Saturday, June 30, 2012

California Supreme Court Declines to Hear Medical Pot Case, Sends Mixed Message

The Los Angeles District Attorney, City Attorney and Police Department are high-fiving each other over the decision of the California Supreme Court not to hear a case involving its prosecution of Organica, a dispensary.

Organica maintained that its operations were legal under the state law that allowed collectives. The city argued that selling pot — even to patients, in the case of Organica — still violated laws against distribution and prevailed.

Los Angeles has since moved to outlaw dispensaries wholesale. Never mind that other pharmaceuticals are sold for a profit, that collectives have been known to discount and sometimes give away cannabis to patients in financial distress, and the author of the state medical marijuana law allowed for sales.

However, Kris Hermes, Americans for Safe Access spokesman, told the L.A. Weekly the issue still isn't settled. Other decisions before the Supreme Court could affirm that Organica was in the right.

Wednesday, June 27, 2012

Federal Court Ruling May Change Probable Cause in Cannabis Cases

A recent federal district court ruling in Spokane is something every medical cannabis attorney, patient, provider and advocate needs to be aware of—not only in Washington State but throughout the entire Ninth Circuit. The ruling is also something of a victory for Washington's recently changed medical cannabis law, because for the first time a judge has ruled in a way that gives quasi arrest protection under the state medical cannabis law and has likely set an interesting precedent on probable cause and cannabis. And the ruling came from a federal court judge. It was also a bit of a slap to the US Attorney's Office in Eastern Washington.

Last November, Spokane County Sheriff's deputies thought they had sniffed out a large cannabis grow in Spokane based upon a deputy's observation of odor of growing cannabis and so they did what narcotics cops often do: They ran the plates on a car at the home and determined that it was someone who'd been convicted of growing in the past. They examined power bills. They visited the home, smelled cannabis odors and made entry and busted several people and, eventually, seized evidence from both that home and a separate storage facility. Then they turned the case over to federal officials in Spokane who indicted the alleged cannabis growers for manufacturing above 100 plants. If convicted, the alleged growers would each be staring at five years minimum in federal prison.

But, in a filing in May, their attorney Richard Wall argued that all of the evidence seized were the fruits of an illegal search and seizure, a violation of the 4th Amendment. He argued this based upon the fact that, in his view, that Washington’s medical cannabis law had changed in 2011 from affirmative defense-only to something more akin to complete decriminalization of medical cannabis, even for growing, provided that people stayed within certain limits of possession. Here's the relevant language at RCW 69.51A.040:

The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law.

In his filing, Wall argued that since there was no evidence in the search warrant affidavit that the deputies had attempted to determine how many plants were present at the location and had made no attempt to determine if anyone at the residence was actually in compliance with the state medical cannabis law, then there was no legitimate probable cause for the search and that any evidence seized should be quashed. What's more, since these were local police and they had not been operating as federal officers or claiming violations of federal law in their search warrant affidavit, then again the evidence seized needed to be tossed out of court.

Wall argued:

In order to establish probable cause to believe that a person has committed or is committing the crime of unlawful use, possession, or manufacturing of marijuana under Washington law, it is not enough to merely show that the person used, possessed, or manufactured marijuana. Instead, probable cause can be established only by showing that such use, possession or manufacturing failed to comply with the terms and conditions of RCW 69.51A.

On May 31, a Senior US District Judge named William Nielsen issued an order accepting Wall's argument and quashing the evidence in the case. Judge Nielsen wrote:

Contrary to the Government's assertion, a state crime has not been committed simply by possessing or manufacturing marijuana in Washington. If the person complies with the medical marijuana statute, they have not committed a state crime....The Court find that the statute is clear on its face and that the medical marijuana exception and the general controlled substance statute must be read together in a manner that gives both effect....It is uncontested that while the affidavit supporting the warrant included evidence of a marijuana grow, there was no mention of them edical marijuana statute or an assertion that the grow violated the medical marijuana statute. This omission is fatal to the warrant as the warrant then does not show probable cause of a crime.

The judge invited the feds to file a reconsideration of its evidence, which the US Attorneys Office for Eastern Washington did, but without success.

