Pubdate: Fri, 25 Jul 2008
Source: New Times (San Luis Obispo, CA)
Page: Cover story
Copyright: 2008 New Times
Contact:  http://www.newtimesslo.com/
Details: http://www.mapinc.org/media/1277
Author: Kylie Mendonca
Cited: Sheriff Patrick Hedges http://www.slosheriff.org/sheriff.php
Bookmark: http://www.mapinc.org/topic/dispensaries
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

WHY WORRY?

Sheriff Hedges Obtained the Confidential Records of Medical Marijuana 
Users. Could That Be a Problem?

Elaine McKellips vomits three to four times every day. When she sits, 
her legs knock together uncontrollably at the knees, a condition she 
apologizes for offhandedly. McKellips suffers from several chronic, 
debilitating maladies ranging from gastroparesis, which severely 
impedes digestion of even the most benign liquids, to restless leg 
syndrome. Nausea keeps her at home most of the time and when she does 
move it's in labored, deliberate steps with the aid of a cane. She 
employs a caretaker. Despite it all, she said life is better than 
before she started smoking prescription marijuana.

"I was throwing up between 12 and 15 times a day," McKellips said. "I 
could wake up from a nap and it would just hit me, throwing up bile. 
Nothing has to be in my stomach. And so I was confined to my bed, and 
I had a bucket near my bed, and what kind of a life is that? So my 
caregiver read in the paper about the dispensary opening, and about 
medical marijuana, and said maybe I should try it. It worked immediately."

Her frame may be petite and frail but McKellips is capable, and 
matter-of-fact about her circumstances. She is sick and, in 
accordance with California law, wants her medicine. She also wants 
her medical records returned with an apology from Sheriff Patrick 
Hedges, who solicited federal Drug Enforcement Administration agents 
to raid the home of Charles Lynch and his Morro Bay business Central 
Coast Compassionate Caregivers, in March last year.

To lawmakers who backed Proposition 215, and Assembly Bill 420--the 
so-called medical marijuana laws--McKellips is a model candidate for 
"alternative" pain relief; she can't digest the pill Marinol, a 
synthesized version of tetrahydrocannabinol (THC), the active 
compound in marijuana.

To federal prosecutors trying to convict Charles Lynch on five 
charges of distributing, cultivating, and trafficking in marijuana 
from the Morro Bay dispensary, McKellips is a liability.

Prosecutors actually made a formal motion to keep "sick looking" 
people off the stand. It didn't work. McKellips will likely testify 
in Lynch's defense, but she has her own legal battle to wage. On June 
20, she filed a lawsuit against the County of San Luis Obispo, the 
San Luis Obispo Sheriff's Department, and Sheriff Hedges himself, 
seeking unlimited damages for his role in busting the dispensary.

The Origins of Safe Access

"I filed the lawsuit to ensure that other patients in San Luis Obispo 
County have the same rights as patients in other counties," McKellips said.

Although it was a federal agency, the DEA, that raided the 
dispensary, she can't seek redress in federal courts. She claims she 
was denied medicine; but what California recognizes as legitimate 
medicine, the federal government considers nothing more than a fix of 
a dangerous, illegal controlled substance. So McKellips's suit is 
with the state courts against a local agency over an allegedly 
illegal search and seizure of medical records that was never 
warranted by the state.

She claims invasion of privacy and HIPAA (Health Insurance 
Portability and Accountability Act) violations. HIPAA is a federal 
patient privacy law. She also alleges violations of due process and 
alleges the raids violated equal protection statutes, arguing that 
the sheriff selectively enforced the law by choosing to ignore 
Proposition 215. McKellips is seeking compensation for the alleged 
privacy violations, as well as the time she spent without medical 
marijuana. She is also calling on the county to investigate whether 
the sheriff improperly used public funds for the investigation or the raid.

Since Proposition 215 was passed in 1996, (followed by Assembly Bill 
420, which was designed to fill in legal gaps left by 215) 11 states 
have legalized the use of marijuana for certain medical relief. But 
federally, marijuana remains a prohibited Schedule 1 drug. That 
classification doesn't recognize any medical benefits of the plant, 
and puts it in the same category as cocaine.

Between 2005 and 2007, there were about 60 DEA raids in California 
and about as many convictions in federal courts. Although most 
prosecuted dispensary owners forgo jury trials and take pleas, the 
raids, the investigations, and the court time cost tax payers dearly. 
Americans for Safe Access, a medical marijuana advocacy group, 
estimates that between 2005 and 2007 the DEA spent more than $10 
million on dispensary raids in California alone. That doesn't take 
into account the cost of investigations leading up to the busts.

Prosecuting these cases federally is like shooting fish in a bucket. 
There are receipts, client lists, and tax documents that show how 
much marijuana was sold, and to whom. And unlike most drug busts, the 
contraband is clearly labeled, packaged, and conveniently stored in 
one not-so-secret location. In federal court, Lynch's status as a 
provider of medicine can not be considered. His patient lists and 
transaction receipts will be viewed as a roster of illicit drug users 
and records of deals.

