Judge denies request to hold on to pot

November 28, 2007

Sara Reed, The Coloradoan

A judge's denial of a city request to reconsider his ruling that returned medical marijuana to a Fort Collins couple was praised Wednesday by the couple's defense attorney.

"We think it was the right thing to do," said Brian Vicente, one of two attorneys who have represented James and Lisa Masters since their August 2006 arrest. "The judge realizes the importance of (medical marijuana) and is abiding by the constitution."

The city of Fort Collins filed a motion Wednesday morning asking Larimer County Chief District Court Judge James Hiatt to reconsider and clarify his motion. He denied it hours later.

"Intervention by the city of Fort Collins and (Fort Collins police services) in this criminal case needlessly expands this litigation and is not necessary for the city to assert any defenses regarding this court's order, and to have its 'day in court,' if relief is sought against it by (the couple) due to the order to return property," Hiatt wrote in the order.

The city won't appeal the decision, Assistant City Attorney Theresa Ablao said.

Cultivation and possession charges against the couple were dropped in June after Hiatt ruled the search that led to the search warrant was illegal.

On Monday, he ruled the property seized - which included paraphernalia, growing equipment and 39 marijuana plants in various stages of growth - be returned. The plants, being held by Fort Collins police, are dead, and they've said they'll seek financial compensation for anything that was destroyed.

The plants could be worth more than $100,000, Vicente said.

In the motion, Ablao wrote the police department objected only to the return of the marijuana, not the other items because, despite the medical marijuana amendment to the Colorado constitution, as it is still illegal under federal law, Ablao wrote.

"We just want him to fully understand the full picture and to get clarification from him whether federal law applied or not," she said.

Hiatt did not address that aspect in his ruling, but Vicente said he thinks state and federal law can co-exist.

Ablao also argued the marijuana was contraband because the Masters did not have a valid medical marijuana certificate, did not present evidence that they or other patients had been diagnosed with a "debilitating condition" or that the amount seized was medically necessary.

"It really kind of illuminates the lengths the city and county will go to deny people access to medical marijuana," Vicente said of the motion.

There is a provision in the amendment, passed by voters in November 2000, that requires plants seized from medical marijuana patients and caregivers be maintained, but police spokeswoman Rita Davis said that didn't apply in this case.

"They didn't have proof or documentation of that," she said. "It was treated like any other confiscation case."

It's possible the couple could get their property back Friday, but nothing has been set, Vicente said.

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