Federal Courts

Medical Marijuana Update

by Phillip Smith, January 25, 2012, 06:50pm, (Issue #718)

Medical marijuana is an active issue around the country, and especially so these days in California. Here's the latest:

Arizona

Last Friday, Gov. Jan Brewer gave up her fight against medical marijuana dispensaries in the state. Her decision came after having her challenges thrown out in both federal and state court. Last Friday, she directed state officials to begin implementing the law to allow dispensaries to apply to operate.

California

The clock is ticking on Senate Bill 129, introduced by Sen. Mark Leno (D-San Francisco). The bill would provide medical marijuana patients with protection from workplace discrimination. The legislature must act on the bill by month's end or it dies. It's the same story with Assembly Bill 1017, introduced by Rep. Tom Ammiano (D-San Francisco), which would allow for reduced misdemeanor charges in cultivation cases.

Last Tuesday, the Colusa City Council voted unanimously to extend its ban on dispensaries to another full year. The ordinance goes into effect immediately. This is the last extension on the temporary ban; after this, the city will need a permanent ordinance to spell out the restrictions.

Last Wednesday, federal agents raided the Disabled American Veterans Collective in Murrieta. The owner, Kevin Freeman of Temecula, and one other person were arrested on suspicion of possession of marijuana for sale. Federal search warrant documents accused Freeman of operating a for-profit business that would sell marijuana to people without medical conditions. But Freeman said his operation was "a true collective." The dispensary had previously seen customers pulled over by deputies after leaving the premises and been the subject of an undercover buy by a deputy who fraudulently obtained a medical marijuana recommendation.

Also last Wednesday, the US Attorney for Southern California announced that federal prosecutors over the past week have filed four asset forfeiture lawsuits against properties housing marijuana storefronts in Los Angeles and Orange counties and have sent warning letters to property owners and operators of "illegal marijuana stores" in several Southland cities. They also sent threat letters to dispensary operators and property owners of the nearly two dozen dispensaries operating in Costa Mesa. The feds also raided three Costa Mesa dispensaries.

Also last Wednesday, Glenn County supervisors moved ahead with an ordinance that would ban dispensaries, collectives, and co-ops, but would allow backyard grows for patients. The county's emergency moratorium ordinance expires in March.

Last Thursday, the California Supreme Court decided to hear four medical marijuana cases in a bid to restore same clarity to the state's muddled medical marijuana laws. The cases revolve around state-federal and state-local conflicts, and mixed rulings in lower courts have led to massive confusion in the state.

Also last Thursday, Californians to Regulate Medical Marijuana announced it had filed a medical marijuana regulation initiative with the state last month. The campaign expects to be okayed for signature-gathering early next month and has until April 20 to gather more than 500,000 valid signatures to make the November ballot. See our feature story on it here.

Last Friday, prosecutors in San Luis Obispo County announced they were dropping the charges against six people arrested in 2010 for running medical marijuana delivery services. Prosecutors threw in the towel after a judge issued jury instructions that allowed the defendants to argue that they thought an undercover officer who infiltrated them was part of their collective. That would make the case tough to win, prosecutors said.

Also last Friday, a judge in Riverside rejected a restraining order sought by the city of Murrieta against a newly opened medical marijuana collective. The Greenhouse Cannabis Club can stay open pending a February 17 hearing, even though Murrieta has a moratorium on dispensaries, the judge ruled.

On Monday, federal agents and Riverside County sheriff's deputies raided six suites containing medical marijuana operations in a business park north of Murrieta. The lawmen became aware of the operations while raiding a neighboring dispensary last week. Three people were arrested on marijuana cultivation charges. The raids were led by the DEA.

Also on Monday, the Calexico Planning Commission approved a ban on dispensaries. The proposed ban will now go before the city council.

On Tuesday, San Francisco announced it would begin issuing dispensary permits again after the state Supreme Court agreed to hear four medical marijuana cases that could clarify state law. In doing so, the high court vacated a case, Pack v. Long Beach, that said city or county laws regulating medical marijuana violated federal law. Now that Pack has been vacated, city officials said the permitting process can resume as normal. The following day, the city changed its mind.

Also on Tuesday, Mendocino County supervisors voted to kill the county's medical marijuana permit program after receiving threats of legal action from Northern California US Attorney Melinda Haag. The innovative program allowed collectives to grow up to 99 plants per parcel, with each plant tagged by the sheriff's office.

Also on Tuesday, Humboldt County supervisors voted unanimously to extend a temporary moratorium on new medical marijuana dispensaries for an additional 10 months and 15 days. The supervisors also added language to the ordinance that is meant to protect existing dispensaries from closure. Three dispensaries currently operate in the county.

Also on Tuesday, the Whittier city council voted to impose a 45-day moratorium on new dispensaries, citing the Pack v. Long Beach ruling and ignoring the fact that the state Supreme Court vacated it last week. That means the number of dispensaries in the city is capped at one -- the Whittier Hope Collective, which opened in July 2010 after the council approved a conditional use permit. Although the moratorium is only for a month and a half, the council indicated it intended to maintain the status quo until the Supreme Court decides Pack and other medical marijuana cases.