It's a states' rights issue that has taken center stage with several 
bills in Congress aimed at clearly defining the jurisdictions of 
state and federal law enforcement. They would bar the DEA from 
raiding state-sanctioned dispensaries, or prevent local agencies from 
participating in such DEA raids. So far Congress has passed none, but 
San Francisco and other cities have resolved that cops must adhere to 
state law. However, DEA raids on legalized medical marijuana 
dispensaries are increasing.

On April 29, Chairman of the House Judiciary Committee John Conyers 
sent a public letter to acting DEA Administrator Michele Leonhart 
criticizing a perceived increase in the agency's "paramilitary-style 
enforcement raids." Conyers openly questioned the DEA's use of 
resources for raids on people and their caregivers who are conducting 
themselves legally under California law.

With the lawsuit, McKellips claims that Hedges, as a locally elected 
law-enforcement agent, should never have been involved in enforcing 
the federal law in contradiction of state law. Furthermore, because 
he never secured a state warrant, he should never have been given 
access to evidence, which includes patients' names, addresses, and 
phone numbers, and perhaps other personal medical information.

In short, Hedges had access to a Rolodex of marijuana users in the 
county, and that prospect has many patients worried that he won't 
respect their rights under Proposition 215. Earlier this year, Hedges 
refused to return a patient's illegally confiscated marijuana until 
faced with a court order. That patient was Craig Steffens, a retired 
aircraft mechanic and veteran, who is known locally for his advocacy 
of medical marijuana and hemp. Sheriff's spokesman Rob Bryn said 
Hedges previously was concerned that releasing the marijuana could 
violate federal law and had been waiting to see if the California 
Supreme Court would take up an appeal of a related case. It didn't.

McKellips is angry that her privacy has already been violated, but 
worries more that it will continue to be violated.

"I'm asking for punitive damages," McKellips said, "because I feel 
like they have those records, and they're just investigating 
everybody, when they don't really have a right to. They raided 
Charles Lynch, not me. Why are my records in the hands of the sheriff?"

McKellips is not the only one who's worried. Steffens, who was a 
member and grower for Compassionate Caregivers, said it's not a 
question of if or when Hedges will use personal information to go 
after patients. Steffens believes he already has.

"He already used his power to investigate the dispensary without any 
probable cause," Steffens said. "He started investigating as soon as 
they opened in Atascadero. I believe he has an agenda, he is doing 
everything he can to go after patients, and people who provide care 
for patients."

Steffens expects to join McKellips's lawsuit.

The Year of the Stakeout

For local enforcement agencies to be involved in a raid or an 
investigation is not unheard of, according to Americans for Safe 
Access spokesman Kris Hermes. But several factors make the raid of 
Compassionate Caregivers egregious, in his eyes.

For example, Hermes said, federal law enforcement agencies have been 
called to participate in raids when local officials have not 
sanctioned dispensaries. That was the case in Kern County, where 
several dispensaries were investigated and raided with the help of 
local officials. Compassionate Caregivers, however, was welcomed to 
Morro Bay. Mayor Janice Peters was at the ribbon-cutting ceremony, 
and Lynch was a member of the Morro Bay Chamber of Commerce. Besides, 
Morro Bay has a police department, and they were strictly instructed 
to enforce state law, Peters said in an interview.

Hedges also conducted a yearlong investigation before the feds were 
ever called. During that time he spent thousands of dollars on 
marijuana and prescriptions alone and, according to the investigation 
report that the DEA compiled to obtain a warrant, officers from the 
sheriff's department went to Los Angeles County twice, running 
surveillance while their informants got prescriptions from a 
seemingly questionable source. This "doctor," who is also being 
charged with Lynch, allegedly smoked pot with informants at these appointments.

During the year Compassionate Caregivers was open, there was never a 
time when McKellips visited that she didn't see a surveillance truck, 
but she never felt threatened, because she believed she was operating 
within the law.

"It was so obvious," McKellips said, "the undercover police that were 
surveying it. I knew what car they had. I knew where they parked. I 
saw them watch me, I saw them making notes, so the minute I went in, 
the first time I went, I knew I was being watched, but that's 
different than them having my medical records."

The investigation report indicates that they were present almost 
daily, taking down license plate numbers, and taking note of what 
went in and what came out. The cost of the year-long investigation is 
unknown, but Hedges was apparently unable to produce probable cause 
to justify a state search warrant and therefore turned to the DEA. To 
date, one Compassionate Caregivers' employee, Abram Baxter, was 
arrested on suspicion of selling marijuana to undercover officers 
outside the dispensary. Even that case was unusual. Baxter plead 
guilty and was ready to move on with his life, only to find that his 
file was confused with that of another man, whose last name was also 
Baxter. Abram is still waiting to be retried and sentenced all over again.

To date, there have been no charges whatsoever at the local level 
against either Lynch or the dispensary.

