Medical marijuana patient sues over plants

December 09, 2004

Henry K. Lee, San Francisco Chronicle

A medicinal marijuana user busted for growing pot sued the city of Emeryville on Thursday, saying police refused to return his seized plants -- and later told him that thieves stole much of his property from a secured storage site.

James Blair, 45, of Emeryville, said he found it ironic that the same plants that had been taken away from him a year ago could have fallen into the wrong hands.

'What they've done, effectively, is taken a controlled substance and made it available in an uncontrolled way to some members of the public,' Blair said.

'Their role is to keep drugs out of the hands of people who aren't supposed to have them.'

The lawsuit, filed in Alameda County Superior Court in Oakland, asks for a court injunction that would prohibit Emeryville police from 'continuing to violate the statutory and constitutional rights of qualified medical marijuana patients' under state law.

In 1996, California voters approved Proposition 215, which allows the use of marijuana for medical purposes with a doctor's recommendation.

The suit names the city of Emeryville, the police department and Sgt. LaJuan Collier, who led the investigation. Collier declined comment on the suit Thursday, as did City Attorney Michael Biddle and Police Chief Ken James.

But James confirmed that thieves broke into the city's Public Works storage building on Horton Street in January or February, cutting off locks from cages and making off with $35,000 in evidence from a number of cases, including some of Blair's property.

Also stolen were chain saws, pressure washers, generators and other equipment, the chief said. Investigators had suspected it was an inside job because the thieves had the access codes for the site. No arrests have been made.

In November 2003, the manager of Blair's apartment complex smelled a pungent odor coming from his unit while showing a nearby unit to a renter, court records show. The manager said he earned a degree in forestry from Humboldt State University and recognized the smell to be marijuana, documents say.

The manager entered the unit and found a locked room designed to grow marijuana. Police served a search warrant on Dec. 9, 2003, seizing 30 full- grown plants and equipment that included grow lamps, pH meters, air filters, timers and pumps, records show.

One officer 'tore a copy of the physician's recommendation from the wall of the grow room, crumpled it into a ball and threw it on the floor,' the suit said.

Blair said he uses 'a couple of grams' of marijuana each day to alleviate symptoms from a neck injury incurred in a 1994 diving accident in Belize.

He was charged with cultivation and possession of marijuana for sale, but the charges were dropped in February because of insufficient evidence and 'in the interest of justice' after his attorney and physician told prosecutors that he was a medical marijuana patient, records show.

After a judge issued a court order in April for the return of his property, Blair presented it to police but was rebuffed, the lawsuit said. He received a letter in June notifying him of the break-in.

In September, Blair received 'a fraction' of the seized plants. 'The plants had deteriorated, with the buds cut from them and were unusable,' the suit said.

Blair's attorney, Joseph Elford of Americans for Safe Access, a national advocacy group based in Berkeley, said his client is among many medical marijuana users who have to fight to reclaim their plants. 'If the police would just leave these people alone, the marijuana wouldn't be used for reasons the police are concerned about,' Elford said.

E-mail Henry K. Lee at hlee@sfchronicle.com.



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