Lastly, on Tuesday, a judge in Live Oak heard arguments in a civil lawsuit brought against the city over its ban on growing medical marijuana. James Maral sued after the city council last month approved the ban on even personal grows, saying it would force him to make "cruel choices." The lawsuit accused the city of running afoul of state law (Proposition 215), which allows patients to grow their own medicine. The city had acted after complaints from residents about the "stench" of marijuana and fears of violent robbery attempts. The judge refused to issue a temporary injunction because he had not seen the ordinance, but left open the possibility of revisiting the decision at a later date.

Colorado

Last Thursday, Colorado US Attorney John Walsh told the Denver Post that evidence medical marijuana is having a negative impact on kids spurred his decision to crack down on dispensaries near schools. The comments came days after he sent letters to 23 dispensaries within 1,000 feet of schools. The letters ordered the dispensaries to close by Feb. 27 or face potential criminal prosecution or seizure of assets.

On Monday, Law Enforcement Against Prohibition sent a letter to Colorado US Attorney John Walsh saying his threats and actions against medical marijuana providers are "a disservice to the state of Colorado." The letter was signed by LEAP director Neill Franklin and two Colorado law enforcement figures, former municipal court Judge Leonard Frieling and retired Denver police officer Tony Ryan.

On Wednesday, medical marijuana supporters organized by Sensible Colorado did a mass phone-in to their US congressional representatives urging them to help call off the federal crackdown and support the state's medical marijuana program.

Indiana

Earlier this month, state Rep. Tom Knollman (R) introduced a medical marijuana bill, HB 1370, which calls upon the Indiana Department of Health to develop a regulatory framework for the growth and distribution of medical marijuana through dispensaries and to register patients with debilitating medical conditions. This is the first medical marijuana bill introduced in the state in recent memory.

Kansas

On Tuesday, a medical marijuana bill got a hearing in the House Health and Human Services Committee. The bill, the Kansas Compassion and Care Act, was introduced by Rep. Gail Finney (D-Wichita). Previous medical marijuana bills have been stalled in committee, and the committee took no action on this one Tuesday. Meanwhile, supporters of the bill packed the hearing room and demonstrated outside before the hearing.

Maryland

Maryland House Delegate Cheryl Glenn (D-Baltimore) has introduced a comprehensive medical marijuana bill that would replace a bill passed last year as a stop-gap measure while the state appointed a workgroup to further study the issue. House Bill 15, the Maryland Medical Marijuana Act, would create clear rules for qualified patients and law enforcement, and put in place a strictly regulated production and distribution system. A measure passed last year created minimal protections for patients but did not set up a distribution system. That measure created a working group to come up with proposals for this year, but neither of those proposals includes allowing patients to grow their own. Glenn's bill does. It now awaits committee hearings.

Montana

Last Thursday, the owner of the Big Sky Health Health dispensary in Missoula pleaded not guilty in federal court to a charge of conspiracy to manufacture and distribute marijuana. Jason Washington is one of six defendants in an indictment that followed federal raids last November on numerous businesses, homes and warehouses linked to marijuana businesses in western Montana. Washington is a former quarterback for the University of Montana Grizzlies, and the feds even seized his Big Sky championship ring, as well as 80 pounds of marijuana and $232,000 in cash.

Last Friday, a federal judge ruled that Montana's medical marijuana law doesn't shield providers of the drug from federal prosecution. US District Judge Donald Molloy dismissed a civil lawsuit by 14 persons and businesses that were among those raided by federal authorities last year. He cited the Constitution's supremacy clause. "Whether the plaintiffs' conduct was legal under Montana law is of little significance here, since the alleged conduct clearly violates federal law," Molloy wrote. "We are all bound by federal law, like it or not."

New Jersey

Last Friday, the New Jersey Supreme Court declined to hear the appeal of John Ray Wilson. Wilson, an MS patient, was sentenced to five years in prison for growing his own medicine in his back yard. He had been out on appeal, but now must resume serving his sentence. Wilson was not allowed to tell his jury why he was growing marijuana plants. Supporters, including legislative leaders, have campaigned for clemency for Wilson, to no avail.

Ohio

Last Friday, Ohio Attorney General Mike DeWine certified a medical marijuana ballot issue, and on Monday, the Ohio ballot board gave its okay. The Ohio Medical Cannabis Amendment campaign can now begin signature gathering. It needs some 385,000 valid voter signatures to make the November ballot. This is the second Ohio medical marijuana initiative to be certified for the 2012 campaign. The Ohio Alternative Treatment Amendment was approved in October.

Washington

On Monday, the city of Bellingham revoked the registrations of medical marijuana dispensaries after deciding that dispensaries were not legal under state or federal law. The city has not yet decided what to do about dispensaries that are already operating there, but at least one said it would reopen as a private, members-only club next month.

Washington, DC

On Monday, a hydroponics superstore known as the "Walmart of Weed" announced it would open a store in the nation's capital in March. WeGrow sells all of the products and services one would need to grow marijuana or other indoor plants, but does not sell the plant itself. The company said it had signed a lease for a property on Rhode Island Avenue NE. The company already operates superstores in Oakland, Sacramento and Phoenix.

Police Need Warrant for GPS Tracking, Supreme Court Rules

by Phillip Smith, January 23, 2012, 04:47pm, (Issue #718)

The US Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the decision was narrow, leaving unanswered lingering questions about citizens' expectations of privacy in an age of rapid technological advance.

The ruling came in US v. Jones, in which Washington, DC, nightclub owner Antoine Jones was convicted of drug trafficking offenses based in part on evidence developed after police placed a GPS device on his vehicle and monitored his movements for 28 days. (See the Chronicle's earlier coverage of the Antoine Jones case here.) Police had sought a warrant to place a GPS tracking device, but that warrant expired before the device was actually placed on Jones' vehicle.