Judge Nielsen's ruling is remarkable on a number of fronts: It's literally the first time I've ever seen a federal court judge allow and acknowledge the authority of a state medical cannabis statute, especially in pre-trial maneuvers; it's the first time I can remember a federal court judge saying he was bound to give a state medical cannabis law “effect;” it would appear that the common use of odor of cannabis as probable cause is now out the window in states with medical cannabis law, at least up until an officer has determined if someone is a medical cannabis patient in compliance with their state's medical cannabis law; power bills, another common probable cause tool, would be similarly effected.

In late June, the US Attorney's Office for Eastern Washington filed an appeal of Judge Nielsen's order with the Ninth Circuit Court of Appeals and asked for that a stay be placed on the order. While the Court of Appeals has not ruled yet on the case or the stay, the judge's order is on hold. It is quite likely that whatever appeal the feds file will be met with several opposing amicus briefs.

Unless Judge Nielsen's order is overturned by the Ninth Circuit Court of Appeals, it is a ruling that can be employed by medical cannabis patients and defense attorneys most especially in Washington State, but also in other Ninth Circuit states with medical cannabis laws (California, Hawaii, Oregon, Alaska, Nevada, Montana and Arizona).

California Assemblyman Ammiano's Bill to Regulate Medical Pot Stalled Until Next Legislative Session

California Assemblyman Tom Ammiano's attempt to bring order to the often chaotic patchwork of local laws governing marijuana came to a screeching halt.

Ammiano's bill would have required dispensaries to obtain state licenses in addition to local permits, pay a 2 percent tax, set up a state enforcement bureau for collectives, allowed one pot dispensary per 50,000 people and allowed localities to enact their own bans on dispensaries. However, the potential of cities banning dispensaries — which was inserted into the bill after a committee hearing — prompted the pro-medical marijuana group Americans for Safe Access to withdraw its support for the bill.

ASA spokesman Kris Hermes told the SF Weekly that there are more bans than cities with regulations and that the organization is now "reticent to continue supporting it." Dispensary owners also spoke out against the bill. "AB 2312 favors large-scale, wealthy collective operators over the small collectives providing true community benefit. While statewide guidelines need to be codified, AB 2312 in its current form is a bureaucratic monstrosity that creates more problems than it solves," medical pot activist Degé Coutee wrote.

The bill will return to committee hearings in the fall and may be picked up again in the 2013 session.

Motivations for the Postponement of L.A. Medical Marijuana Vote Unclear

Medical marijuana proponents in Los Angeles were granted a temporary reprieve with the postponement of a vote to shutter the city's dispensaries until July 24.

Several key members of the L.A. City Council were not in attendance, pushing the date of the vote back. KCBS/KCAL reports that KNX 1070′s John Brooks said the delay was the result of a deal in the works to keep non-profit, non-cash medical marijuana operations open.

However, the true motivations of the delay may be more sinister. The L.A. Weekly believes that the delay may be a tactic to put the issue out of the spotlight.

"But City Council delays like this are all too common on controversial and heavily opposed items. By constantly putting off a final vote, politicians are able to wear protesters down and whittle the crowd to a devoted (and often loony) few," the L.A. Weekly's Simone Wilson wrote.

Wilson quotes dispensary owner Matt Hammer saying, "I can't tell you how many times since 2006 that something was going to come before the council, and then we find out it's not going to happen."

Sunday, June 24, 2012

Support for Legalized Marijuana in Washington State is High at 50 Percent to 32 Percent

A recent poll found support for Washington state's initiative to legalize marijuana, I-502, with an impressive 50 percent for and 37 percent against. The primary proponents of the measure are voters under 30, Republicans who represent party's libertarian wing and male voters, reported

The poll, conducted by Public Policy Polling, supports the hopes of Washington Democrats for a larger than usual youth turnout — which usually votes Democratic.

Supporters of I-502 charge that Asian street and biker gangs from British Columbia as well as Mexican cartels are reaping untaxed profits while the marijuana trade is unregulated. The revenues from legalized pot will go to drug education and health programs.

Though support of the issue at this point is far from fringe, the Republican and Democratic candidates for governor expressed their opposition to the measure. This is despite support coming from former federal and local law enforcement officers.