcement needs to be sent a message that if a law is on the books 
which changes the way you do business, and they don't bother to find out 
about it ... it's willful ignorance," Hammond said, who asked Boyd to 
dismiss the case.

Colorado's medical marijuana law, Amendment 20, passed by the voters in 
2000, says that any property owned or used in connection with medical 
marijuana cannot be destroyed, but must be held for the defendants and 
returned to them if the outcome of the case is acquittal.

Jennifer Ryan, her husband Gene Brownlee, Brownlee's nephew, Justin 
Brownlee, and Drew Gillespie were arrested Aug. 2 at Ryan's and Gene 
Brownlee's apartment at 545 Park Ave. in Rifle. According to the affidavit 
to obtain a search warrant, the owner of the apartment building gave a 
caretaker at the apartments permission to enter Brownlee and Ryan's 
residence, when the caretaker smelled a chemical odor coming out of a dryer 
vent on the outside of the building. Upon entering the ground floor of the 
apartment, the caretaker saw more than 100 marijuana plants in various 
stages of growth, many of them up to 4 feet high.

Brownlee told investigators he could grow pot legally because he has 
terminal cancer. Ryan said she was a certified caregiver to five people 
using medical marijuana. According to the law, both medical marijuana users 
and their caregivers can possess up to six plants, of which no more than 
three can be in flower, or as many plants as they feel necessary to treat a 
given medical condition.

When TRIDENT officers entered the apartment on Aug. 2, they uprooted the 
plants, placed the smaller ones in evidence bags and the larger plants in a 
large plastic container. They took the larger plants to the South Canyon 
Landfill that night where they were buried.

TRIDENT commander Jeremy Ownbey testified that Ryan told him she was 
certified as a medical marijuana caregiver and was allowed to have as many 
plants as necessary to perform her duties. Hammond asked if Ownbey was 
aware of the medical marijuana law at that time. Ownbey said he was not.

"So your excuse is ignorance of the law?" Hammond asked.

"No, sir, I don't have an excuse," Ownbey said.

Both Ownbey and task force officer Tim Fisher admitted under oath that they 
knew they were in violation of the Colorado Constitution when they 
destroyed the plants.

Hammond also said that destruction of the plants prevents him from counting 
how many plants were actually viable and how many were cuttings in the 
early stages of growth. One leaf was cut from each of the larger plants 
before they were destroyed and were kept as evidence.

Deputy District Attorney Jeff Cheney argued that the court must prove the 
officers acted in bad faith and with "a reckless disregard for the truth," 
in destroying the evidence. "The officers acted in good faith," he said.

In their testimony, TRIDENT officers said they had no place to store the 
plants nor a way to keep them alive, and they destroyed them because they 
posed a potential health hazard if they were stored in the evidence room 
and allowed to rot.

Cheney also said the information Ryan gave about being registered to give 
medical marijuana was "irrelevant. ... We're talking about a marijuana grow 
of over 100 plants."

But Hammond countered, "They knew she had certificates, and they destroyed 
(the marijuana) anyway. ... This is a flagrant violation of Colorado 
Constitution" as well as a violation of the Fourth Amendment of the U.S. 
Constitution, which protects against unlawful search and seizure.

Boyd said he would take the matter under advisement and issue a written 
decision within two weeks.

Ryan pleaded not guilty to the charges of possession with intent to 
distribute marijuana. A jury trial is set to begin June 14.Ryan pleaded not 
guilty to the charges of possession with intent to distribute marijuana. A 
jury trial is set to begin June 14.
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