Writing the majority opinion, Justice Antonin Scalia said police needed a search warrant before attaching a GPS device to a suspect's vehicle. He was joined in the opinion by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment's protection against unreasonable searches and seizures, Scalia wrote.

But the court split on whether the decision went far enough. Scalia wrote that if the government had been able to use electronic surveillance to spy on Jones without physically trespassing on his property, that may have been "an unconstitutional invasion of privacy." But, Scalia added, "The present case does not require us to answer that question."

That wasn't good enough for Justice Samuel Alito Jr., who, in a concurring opinion, said the court should have tackled the larger question instead of using "18th century tort law" to decide a case about "21st century surveillance techniques."

"The court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)," Alito wrote.

It was the long-term surveillance itself, not the fact that police physically placed a tracking device on Jones' vehicle, that violated the Fourth Amendment's proscription against warrantless searches and seizures, Alito argued.

"The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy," he wrote. "For such offenses, society's expectation has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalog every single movement of an individual's car for a very long period."

Although Justice Sotomayor joined the majority opinion, she also seemed disappointed that the court had not ruled more broadly. She wrote that the court had in effect ducked the big question of whether warrantless electronic surveillance was constitutional and warned that Monday's decision will do little to answer that question.

"With increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smart phones," Sotomayor wrote. "In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance."

Still, this is a win for the Fourth Amendment and for individual privacy rights, even if it is limited.

Washington, DC

United States

See map: Google Maps

Arizona Governor Gives Up Medical Marijuana Fight

by Phillip Smith, January 13, 2012, 06:42pm, (Issue #717)

Arizona Gov. Jan Brewer (R) said last Friday she would no longer block medical marijuana dispensaries from opening in the state. The news came in a statement announcing that the state would not try again after a lawsuit she filed blocking implementation was dismissed in federal court earlier this month.

http://stopthedrugwar.com/files/janbrewer.jpg

Gov. Brewer has lost her anti-medical marijuana fight

Brewer said she will direct the state health department to begin accepting and processing dispensary applications once a separate legal challenge over state regulations is settled. The pending state court lawsuit was filed on behalf of Compassion First, a group formed to advise those opening dispensaries, which has challenged restrictive health department rules restricting who can operate a dispensary.

"The State of Arizona will not re-file in federal court a lawsuit that sought clarification that state employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical Marijuana Act (AMMA)," Brewer said in the statement. "Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a pending legal challenge to the Department's medical marijuana rules is resolved."

Brewer also sent a letter to Ann Birmingham Scheel, acting US Attorney for Arizona, seeking clarification of the federal government's position regarding state employees who participate in regulating dispensaries. Brewer had tried and failed to gain that same clarification in her lawsuit.

"It is well-known that I did not support passage of Proposition 203, and I remain concerned about potential abuses of the law," Brewer said. "But the state's legal challenge was based on my legitimate concern that state employees may find themselves at risk of federal prosecution for their role in administering dispensary licenses under this law."

Now that the lawsuit has been dismissed, implementing the dispensary provision of the law is "the best course of action," Brewer said.

"The State of Arizona was fully implementing the provisions of Proposition 203 last spring," Brewer said. "That's when Arizona was among a host of states that received letters from the US Department of Justice threatening potential legal ramifications for any individual participating in a medical marijuana program, even in states where it had been legally approved," she reminded.

"Would state employees at the Department of Health Services, charged with administering and licensing marijuana dispensaries, face federal prosecution? This was the basis for calling a 'time out' in order for the State to seek a straightforward answer from the court. With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law."

But Brewer warned that she would shut things down in a hurry if it appeared state employees were really going to be prosecuted for their role in regulating the program.

"Know this: I won't hesitate to halt state involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law," she said.

Phoenix, AZ

United States

See map: Google Maps

Medical Marijuana Update

by Phillip Smith, January 11, 2012, 08:54pm, (Issue #716)

Here's the latest medical marijuana news from around the country. There's a whole lot going on.

California

On December 30, a Marin County judge ruled that a Novato dispensary cannot be evicted. The landlord for the Green Door Wellness Education Center had sought to evict it, saying it had violated its lease in various ways, including allowing marijuana smoking on the premises. The judge ruled that the smoke complaints were the most serious violations but "were mitigated and can be further mitigated." But Green Door and the neighboring Green Tiger Collective still face problems with the city, which sent both of them cease-and-desist orders months ago and has a moratorium on dispensaries.

On January 4, the Arcata city council voted for a temporary ban on new dispensaries. The measure does not affect existing dispensaries, but it puts a temporary hold on processing applications for new medical marijuana cooperatives and collectives. Staff will return to the council with a draft moratorium. Also in Arcata, the Humboldt Medical Supply dispensary closed its doors after its landlord received a threat letter from federal prosecutors. Another dispensary, the Sai Center, also received a letter, according to owner Stephen Gasparas, who spoke before the council.

On January 4, outgoing Marin County Supervisor Susan Adams sent a letter to Attorney General Eric Holder opposing the federal intervention in California's medical marijuana program.

Last Thursday, a Humboldt County supervisor met with US Attorney Melinda Haag to discuss the federal crackdown on dispensaries. Third District Supervisor Mark Lovelace said he expressed his disappointment with the crackdown and urged Haag to respect local governments, who decide what is appropriate safe access to medical marijuana.

