Nord's Pot Case Goes to Denver
January 29, 2004
Susan Bacon, Steamboat Pilot & Today
A conflict between state and federal drug laws took Hayden resident Don Nord, 57, inside the glossy wooden walls of a U.S. District courtroom in Denver on Thursday.
Nord is a registered medicinal marijuana user in Colorado who has battled cancer, diabetes and chronic pain and takes more than 20 medications.
When his 'drugs' or 'medicine' -- depending on who is talking -- was seized in mid-October, he said he wanted to get it back. He said he didn't imagine the effort would earn him a trip to a federal court, but, 'We're gonna take it as far as we can take it, because they absolutely (have) done me wrong,' Nord said before the Thursday hearing.
The hearing was held to determine whether contempt citations -- filed in a state court against six federal agents who seized Nord's marijuana and did not return it -- should be dismissed or granted in federal court.
U.S. District Judge Walker Miller said Thursday that he hoped to rule before the officers are scheduled to appear in Routt County Court on Monday but that he would delay his decision if that state court appearance also could be delayed to give Nord's attorney more time for research.
Nord asked to get his marijuana and growing equipment back through a state court, and when the marijuana was not returned within the time limit set by Routt County Judge James Garrecht, contempt citations were issued for the officers.
Last week, the U.S. Attorney's Office asked that the case for the six officers be removed to federal court and that the contempt citations be dismissed.
Attorney Kristopher Hammond, who is representing Nord, argued that most of the officers involved in the search were not federal agents and therefore should follow state law. The five officers he referred to are Grand, Routt and Moffat Narcotics Enforcement Team officers deputized by the U.S. Drug Enforcement Agency. The sixth officer is a DEA federal agent.
Hammond argued the officers asked for a search warrant through a state judge and so are subject to state rules.
'Your honor, they chose the court,' Hammond said. 'The county court was good enough when they wanted something from the county court, like a search warrant, but now that the county court wants something from them, they take refuge in the federal court.'
Miller said he didn't see how a warrant issued from a state court would take away a federal law's constitutional supremacy over state law.
The other three officers involved in the case are Hayden police officers. Hammond filed a motion to dismiss the contempt citations against those three, who were not represented by the U.S. Attorney's Office, on Thursday morning.
The Hayden officers never were in charge of the marijuana so shouldn't be held responsible for giving it back, Hammond said.
Michael Hegarty, assistant U.S. attorney, said the U.S. Attorney's Office didn't seek out or desire the dispute but had to enter the case because federal officers faced contempt charges for doing their job.
'Everything, your honor, was done here by the letter. It is simply a matter of the supremacy of (federal law over state law),' Hegarty said.
'This is a clear right that a federal officer has,' Hegarty said. 'If he was performing his duties under federal law, he may not be subjected to contempt in a state court.'
The federal and state laws, he continued, are 'in positive conflict with one another.'
Hegarty said that under federal law, marijuana is contraband and that the U.S. government does not return contraband under any circumstances but instead has the right to destroy the drugs at any time.
He also said that Hammond's argument didn't hold true because the officers in question were clearly working '100 percent for the United States government.'
The DEA agent involved in the case is Doug Cortinovis. The GRAMNET officers involved are Dan Kelliher of the Routt County Sheriff's Office, Dwight Murphy of the Steamboat Springs Police Department, Mike Lovin of the Grand County Sheriff's Office, Jenny Hoefner of the Craig Police Department and Todd Reece of the Moffat County Sheriff's Office. All six of those officers are represented by the U.S. Attorney's Office.
Hayden officers whose contempt citations will be dismissed are Chief Jody Lenahan, Ed Corriveau and Darin Falk.
Hammond will contact Miller by noon today, and Miller will either delay the decision or rule before Monday.
At the end of the proceeding, Miller said that if the case turns into a challenge of the Colorado Constitution, formal notification would need to be given to the Colorado Attorney General.
Miller also said that if he decides to remove the case to federal court and considers dismissing contempt charges, then legal representation for the Colorado Constitution and for Routt County Judge Garrecht would need to be dealt with.
Hammond said that if the issue comes to arguing state versus federal law, the case would have to go further.
'If Judge Miller decides the Colorado Constitution violates the United States Constitution, then that's an issue that probably should be decided in the United States Supreme Court and not here.'