Had neighbors complained, Hermes said, that could have led to an 
investigation by a local agency, but they would probably call the 
Morro Bay police, not the sheriff. Mayor Peters said that she 
personally met with every business owner in the immediate vicinity of 
the dispensary and gave them her card, with an invitation to call her 
if they had any problems. No one called, she said.

March 29, 2007: The Raid

On March 29, 2007 Sheriffs' officials, with the DEA, raided Central 
Coat Compassionate Caregivers at 780 Monterey St. in Morro Bay. TV 
news crews milled around outside the building for hours, with the 
dense Morro Bay fog surrounding them, just waiting to get a shot of 
the confiscated goods. Then-spokesman Brian Hascall, of the Sheriff's 
Department, gingerly flittered between news crews, defending the 
sheriff's role within the Morro Bay city limits by noting that, 
before the dispensary began business bayside, it operated briefly in 
Atascadero. That city was less than hospitable and Lynch moved the 
business after about a month, but the sheriff had already started an 
investigation. Hascall explained at that time that the relocation 
made Compassionate Caregivers a county issue.

Hours after the news crews arrived, the spoils of the raid were 
finally hauled out in shopping bags and plastic boxes, labeled with 
marijuana names such as "Diesel" and stacked on the sidewalk for a 
photo-op. The raiders also loaded seized computers, credit card 
processing machines, telephones, answering machines, prescriptions, 
and stacks of paper. Local deputies, many of them members of the 
county's elite Narcotics Task Force, were present in numbers equal to 
or greater than those of federal agents. Baxter was arrested that 
day, and though Hascall would not then release any details of the 
investigation, citing the sealed federal warrant, everything would 
become crystal clear, he said, when the indictments were announced.

During the discovery phase of Lynch's case, the details of the 
investigation did indeed come to light.

For example, when Lynch's home was raided the same day, Lynch was 
naked and held at gunpoint while the DEA searched the home for 
weapons. According to the affidavit--a sworn statement that leads to 
a warrant--federal agents take into account certain behaviors of 
dispensary owners, such as a tendency to keep cash on hand and 
whether they have armed guards at the dispensary (Lynch did not keep 
an armed guard). About $30,000 was found at Lynch's home, which was 
seized with the rest of his assets. Otherwise, the affidavit cites 
information that is more appropriate for the fall of a major drug 
cartel: "Drug dealers commonly have in their possession ... firearms, 
including handguns, pistols, revolvers, rifles, shotguns ..." Lynch 
had none. He had several guitars, and a piano, on which "Chopsticks" 
was played by one of the agents, according to Lynch's sworn statement.

McKellips's case is based on details from the discovery phase of 
Lynch's case. Until discovery, the extent of Hedges' investigation 
was unknown. And, according to McKellips's suit, Hedges not only went 
over the heads of the Morro Bay Police Department, but circumvented 
the district attorney and all other county officials in seeking help 
from the DEA. The result, according to the suit, was a quid pro quo 
arrangement in which Hedges received access to seized information in 
exchange for inviting the feds.

According to court documents, Hedges took possession of evidence, 
including medical records, in early April, less than two weeks after 
it was seized. It's unknown how long the sheriff actually had 
possession of sensitive documents.

Bryn said that he could not speak to any case details, because he and 
several other deputies from the Sheriff's Department have been 
subpoenaed to testify in Lynch's case. But he said, wherever the 
records were being stored previously doesn't matter, because they're 
all in Los Angeles now, ready as evidence for the trial.

After the Raid

It was unclear immediately after the raid weather the dispensary 
would re-open. May patients held their breath, some sought marijuana 
from less wholesome sources. McKellips waited, and her nausea 
returned with punishing ferocity. She said she was bedridden, 
throwing up 12 or more times a day, but she was afraid of buying 
marijuana illegally. McKellips gets her medicine from the Santa 
Barbara dispensary now, which is more than an hour away and more 
expensive than was Compassionate Caregivers, she noted.

Before the raid, McKellips said that she knew Lynch on a purely 
professional level, and she never imagined the acquaintance would 
become any more than that. Lynch is facing prison time. He's confined 
to his home; his assets, including money, cars, and his house, have 
been all been seized. And McKellips worries about him: "After the 
raid I got to know him a little bit personally, enough to talk on the 
phone; right now I try to call him at least once a week to make sure 
that he's hanging in there."

Addendum

Two of the federal charges Lynch is facing are related to selling 
marijuana to minors younger than 21 years old. One such minor was a 
17-year-old amputee with bone cancer, whose parents were buying the 
prescription for him.

Regarding patients' fears of prosecution that may stem from seized 
confidential records, the American College of Physicians (ACP) is 
unequivocal, "ACP strongly urges protection from criminal or civil 
penalties for patients who use medical marijuana as permitted under 
state laws." The ACP is composed of 126,000 members, including 
internists, medical students, residents, and fellows. 
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MAP posted-by: Richard Lake