On Monday, dozens of people protested in San Francisco over the closing of the Market Street Cooperative, which has been operating since 1997. The dispensary shut down after its landlord received a letter from federal prosecutors threatening seizure of the property.

On Tuesday, Marin County supervisors sent a smoking ban back for a rewrite to make clear it does not include marijuana. The ordinance would largely ban smoking in apartments in unincorporated areas of the county.

On Tuesday, the Anaheim city council extended the city's moratorium on new medical marijuana dispensaries for another year. The unanimous vote came after council members said they needed more time to study the "legal complexities" around the issue. The city has had a ban in place since 2007. Anaheim's law was challenged in court by medical-marijuana patients who said it unfairly limited their rights guaranteed by state law. He lost in Orange County Superior Court, but the case is on appeal. Dozens of dispensaries that opened before 2007, when the city began its moratorium, are still open.

On Wednesday, in late breaking news, the DEA raided three San Diego-area dispensaries. No reports yet on arrests.

Colorado

On January 3, the Boulder city council voted to enact an emergency moratorium on new applications for medical marijuana business licenses. The move came after a surprise request by City Attorney Tom Carr, who wants to review unintended consequences of rules the city adopted and who wants to see how a recent court case against the city by a dispensary operator shakes out. The moratorium will be in place pending a public hearing on February 7 in which the council will discuss a longer-term moratorium.

This week, two state legislators said they would propose a bill that would allow the medical marijuana industry to form a "financial cooperative" to provide banking services to medical marijuana businesses. The cooperative would work like a credit union, with membership limited to industry members. But it would be free of the kinds of federal insurance requirements that exist with banks and credit unions and that have made those institutions reluctant to work with medical-marijuana businesses. The bill is in response to federal pressure on banks that have led them to drop medical marijuana businesses. The two solons, Sen. Pat Steadman (D-Denver) and Rep. Tom Massey (R-Poncha Springs), said they would introduce the bill next week.

Florida

This week, medical marijuana bills were filed in the Florida House and Senate. This marks the second year in a row a bill has been filed in the House and the first time a bill has been filed in both chambers. (See our newsbrief on it here.)

Maryland

On Tuesday, a medical marijuana bill was introduced in the state House of Delegates. Introduced by Delegate Cheryl Glenn (D-Baltimore), HB 15, the Maryland Medical Marijuana Act, would create clear rules for qualified patients and law enforcement, and put in place a strictly regulated production and distribution system. HB 15 would also protect patients from housing and workplace discrimination, something that the workgroup failed to address.

Michigan

On Wednesday, a Lansing medical marijuana dispensary owner was acquitted of charges he violated Michigan's election laws. Shekina Pena, 34, the owner of Your Healthy Choice Clinic, was charged by Attorney General Bill Schuette's office with trying to influence voters after he offered free marijuana to patients who registered to vote. A jury found him not guilty.

This week, an initiative campaign to repeal marijuana prohibition in Michigan, largely inspired by Schuette's antics and obstructionism, is gearing up for its signature-gathering phase. Read our feature article about it this week here.

Montana

Last week, two members of a family of medical marijuana providers were negotiating a plea deal with prosecutors, making it unlikely that a Montana court will ever have the chance to determine if federal drug laws preempt the state's medical marijuana law. Richard and Justin Flor face pot possession, distribution, and conspiracy charges after Montana Cannabis was raided last spring along with dozens of other providers. They had said they would challenge the charges, but now it looks like that won't happen.

New Jersey

On December 28, the town of Plumsted temporarily banned medical marijuana cultivation farms. The township wants time to plan where such a facility might be appropriately located. Plumsted is the third local government to ban medical marijuana cultivation, following Upper Freehold and Howell Township.

On January 4, the Westampton Land Development Board denied a permit for a medical marijuana grow and dispensary. The Compassionate Care Foundation, which had sought to locate the facility there, said it would appeal to state Superior Court. Only one of six care centers allowed under the New Jersey medical marijuana program has so far found a location.

Oregon

On Monday, several dozen people protested in Grants Pass to protest what they called corruption in law enforcement when it comes to medical marijuana. They accused by name a Grants Pass detective and an assistant district attorney, saying they violated people's rights, falsified documents, and wrongfully submitted evidence. Police denied any wrongdoing.

This week, the US Supreme Court declined to hear appeals from two Oregon sheriffs of a state Supreme Court ruling that found they could not deny concealed hand gun permits to registered medical marijuana patients. The sheriffs had attempted to argue that to provide permits to patients would force them to violate federal gun laws, which bar controlled substance users from obtaining weapons. They lost in every court that heard the cases.

Supreme Court Will Hear Florida Drug Dog Case

by Phillip Smith, January 07, 2012, 02:10am, (Issue #716)

The US Supreme Court said last Friday it would decide whether having a drug dog sniff at the door of a private residence violates the Fourth Amendment's proscription against warrantless searches. The court agreed to hear an appeal from the state of Florida in a case where the Florida Supreme Court ruled that such searches were indeed unconstitutional.

The case is Florida v. Jardines, which began with the arrest and conviction of Joelis Jardines for marijuana trafficking and electricity theft after a Florida police officer's drug dog sniffed at Jardines' front door and alerted to the odor of marijuana, Jardines and his attorney challenged the search, claiming the dog sniff was an unconstitutional intrusion into his home.

