Pubdate: Tue, 06 Aug 2013
Source: Chico Enterprise-Record (CA)
Copyright: 2013 Eureka Times-Standard
Contact:  http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Note: Letters from newspaper's circulation area receive publishing priority
Author: Thadeus Greenson, Eureka Times-Standard

COURT RULING GIVES OFFICERS POWER TO DECIDE IF GROW IS MEDICAL OR COMMERCIAL

If a police officer in the field thinks a marijuana grow falls beyond 
what medical laws provide, they can tear up your garden and destroy 
your plants.

And, even if the officers were wrong, growers can't expect to be 
compensated for the uprooted crop.

A California appellate court decision published recently affirmed a 
Humboldt County Superior Court judge's ruling and essentially says 
that officers can use their discretion in determining if there is 
probable cause to believe a grow falls outside the bounds of state 
medical marijuana laws.

If they do suspect a grow or a possessed amount of processed 
marijuana is illegal, the officers can destroy it, the court found.

While some say the case gives officers more discretion in the field 
and clarifies what they can take into consideration when determining 
if they suspect a growing operation to be illegal, others say the 
case of Roscoe Littlefield was so egregious the court's ruling won't 
have much of an impact on possession and cultivation cases that 
really do fall in the gray area of state marijuana law.

The case takes root in 2008 when, in a remote area of Humboldt 
County, Roscoe Littlefield, three of his family members and a man by 
the name of Jeffrey Libertini were growing about 200 marijuana plants 
at two garden sites on their property.

The gardens had four medical marijuana recommendations posted, three 
of which were in the names of members of the Littlefield family and 
allowed the usage of up to two ounces of marijuana a day to relieve 
"a specified degenerative joint disease," lower back pain and anxiety.

When the Humboldt County Sheriff's Office busted the grow in 
September of that year, they reported finding the plants "heavily 
laden with buds." Deputies estimated that the plants - each of which 
had a diameter of more than six feet, with a combined canopy area of 
almost 6,000 square feet - would yield a harvest of about 1,500 pounds.

Deputies consulted with Lt. Wayne Hanson, who oversaw the operation 
that day, and he gave the go-ahead to cut the garden down.

According to the ruling, Hanson based his decision on not only the 
size of the growing operation - which was far beyond what county 
guidelines allowed - but also the fact it appeared to surpass even 
the massive amount allowed under the posted recommendations and that 
officers found a loaded rifle with a 50-round "banana clip" at the property.

Under Hanson's direction, deputies photographed the marijuana, took a 
10-pound sample and five random subsamples. The rest of the marijuana 
was destroyed.

When no arrests or criminal charges followed the raid, the 
Littlefields sued the county for damages, seeking between $683,724 
and $1.3 million for pain and suffering and the replacement value of 
their destroyed marijuana.

Humboldt County Superior Court Judge Christopher Wilson heard the 
case and found the central question to be "whether the officers 
engaged in the marijuana eradication operation possessed, at the time 
the marijuana here was seized, facts as would lead a man of ordinary 
caution or prudence to believe, and conscientiously entertain a 
strong suspicion of the guilt of the accused."

Wilson also rejected the Littlefields' contention that simply showing 
a medical marijuana recommendation immunizes a grower from having 
their plants seized, noting that state medical marijuana laws 
essentially just provide an affirmative defense - meaning it gives 
qualified patients a defense, but doesn't protect them from seizures 
or even prosecutions if they are suspected of breaking the law.

Wilson threw out the Littlefields' case, and they filed an appeal.

The appellant court's ruling sides with Wilson, and seems to go a 
step further in outlining exactly what factors officers can use to 
determine if there's probable cause to believe a marijuana 
cultivation operation is beyond the scope of medical laws.

Specifically, the court found that officers can consider the presence 
of firearms at the grow, the size of the grow and the nature of 
patient recommendations posted at the site when deciding whether they 
think a grow may be illegal.

In the case of the Littlefields, the court found the size of the grow 
compared to county guidelines, the presence of the rifle, the fact 
all the patient recommendations at the site were given by the same 
doctor for similar ailments and the large quantity prescribed were 
all factors that would lead a reasonable officer to conclude the grow 
was illegal.

Reached Wednesday, Hanson said he's glad the court affirmed the 
decision he made in the field that day but said he isn't surprised, 
noting that he felt there was little gray area in the Littlefield case.

Even if you assume the doctor's recommendations were valid, Hanson 
said that would have allowed for a maximum 45.6 pounds of marijuana 
to supply each of the patients for a year, for a combined total 
weight of about 273 pounds. The approximate weight of the marijuana 
destroyed was 1,500 pounds - more than five times what was prescribed.

But the recommendations themselves were highly suspect, Hanson said, 
adding that two ounces of marijuana a day is the equivalent of more 
than 100 average-sized marijuana cigarettes a day.

"People like the Littlefields are using Proposition 215 as a shield 
to cultivate marijuana for sale and to make large sums of cash," 
Hanson said, adding that the process for destroying seized drugs is 
clearly outlined in section 11479 of the California Health and Safety 
Code. "We're peace officers. Whatever the law is, we follow it."

The California State Sheriff's Association believed the court's 
ruling was important enough that it lobbied the court in a July 17 
letter to publish its ruling to provide "invaluable guidance to law 
enforcement officials concerning the proper standards that they 
should apply" when deciding whether a marijuana garden is compliant 
with state and local medical guidelines.

Eureka attorney William Mitchell, who represented the county in the 
case, said he thinks the Littlefield ruling is important because it 
addresses what criteria officers can use to determine whether they 
think a grow is illegal, and because it clearly states that law 
enforcement agencies cannot be expected to store and preserve growing 
marijuana they confiscate, which the appellate court deemed impractical.

Dale Gieringer, director of the California branch of the National 
Organization for the Reform of Marijuana Laws, said he thinks there's 
little noteworthy about the Littlefield case.

"I really thought it was a pretty clear case - It didn't take a 
genius to figure out these people were sort of beyond reasonable 
medical need," he said, adding that the two-ounces-per-day 
recommendation is five times higher than the biggest number he's even 
seen documented for a medical marijuana patient.

"I'm not terribly alarmed about (the ruling). I don't view it as 
setting a particularly dangerous precedent because it was such a 
clear example (of excess)."
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MAP posted-by: Jay Bergstrom