Marijuana and Cannabis News

Police Return Man's Medical Marijuana -- With No Court Order!
By Steve Elliott ~alapoet~ in Medical, News
Tuesday, April 13, 2010 at 11:58 am
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Photo: Home Security Guru
Going against its own policy, a police department in California has returned several containers of marijuana to a 21-year-old man who said he was falsely accused of possession, transportation and sales.

The man, who lives in Mountain Ranch, California, asked that his full name not be used, opting to be referred to only as "Frank," reports Joel Metzger of the Calaveras Enterprise. He was pulled over by Officer Jim McKeon of the Angels Camp Police Department on Nov. 22 in a parking lot for expired registration on his vehicle, according to the police report.

Officer Chris Johnson arrived on the scene, said he smelled the odor of raw marijuana, and claimed he saw some marijuana in plain sight in the car, according to Angels Camp Police Chief Dale Mendenhall.

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Photo: Joel Metzger/Calaveras Enterprise
Tom Liberty holds 3 ounces of marijuana that was returned by the Angels Camp Police Department
The officers asked Frank whether he had marijuana in the car; he told them that he did and had a valid recommendation from a physician allowing him to have up to three pounds, the report said.

Frank said that he did not give officers permission to search his car and denies marijuana was in plain sight. The patient said his medicine was sealed inside a scent-proof Mylar bag.

Frank's car was searched and four individual packages of marijuana were found in his trunk, along with a digital scale and grinder, some cash and a flyer advertising a medical marijuana collective, according to Mendenhall.

A scale, small packages of marijuana, cash and a pay-owe sheet are all signs prosecutors look for when determining if an individual is selling marijuana, according to Calaveras County District Attorney Jeff Tuttle.

Frank had several small glass containers of marijuana totaling about three ounces, a small grinder, and a digital scale, the report said; however, he did not have a pay-owe sheet or large amounts of cash.

Possession of such items is no longer considered incriminating, according to Tom Liberty of San Andreas, organizer of Calaveras Patient Resources, a medical marijuana information group that asks law enforcement to enforce California state law.

According to Liberty, patients commonly carry scales with them to make sure they don't get ripped off as dispensaries have become commonplace in California.

Liberty also said that many medical marijuana patients carry their medicine in separate containers because there are many different strains of cannabis that have noticeably different effects -- a claim for which, as a medical marijuana patient, I can personally vouch.

In the parking lot November 22, Frank said he was detained, without arrest, for several hours while officers interrogated him and waited for Detective Steve Avila to arrive from the Calaveras County Sheriff's Office.

Frank said he told the officers numerous times that he was a legitimate medical marijuana patient and was not a drug dealer, and was confused as to why he was still being detained.

Well-trained officers should have been able to determine that Frank was a medical marijuana patient and nothing more, according to Liberty.

Liberty pointed out what he said were several "obvious signs" that Frank was a patient: The marijuana was stored inside glass containers instead of plastic baggies; none of the cannabis was pre-weighted for sale; and a grinder was found with the marijuana in Frank's car, although it is extremely rare for a dealer to sell pre-ground pot on the street.

"Either the police knowingly arrested a person whom they knew was not guilty of what they were charging him with, or they are untrained to the point of not being able to distinguish legal personal use from sales," Liberty said.

Mendenhall tried to back up his under-trained and over-aggressive officers, claiming their actions were "appropriate for the situation" and and lamely adding that "Possession of marijuana is not legal -- Proposition 215 just gives individuals a defense, and the court will not prosecute someone who falls under the medical marijuana guidelines."

Add one more to the obvious signs that Mendenhall and his entire department are dangerously undertrained. A truly professional officer would have known that California's medical marijuana law does indeed limited immunity from arrest.

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Photo: CA NORML
Dr. Dale Gieringer: "There persists a widespread misunderstanding... that it is only an affirmative defense"
​"The California Supreme Court ruled in its Mower decision that California's law is not an affirmative defense, but a limited immunity, meaning that it confers protection against arrest and prosecution under certain conditions - i.e., that there isn't probable cause to suspect that the patient was breaking the law, e.g., by growing too much or distributing to others," Dale Gieringer, director of California NORML, told Toke of the Town.

"Despite this, there persists a widespread misunderstanding among certain LEO's that it is only an affirmative defense," Gieringer told us. "However, the courts interpret the law properly."

"Generally, in most cases they will not be arrested," Mendenhall claimed. "If they are meeting the guidelines set forth and the doctor recommends a certain amount and they have that amount in their possession or close to that, it's a judgment call at that point," he said.

Avila, who is involved in many marijuana cases in the county and clearly hates pot, was helping the other officers make that judgment call. After Avila finished the questioning, Frank was arrested and booked into the Calaveras County Jail, where he spent the next two days.

The district attorney then declined to press charges and Frank was released.

Frank then initiated the process, with the help of Calaveras Patient Resources, that led to the unprecedented return of his medical marijuana without a court order.

"The very last line of our policy states that no marijuana will be returned without a court order," Mendenhall said.

Pot-hating police departments have claimed in similar cases that marijuana "cannot be returned" because it would violate federal guidelines for them to return an "illegal substance."

Liberty said he knew the law was on his side, having already researched similar cases, and was willing to hire an attorney if necessary.

"What the court found was that federal guidelines didn't have anything to do with anything, and to keep this person's property would violate due process," Liberty said. "So I knew that Frank had a legal right to his medicine."

Liberty contacted Angels Camp City Hall on Frank's behalf, and his request reached the city's legal adviser. After reviewing the case, Richard Matranga recommended that the Angels Camp Police Department return Frank's marijuana.

Though Mendenhall said he was "adamantly opposed" to doing so, he relented and followed Matranga's legal advice.

"He agreed with the D.A., finding that he [Frank] was within the scope [of the] Compassionate Use Act and that we should return it," Mendenhall begrudgingly admitted.

"I disagree with them," the police chief said petulantly. "If anybody violated any policies, it's me violating my own policy."

"I only know of one time when we returned the drugs," Mendenhall said. "This one case may be the only case. As a rule, I'm not going to return the marijuana unless you've got a court order ordering me to do so."

Liberty said the return of Frank's marijuana is a victory for medical cannabis patients in Calaveras County, and said he is pleased to see the police department following the law.

Frank said he can hardly believe his marijuana was returned.

"It was surprising because I really didn't think it would happen for me like that," Frank said. "I think that was a pretty big thing being the first one."

"I hope everybody notices that I did get it back and it wasn't illegal, and I hope someone learned something from this besides me," Frank said.

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