The trial judge agreed, throwing out the evidence, but an appeals court reversed the lower court decision. In April, in a split decision, the state Supreme Court reversed the appeals court, siding with the trial judge.

What the high court decides will be watched with great interest by law enforcement, which sees drug-sniffing dogs as an invaluable tool in its fight to suppress drug use and the drug trade. Eighteen states had joined with Florida in urging the court to take up the case. They argued that the state court decision went against legal precedent and threatened a valuable and widely-used tactic.

This will be only the latest legal tussle over whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure. In previous cases, the Supreme Court has upheld the use of drug-sniffing dogs during traffic stops, at airport luggage inspections, and for shipped packages in transit.

This case is different because it involves a private residence. The Supreme Court has repeatedly emphasized that a residence is entitled to greater privacy than cars on a highway, luggage at an airport, or a package in transit. The court used that reasoning in a 2001 case involving the use of thermal imaging to detect heat from a marijuana grow operation in a home, ruling that the scan constituted a search requiring either a search warrant or probable cause.

The Supreme Court is expected to hear oral arguments in April and render a decision by the end of June.

Washington, DC

United States

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Supreme Court Asked to Take Drug Dog Case

by Phillip Smith, January 04, 2012, 05:49pm, (Issue #715)

The state of Florida is asking the US Supreme Court to reverse a ruling by the Florida Supreme Court that having a drug dog sniff the front door of a residence is a violation of the Fourth Amendment's proscription against unreasonable searches. Court followers told the Associated Press the high court is likely to take up the case.

drug dog (wikimedia.org)

In Florida v. Jardines, a case that originated with the arrest and conviction of Joelis Jardines for marijuana trafficking and electricity theft after a Florida police officer's drug dog sniffed at Jardines' front door and alerted to the odor of marijuana, the state Supreme Court held that the drug dog sniff was indeed a search under the Fourth Amendment and thus required either probable cause or reasonable suspicion if conducted without a search warrant.

The justices could decide this month whether to take the case, the latest dispute about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure. In previous cases, the Supreme Court has upheld the use of drug-sniffing dogs during traffic stops, at airport luggage inspections, and for shipped packages in transit.

This case is different because it involves a private residence. The Supreme Court has repeatedly emphasized that a residence is entitled to greater privacy than cars on a highway, luggage at an airport, or a package in transit. The court used that reasoning in a 2001 case involving the use of thermal imaging to detect heat from a marijuana grow operation in a home, ruling that the scan constituted a search requiring either a search warrant or probable cause.

"We have said that the Fourth Amendment draws a firm line at the entrance to the house," the court held in that case, Kyllo v. United States. The opinion noted that thermal imaging could detect such private matters as "at what hour each night the lady of the house takes her daily sauna and bath."

Jardines and his attorney challenged the search, claiming the dog sniff was an unconstitutional intrusion into his home. The trial judge agreed, throwing out the evidence, but an appeals court reversed the lower court decision. In April, in a split decision, the state Supreme Court reversed the appeals court, siding with the trial judge.

Now, attorneys for Florida are seeking US Supreme Court review. They argue that the state Supreme Court decision conflicts with previous rulings that a drug dog sniff is not a search.

"A dog sniff of a house reveals only that the house contains drugs, not any other private information about the house or the persons in it," wrote Carolyn Snurkowski, Florida associate deputy attorney general. "A person has no reasonable expectation of privacy in illegal drugs."

Tallahassee, FL

United States

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Medical Marijuana Update

by Phillip Smith, December 21, 2011, 06:10pm, (Issue #714)

California

On December 14, a federal judge in San Diego rejected a request from medical marijuana advocates for an injunction to halt federal enforcement actions against dispensaries there. The ruling followed his November ruling rejecting a temporary restraining order. US District Judge Dana Sabraw rejected arguments that the feds were engaging in selective prosecution by not targeting dispensaries in other states and that use of medical marijuana has become a protected right. Sabraw noted that the federal government was prosecuting some dispensaries in other states and ruled that using marijuana as medicine is not a fundamental right protected by the US Constitution. The suit is not dead, but the government is now expected to file a new motion to dismiss the case.

Also on December 14, NORML dismissed James Benno, the director of its Redding chapter, after his angry outburst during a meeting of the Shasta County Board of Supervisors the night before as the supervisors voted to ban dispensaries in the county's unincorporated areas. NORML also apologized to the supervisors and suspended the Redding chapter. Benno's behavior prompted an editorial in the Redding Record Searchlight, Nasty Outbursts do Nothing for Marijuana Cause.

On December 15, the Fresno city council voted to ban outdoor medical marijuana cultivation within the city limits. Fresno County banned outdoor grows last year. The vote came after Fresno police went to the council seeking an immediate ordinance "to prevent the cultivations from starting next year." Police cited the shooting death of a local man during an attempted marijuana heist in a backyard last year. The emergency measure took effect immediately and must be renewed within 45 days. A final permanent ban is expected in April, and it would make growing marijuana a violation of (no pun intended) the city's weed abatement ordinance. Local growers are holding meetings to figure out what to do next.

On December 15, the Butte County Registrar of Voters certified a referendum petition turned in by opponents of a ban on medical marijuana dispensaries in the county. The petitioners are trying to reverse a recent vote by county supervisors to ban dispensaries. Supervisors will take up the issue at their next meeting. They can either reverse their decision or put the matter before the voters on the June ballot.

