Pubdate: Sat, 09 Nov 2013
Source: Ukiah Daily Journal, The (CA)
Copyright: 2013 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581
Author: Tiffany Revelle

MENDOCINO COUNTY MEDPOT RULING MAY SET NEW PRECEDENT

Evidence of Meth Thrown Out

In what could be a significant ruling for medical marijuana defense, 
a Mendocino County Superior Court judge on Friday granted a motion to 
throw out evidence from a vehicle search done because the driver 
admitted to having the drug and a county-issued card identifying him 
as a medical marijuana patient.

Judge Ann Moorman ruled in favor of Mendocino County Deputy Public 
Defender Eric Rennert's motion to suppress the evidence used to 
charge his client, Kevin R. Hawkins, 55, of Cloverdale, with 
possessing methamphetamine when a Ukiah Police Department officer 
pulled Hawkins over on South State Street and searched his vehicle.

The officer had no reason to believe the search would turn up 
evidence of a crime, so proper grounds hadn't been established for 
the search, Moorman ruled.

"The question is, does admission of the presence of marijuana alone, 
with a valid recommendation, provide law enforcement with probable 
cause to search," Rennert said.

The ruling is significant, he said, because no case law currently 
exists regarding that question.

Hawkins was pulled over by a UPD officer at 3:50 a.m. April 18 for a 
traffic violation and produced a valid driver's license, registration 
and proof of insurance, according to Rennert. While the officer was 
checking the documents, he asked Hawkins "if he had anything illegal 
in his vehicle," according to the officer's testimony, quoted in 
Moorman's ruling.

"The officer testified that he had not seen any contraband or other 
evidence of illegality to explain the inquiry," according to 
Moorman's order to grant the defense's motion. "The officer also 
testified that he did not smell anything such as an odor of marijuana."

The smell of marijuana from inside a vehicle is enough to establish 
probable cause for a search, Moorman asserts in her ruling, citing a 
2007 case where the state Court of Appeal ruled that an officer had 
probable cause to search a vehicle after smelling the drug, seeing a 
second bag in the car after the driver showed him one containing a 
small amount, and believing the driver would drive away after having 
smoked marijuana.

Hawkins told the officer who stopped him that he had less than an 
ounce of marijuana in the car with him, and showed him a Proposition 
215 card (Compassionate Use Act of 1996) issued by the county of Mendocino.

The officer told Hawkins "that the practice had changed in that the 
County no longer issued such cards," according to the ruling, to 
which Hawkins said he got the card in 2000 from the county Department 
of Public health with his doctor's help.

It had no expiration date because Hawkins obtained it for "a chronic 
and terminal condition," according to Moorman's order. The court 
found the card valid.

The officer opted to search the car anyway "because he (Hawkins) told 
me he had marijuana in the car,'" according to testimony quoted in 
Moorman's ruling.

"This Court is not suggesting that the presentation of the 215 card 
was a means of immunization from the search," Moorman wrote. "But, 
the totality of the circumstances included a voluntary statement 
coupled with the county issued card AND a complete absence of odor or 
impaired driving, or evidence of a larger amount of marijuana in the 
car." (The emphasis is Moorman's.)

The Mendocino County District Attorney's Office has two weeks to 
appeal the ruling. If an appeal is filed, the case would go before 
the state Court of Appeals.

Rennert said if that happens, the ruling would be published as case 
law that can be used as precedent for similar court decisions 
statewide, becoming the first of its kind.
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