Pubdate: Tue, 16 Jun 2015
Source: Wichita Eagle (KS)
Copyright: 2015 The Wichita Eagle
Contact: http://www.kansas.com/604
Website: http://www.kansas.com/
Details: http://www.mapinc.org/media/680
Author: Gabriella Dunn

MOM WHO USED POT, HAD SON TAKEN AWAY MAKES FIRST COURT APPEARANCE

Shona Banda, a Garden City mom who faces five charges related to
marijuana use, appeared in court for the first time on Tuesday.

Those charges came after her 11-year-old son made comments about Banda
using pot during an anti-drug program in his fifth-grade class at
Bernadine Sitts School.

Eleven days after the incident, Garden City police and the Department
for Children and Families questioned Banda's son at school and raided
Banda's home in Garden City. Authorities took her son away and put him
in protective state custody.

Curtis Jacobs, Finney County court administrator, said Banda's
first-appearance court records were still being processed as of
Tuesday afternoon but should be released Wednesday.

Banda's attorney, Sarah Swain, could not be reached for comment
Tuesday. In an interviewMonday, Swain said Banda made cannabis oil
from pot in her home to treat her Crohn's disease.

Swain said she plans to defend Banda with two strategies. The first,
she said, will be to challenge the constitutionality of how police
officers and DCF officials obtained evidence in the case.

The second strategy, she said, will be to challenge the classification
of marijuana as a Schedule I drug.

Banda now faces five charges. Three are felonies: possession with the
intent to distribute a controlled substance within 1,000 feet of
school property, unlawful manufacture of a controlled substance and
possession of drug paraphernalia to cultivate less than five plants.
The other two charges are misdemeanors: endangering a child and
possession of drug paraphernalia.

Third-party perspective

Richard Levy, University of Kansas J.B. Smith distinguished professor
of constitutional law, said he would be interested in the state's
evidence against Banda in its custody case.

"I think it would be somewhat excessive to say all parents who use
marijuana should lose custody of their children," Levy said.

He said that under the due process clause, parents have a fundamental
right to the custody and care of their children. That means the state
would need especially strong justification for denying Banda custody
of her son.

"Marijuana is illegal, so there's a crime that's committed, but not
all crimes necessarily mean a parent is unfit," Levy said. He added:
"There are people who use marijuana for medicinal or recreational use,
and not all of those parents abuse or neglect their children."

Swain, Banda's lawyer, said Monday that Banda's son is now living with
his father.

In reference to the constitutionality of how officers searched Banda's
house and seized evidence, Levy said officers would need crucial
circumstances to make a seizure without a warrant.

Without the probable cause affidavit, it's hard to tell exactly what
happened that day.

According to a Garden City police news release, officers went to
Banda's house on March 24. When she did not let them in, the officers
secured the home until a search warrant was granted, in order to
prevent destruction of evidence.

Levy said that under the Fourth Amendment, officers generally need a
warrant for a search or seizure.

"If you're securing the house, that's a seizure already," Levy said.
"That may be a problem."

The prosecution

Susan Richmeier, Finney County attorney, was out of the office Tuesday
and could not be reached for comment.

William Votypka, deputy county attorney for Finney County, said he has
been lightly involved with the case and said Banda's second court
appearance is set for Aug. 24.

"We wouldn't have filed a case unless we had evidence that there was
abuse or neglect and that there was a crime committed," Votypka said.

The attention, he said, has been drawn to the marijuana aspect of the
case, when "it's really about the child."

"This isn't any special case where we're trying to go after a woman,"
he said. "It's just a case where we received a law violation, and we
treated it like any other case."
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