On December 15, medical marijuana advocates filed a proposed 2012 ballot initiative to license, regulate, and tax the industry at the state level. The initiative, the Medical Marijuana Regulation, Control, and Taxation Act was filed by a coalition that includes Americans for Safe Access, California NORML, the Drug Policy Alliance and the United Food and Commercial Workers union, which represents some dispensary workers.

"We think that this initiative will create a level playing ground that law enforcement will embrace because it creates a sensible process," said Dan Rush, national director of the United Food and Commercial Workers' medical cannabis division. "The US attorneys became hostile to medical marijuana in California and what we are doing is offering a responsible, dignified and sincere approach to the citizens of California."

Look for a feature article on the initiative in coming weeks.

On Friday, Sacramento County's Magnolia Wellness Center closed down but only after offering free grams and discounts on top-tier medical marijuana strains to its clients. Hundreds of customers of what was possibly the largest dispensary in the county lined up for the final day, with many expressing great unhappiness with the federal crackdown and an aggressive campaign by the county to shut down dispensaries via citations for building code and zoning violations. The county had seen as many as 99 dispensaries open in the past two years. Now there are only five left. The closing of Magnolia left 25 unionized bud tenders and other workers out of jobs in a county where the unemployment rate is 11.8%.

On Saturday, the Marin Alliance for Medical Marijuana in Novato closed its doors in the face of threats of federal prosecution. The Alliance was the oldest operating dispensary in the state and had a good working relationship with local officials, but ran afoul of the feds because it was located too close parks and schools. It closed after it was served an eviction notice by its landlord, who had received a threat letter from US Attorney for Northern California Melinda Haag. Co-founder and longtime Alliance operator Lynette Shaw also formally severed her connection with the Alliance, saying she was "in great danger," presumably of federal prosecution.

On Monday, San Diego medical marijuana collectives unveiled a proposed ballot initiative that would regulate storefront operators and generate additional revenue through a sales tax to the city of San Diego. The move comes after years of futile efforts to get the city council to enact a friendly ordinance regulating dispensaries and as both local and federal prosecutors are cracking down on dispensaries in the area. The same collectives earlier this year collected enough signatures to successfully repeal a restrictive city ordinance. If they get enough signatures this time, the measure will be on next November's ballot.

Montana

On December 15, three medical marijuana dispensary operators were sentenced in federal court to a year in prison each. Joshua Schultz, Jesse Leland, and Jason Burns could have faced a five year prison sentence, but the US Probation Office recommended two to 2 ½ years under sentencing guidelines.

US District Court Judge Charles Lovell went a step further, saying: "The sentencing range that established the guidelines has been, in the judgment of the court, excessive for utilization in this particular case under what I find to be very unusual circumstances. While it is true that the law was violated and while it is true that the computation set forward by the US Probation Office complies with the guidelines in an ordinary case, this is not an ordinary case as to each of the three defendants."

The three men had all operated dispensaries in compliance with Montana state law and believed they were safe from federal prosecution because of the Justice Department's 2009 Ogden memo. But their dispensaries were among more than two dozen hit in March raids by the feds, and they were arrested and jailed on about 25 charges each, including manufacturing and distributing marijuana and money laundering.

On Tuesday, a Whitefish man who helped run a medical marijuana dispensary was sentenced to a year and half in federal prison. Ryan Blindheim, 34, had helped operate the Black Pearl dispensary in Olney along with Evan Corum, also of Whitefish. Corum earlier pleaded guilty to money laundering and was sentenced to six months in prison. Blindheim pleaded guilty to money laundering and conspiracy to manufacture marijuana. Black Perl was among the more than two dozen medical marijuana businesses raided by the feds in March.

Washington

On December 14, Seattle marijuana defense attorney Douglas Hiatt filed a lawsuit challenging the city's ordinance regulating medical marijuana dispensaries. The lawsuit argues that the ordinance is unconstitutional because it requires dispensary operators to admit they are taking actions that are illegal under federal law.

Arizona Governor Asks Federal Judge to Void Part of Medical Marijuana Law

by Phillip Smith, December 14, 2011, 08:36pm, (Issue #713)

Gov. Jan Brewer (R) decided Wednesday to ask a federal judge to throw out a central component of the state's voter-approved medical marijuana law. The decision came just two days after a federal judge threatened to dismiss Brewer's lawsuit seeking clarity about medical marijuana regulations if the state did not take a position on whether it can implement the law despite federal statute or whether federal law preempts it.

No dispensaries for Arizona if Gov. Brewer has her way. (wikimedia.org)

Gubernatorial press aide Matthew Benson told Capitol Media Services that Brewer is now taking the position that federal law preempts a provision in the law that requires the state to regulate and permit more than 100 medical marijuana dispensaries. The state will ask US District Court Judge Susan Bolton to rule that Arizona cannot process dispensary applications.

"She does support the will of the voters," Benson said, even though she opposed last year's successful initiative. "But she also has to look out for the well-being of her state employees. No state employee should be put in a position where they could face federal prosecution simply for doing their jobs."

Joe Yuhas, spokesman for the Arizona Medical Marijuana Association, which led last year's campaign, slammed the governor's decision. "That's unfortunate," he told Capitol Media Services. "I also think it's somewhat ironic that a state government that seems to continuously question federal preemption, whether it's health care or immigration, now runs behind that shield in an effort to thwart the will of the voters."

