Jump to content

Medical Marijuana Law Irrelevant To Decision On Whether To Issue Search Warrant—C.a.


bobandtorey

Recommended Posts

 

Police seeking a warrant to search for evidence of the illegal possession and cultivation of marijuana need not inquire into whether the substance is being possessed or grown for medical purposes, this district’s Court of Appeal ruled yesterday.

Div. Five upheld Reece J. Clark’s convictions of possession of cocaine and a short-barreled shotgun. Clark pled guilty to the charges, but obtained a certificate of probable cause allowing him to appeal based on the denial of his motion to suppress.

Los Angeles Superior Court Judge Dorothy Shubin had denied the motion to bar prosecutors from using evidence seized when police executed a search warrant at the defendant’s Pasadena residence. The warrant had been issued on the basis of a deputy sheriff’s affidavit declaring that a reliable confidential informant had told the deputy of a marijuana growing operation being conducted in the defendant’s garage; that the deputy and two colleagues had conducted surveillance, smelled unburnt marijuana outside the residence, and had observed activity normally associated with commercial marijuana growing; that the defendant had a criminal record; and that two vehicles observed at the house were registered to defendant.

Seized pursuant to the warrant were large quantities of marijuana and related paraphernalia, along with cocaine and a short-barreled shotgun. After his motion to suppress was denied, Clark pled guilty to the cocaine and gun charges in exchange for dismissal of the remaining counts and a sentence of probation.

Justice Richard Mosk, writing for the Court of Appeal, rejected the defense argument that the warrant was invalid because the deputy did not relate any effort to determine whether the marijuana being grown by defendant was intended for medical use, as permitted by Proposition 215, the Compassionate Use Act.

The justice rejected the defendant’s reliance on People v. Mower (2002) 28 Cal.4th 457, holding that a defendant charged with a marijuana-related claim may, by pretrial motion to dismiss, present a limited immunity defense under Proposition 215. Mosk cited Mower’s holding that the initiative “does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest.”

Mosk explained:

”The holding in Mower…does not state or imply that law enforcement officers seeking a search warrant have an affirmative duty to investigate a suspect’s status as a qualified patient or primary caregiver under the Compassionate Use Act prior to requesting that a warrant issue.

“To the contrary, Mower makes clear that, although the Compassionate Use Act provides a defense at trial or a basis to move to set aside the indictment or information prior to trial, it does not shield a person suspected of possessing or cultivating marijuana from an investigation or arrest. Therefore, given the holding in Mower, that Act cannot be interpreted to impose an affirmative duty on law enforcement officers to investigate a suspect’s status as a qualified patient or primary caregiver under the Act prior to seeking a search warrant.”

Attorneys on appeal were Julie Schumer, by appointment, for the defendant and Deputy Attorneys General Mary Sanchez and Garett A. Gorlitsky for the prosecution.

The case is People v. Clark, 14 S.O.S. 4489.

 

 

http://www.metnews.com

Edited by bobandtorey
Link to comment
Share on other sites

well this means that anytime leo thinks someone is growing MJ,they can assume its a illegal grow....after they shoot your dog,scare your wife and kids,lock you up,and sieze your property..you can,at your pretrial.. present your card and ask that the charges be dismissed..gosh,you'd think that the cops would have to make some sort of attempt to determine if a grow was medical or criminal but..nooooo..lol..i wonder how many patients lifes we'll lose from cops shooting them as they get out of bed....bp

Link to comment
Share on other sites

I'm not sure if this decision applies to michigan.  I think it doesn't because of section 4a.

 

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner,



The CA judge cited CA 215 which is like 20 years old.  “does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest.”

 

Edited by garyfisher
Link to comment
Share on other sites

I'm not sure if this decision applies to michigan.  I think it doesn't because of section 4a.

 

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner,

 

 

 

The CA judge cited CA 215 which is like 20 years old.  “does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest.”

 

 Thus, we conclude that to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect’s marijuana-related activities are specifically not legal under the MMMA.

People v Brown – PDF

Link to comment
Share on other sites

I've seen the appeals court decision but this time I read it in entirety.  What was the big issue with Brown to not be protected under the MMMA.  Who cares if they have a search warrant if you are in compliance.  Was he not a registered patient?  It never stated he possessed a registry ID card.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
×
×
  • Create New...