Pot clubs call raid warrants illegal

December 18, 2005

Jeff MacDonald, San Diego Union Tribune

The warrants federal drug agents relied on to search 13 medical marijuana dispensaries last week were signed by a San Diego County Superior Court judge, not a judge from U.S. District Court.

That's no small distinction for some dispensary operators and medical marijuana activists. They note that marijuana is legal under California law if it's recommended by a doctor, and state judges are bound by state law.

The circumstances surrounding one of the largest raids of its kind in California have left patients, caregivers, advocates and defense attorneys scratching their heads.

Although no charges have been filed, dispensary operators fear arrests are imminent. They worry about where patients can get marijuana now, and what the government will do with patient records it seized. They want to know who ordered the searches, and they're suspicious of the timing.

The sweep followed by just weeks a decision by the Board of Supervisors to flout state law and refuse to issue identification to qualified medical marijuana patients in San Diego County.

"The fact that state law was used raises interesting questions," said Dale Gieringer of California NORML, a group working to reform marijuana laws. "Were the raids instigated by the feds, or rather by county law enforcement? Was there a connection to the county's recent decision to sue against the state ID card system?"

As many as 29 dispensaries have set up shop in San Diego County over the past years, according to the U.S. Drug Enforcement Administration. Many had client lists of several thousand patients. The government seized those records last week, but officials say they do not plan to pursue criminal charges against patients.

"We believe the charges we bring to the District Attorney's Office will involve drug trafficking," said Misha Piastro, a DEA spokesman.

Jon Sullivan, who owns two dispensaries that were searched last week, noticed immediately that Superior Court Judge John Thompson signed the warrant federal agents handed him last Monday. Sullivan considers it a conflict of interest.

"I asked them about it, and they wouldn't comment," Sullivan said later. "It's important because it's a county judge violating state law. . . . I think it will help with the appeal – if there is one."

Thompson declined to discuss the jurisdictional conundrum.

Some criminal defense attorneys suspect that the DEA turned to local prosecutors because the U.S. Attorney in San Diego has not indicted anyone for using medical marijuana since 2002, when activist Steve McWilliams was arrested on unlawful cultivation charges.

That case ended badly. Facing years in prison, McWilliams pleaded guilty and was free on bail awaiting an appellate ruling when he committed suicide in July. He overdosed on the prescription drugs that were supposed to substitute for the pain-relieving marijuana he was prohibited from using.

Timothy Coughlin, chief of the narcotics division of the U.S. Attorney's Office, said his office pursues every case that warrants prosecution.

"If they didn't result in federal prosecutions, it's because we didn't deem them meritorious," he said.

Coughlin declined to say how many investigations did not result in indictments. He said his office participated in discussions with other law enforcement agencies over what to do about the rising number of dispensaries opening in San Diego.

"We were very concerned, and we are interested," Coughlin said.

But attorney David Zugman is not so sure. Zugman represented McWilliams in his appeal, a case that was quietly dismissed after McWilliams' death. Federal prosecutors generally like to talk up their successes, he said.

"If the U.S. Attorney is involved, they're usually more than happy to say 'We did this,' " Zugman said. "They don't think the state law matters. They've been upfront about that from the very beginning."

The DEA, which led the countywide task force conducting the simultaneous raids in San Diego and San Marcos, downplayed the significance of which judge signed the warrants.

Piastro said the sweep was part of an ongoing investigation that began six months ago, days after the U.S. Supreme Court upheld the federal government's authority to prosecute medical marijuana cases. If evidence suggests crimes occurred, cases could be presented to federal or county prosecutors, he said.

"The warrants were executed as an investigative tool," Piastro said. "We are still investigating whether any charges will be brought, and where."

Damon Mosler, who runs the San Diego County district attorney's narcotics unit, expects the evidence collected during the raids will land on his desk – not in the U.S. Attorney's Office.

Mosler said he will consider the state's medical marijuana laws in determining whether to charge the dispensary owners, who maintain that they are handing out medicine – not selling drugs.

"Sometimes I'll agree with them, and sometimes I will not," said Mosler, who has rejected medical marijuana cases brought to his office by San Diego County law enforcement agencies in the past. "Some of them were just selling to anybody."

Mosler said investigators found that the overwhelming majority of people buying marijuana at the dispensaries did not appear sick or unhealthy. He said communities that want legitimate avenues for dispensing the drug need clearer regulation.

"There are political answers to this," he said.

Medical marijuana activists worry the San Diego action was the beginning of what could be a statewide clampdown. The fear appears to be unfounded.

Federal prosecutions in California are divided into four districts run by an appointed U.S. Attorney, who is responsible for deciding which crimes to make a priority given their limited resources.

"Whether to federally prosecute a medical marijuana dispensary is a decision vested with each United States Attorney's Office, working in conjunction with the DEA," said Larry Brown, the top assistant in the Eastern District of California.

Before the U.S. Supreme Court decision in June, federal prosecutors had to brief Justice Department officials in Washington, D.C., if they planned to raid dispensaries, Brown said. That policy has since been relaxed.

"We will continue to focus on large-scale marijuana cultivation and distribution," Brown said. "Our view is that state law does not give a blanket exemption for cannabis clubs."

Patients such as John Tear of El Cajon remain conflicted. Dispensaries that abuse state law deserved to be shut down, said Tear, a 34-year-old veteran who said he uses marijuana to relieve symptoms of Gulf War Syndrome.

But legitimate patients need a place to get their medicine safely, he said.

"I just want to be able to do legally what Californians have voted for," Tear said. "I don't want to have to worry about guns being put in my face or getting ripped off."

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