He added that the whole federal lawsuit seeking clarification is a waste of time and money. While Arizona's law, like those in other medical marijuana states, differs with the Controlled Substances Act in allowing medical marijuana use and distribution under state law, no state or local official anywhere has been prosecuted for undertaking actions to regulate medical marijuana in states where it is legal, he noted.

The Arizona law lets persons with specified medical conditions obtain and possess up to 2 ½ ounces of marijuana per week. Some 16,000 people have registered to do so. Brewer is not seeking to invalidate that part of the law.

The law as approved by voters only allowed patients or caregivers to grow their own if they were located more than 25 miles from a dispensary. But if Arizona ends up with no dispensaries, any patient could grow his own.

Medical Marijuana Update

by Phillip Smith, December 08, 2011, 08:24am, (Issue #712)

So much is going on in the world of medical marijuana that we cannot adequately cover it all through news briefs and the occasional feature article. The news briefs and feature articles will, of course, continue, but beginning now, we will also include a weekly medical marijuana update at least noting all those stories we are unable to cover more comprehensively. This first update was updated daily through today for release with this week's Drug War Chronicle issue. Subsequent updates will appear as a regular weekly feature. Here we go:

National

On November 30, the governors of two medical marijuana states, Christine Gregoire (D) of Washington and Lincoln Chafee (I) of Rhode Island, called on the Obama administration to reschedule marijuana. The next day, Vermont Gov. Peter Shumlin (D) said he would join them, but that same day, Nevada Gov. Brian Sandoval (R) said he would not.

California

As of the end of November, the US Attorney's Office in San Diego reported that more than 60% of the 222 dispensaries in the region have closed their doors since it began sending threat letters in October to the outlets and their landlords. That's 139 dispensaries gone in far Southern California, and the feds said they expected another 20 or so to close in the next two weeks.

On November 28, a federal judge in San Francisco declined to issue a temporary injunction blocking a federal crackdown on dispensaries in the Bay Area. US Attorney Melinda Haag had ordered those clubs to close, because they were too close to schools on parks. Two of the targeted dispensaries, San Francisco's Divinity Tree and Medithrive, have already shut down to avoid criminal prosecution or seizure of their properties. A third, the Marin Alliance for Medical Marijuana in Fairfax, may be about to follow (see below).

Also on November 28, the last dispensary in the Stockton area shut down after receiving one of those October threat letters from federal prosecutors. County officials had banned dispensaries. One other dispensary shut down in October, and two more are on hold as city officials await clarification from state and federal authorities.

That same day, the city of Novato voted to renew its expiring moratorium on dispensaries for another year and said city staffers would move to shut down two dispensaries operating in violation of city zoning ordinances. The moratorium does not apply to the two dispensaries because they were grandfathered in, but staffers said they are prohibited under city zoning rules, which do not name marijuana sales as an allowed use.

Also on that same day, the Amador County Board of Supervisors temporarily banned outdoor medical marijuana grows in the wake of a September killing during the attempted robbery of a medical marijuana grow. A task force drafting regulations for outdoor grows will meet later this month. Amador County Counsel Gregory Gillott said Fresno, El Dorado, Glenn and Lassen counties all have similar bans on outdoor growing.

On Novmber 30, a Marin County judge declined to quash an eviction order aimed at closing the Marin Alliance for Medical Marijuana dispensary in Fairfax. The Marin Alliance is the longest operating dispensary in the state, but it could be doomed after being targeted by federal prosecutors in October. Founder and operator Lynette Shaw has until December 9 to answer the ruling and request a trial, but said this week she wasn't sure she will stay open.

That same day, the Orange County Sheriff's Department said that any sales of medical marijuana are illegal. After raids last month that targeted a half-dozen dispensaries and more than a dozen other locations and persons, the department said Proposition 19 and laws passed to regulate medical marijuana in the state "do not authorize sales of marijuana."

Also on November 30, Los Angeles City Attorney Carmen Trutanich announced that his office is targeting nine dispensaries to be shut down because they're within 600 feet of a school. He said he would seek $2,500 a day penalties if they stay open while being sued. Meanwhile the city reports that 372 marijuana businesses had filed to begin paying a city business tax by the October 31 deadline. An unknown number had not filed, but city officials said there could be as many as 500 dispensaries in the city, down from a peak of 850.

On December 1, prosecutors in Oroville dropped the charges against three members of a Chico-area medical marijuana collective because, they said, one of their codefendants was seriously ill. The three had been charged with marijuana cultivation and possession with intent to distribute after their Mountainside Patient Collective in west Chico was raided in a June 30, 2010, sweep of seven dispensaries and 11 residences raided that day.

Also on December 1, disgruntled residents of Northern California's Lake County filed a notice of intention to circulate a petition for "Lake County Act to Adopt Federal Marijuana Laws." The petition's statement of reasons explains, "Voters of Lake County, California, need an alternative to the aggressive pro-pot agenda being pushed by entities within and outside of the county." If the petition receives enough signatures, it would qualify as an initiative on the June 2012 ballot.

On Monday, the city of Oakland advanced in its plan to double the number of dispensaries from four to eight. It posted on its web site the 10 finalists for the four club permits. They are: Oakland Community Collective; G8 Medical Alliance, Inc.; Tidewater Patients Group; AMCD, Inc.; Agramed; East Bay Conscious Collective; South Bay Apothecary Collective; Magnolia Wellness Inc.; Abatin Wellness Center of Oakland; and Green Light District. Public hearings begin in January.

On Tuesday, the Sacramento County Board of Supervisors passed an amendment to the zoning code that will effectively bar medical marijuana dispensaries in unincorporated areas of the county. "Notwithstanding any provision of the zoning code, any land use activity or establishment that contravenes state or federal law or both is prohibited," the amendment reads. There are seven or eight dispensaries left in the unincorporated area of the county.

Also on Tuesday, the Redding City Council voted to seek a court order to shut down medical marijuana dispensaries in the city. At least seven dispensaries remained open this week despite a city ban that went into effect last week. The vote came after a Shasta County Superior Court judge last week denied a request for a temporary restraining order against the city's ban. A hearing for a preliminary injunction against the ban is set for January 17.

Massachusetts

The Committee for Compassionate Medicine, which is seeking to put a medical marijuana initiative on the ballot next year, announced December 1that it had had handed in more than 74,000 signatures and planned on handing in another 10,000 by next week's deadline. They need 68,911 valid voter signatures to make the ballot, so even if they get that additional 10,000, it's still going to be a very close call, given that some sizeable fraction of signatures gathered will be found to be invalid.

Michigan

An Oakland County circuit court judge November 28 threw out a lawsuit filed by the ACLU and two medical marijuana patients against the cities of Birmingham and Bloomfield Hills, which had passed ordinances saying it is unlawful for anyone to engage in an activity contrary to state, local, or federal law. The judge dismissed the suit, saying the plaintiffs had not been charged with any crimes. The ACLU and the plaintiffs had hoped to force a ruling on whether state and local law enforcement had to obey the Michigan Medical Marijuana Act, but they didn't get it.

On November 29, two Oakland County dispensaries were raided by the Oakland County Narcotics Enforcement Team. Police arrested three people at one dispensary and four at the other and seized a combined five pounds of medical marijuana and three pounds of edibles. No charges have been filed yet.

New Jersey

A Rutgers-Eagleton poll released November 30 found overwhelming Garden State support for medical marijuana and high levels of support for marijuana law reform as well. A whopping 86% of respondents supported the availability of medical marijuana, while 60% thought penalties for pot use should be relaxed, just over half didn't think pot possession should be a crime, and one-third would completely legalize its sale and use.

The poll was released just a day after Gov. Chris Christie (R) announced that he had appointed a law enforcement figure, retired State Police Lt. John O'Brien to oversee the program, which has yet to actually serve a single patient nearly three years after it was passed into law. The first strictly-regulated compassion centers are set to open next year.

The state Department of Health and Human Services last month finally published rules and regulations for the program, which were roundly denounced by the Coalition for Medical Marijuna-New Jersey, the state's leading patient advocacy group.

Washington

On Monday, the Issaquah City Council set rules governing medical marijuana collective gardens to limit such operations near schools, parks and other collective gardens. The measure sets a 1,000-foot buffer between a collective garden and a community center, school or another collective garden. The ordinance also sets a 500-foot buffer between a collective garden and park, preschool or daycare center. Its passage was greeted with applause by medical marijuana advocates present at the meeting.

Wisconsin

At a November 28 news conference at the state capitol in Madison, Rep. Mark Pocan (D-Madison) announced that he is introducing LRB-2466, the Jackie Rickert Medical Marijuana Act (JRMMA), named after the wheelchair-bound patient, activist, and member of Is My Medicine Legal Yet, the state's most prominent medical marijuana activist group.

Pocan and state Sen. Jon Erpenbach (D-Waunakee) will be the lead sponsors of the bill, which died without a committee vote last session. Activists in Wisconsin have been working for a decade to pass medical marijuana legislation. Whether it will happen this session, given the bitter political atmosphere and Republican nomination at the state house remains to be seen.

Supreme Court Takes Up Crack "Pipeline" Sentencing Cases

by Phillip Smith, November 28, 2011, 09:57pm, (Issue #711)

The US Supreme Court announced Monday that it will decide whether a federal law designed to reduce the disparity between crack and powder cocaine sentences should be applied to those who were convicted, but not sentenced, before it came into effect.

The court granted certiori to two appellants, Edwin Dorsey and Corey Hill, both of whom were convicted of federal crack cocaine offenses before the 2010 Fair Sentencing Act went into effect, but not sentenced until after it was in effect. Lower courts split on whether the act should apply, but the US 7th Circuit Court of Appeals in Chicago held it should not.

The cases of people like Dorsey and Hill, whose cases were not complete when the law went into effect are known as "crack cases in the pipeline," or "pipeline" cases.

The Fair Sentencing Act reduced the disparity between the amount of crack cocaine and the amount of powder cocaine needed to trigger federal mandatory minimum sentences by increasing the amount of crack needed to trigger such sentences, and lessened the penalties for crack offenses specified by the federal sentencing guidelines system. Once a 100:1 ratio between weight of crack cocaine vs. powder cocaine, the disparity was reduced to 18:1. At the beginning of November, the reductions were made retroactive, allowing up to 12,400 prisoners to file motions seeking early release. But "pipeline" cases were caught in a lacunae.

The Supreme Court will hear the two cases together in oral argument. A decision in the cases is expected by June.

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Medical Marijuana Update

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Medical Marijuana Update

Arizona Governor Asks Federal Judge to Void Part of Medical Marijuana Law

Medical Marijuana Update

Supreme Court Takes Up Crack "Pipeline" Sentencing Cases

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