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Medical cannabis patient Jason Lujan and two co-defendant members of Higher Love Delivery Service, a non-profit medical marijuana collective, were in court Tuesday and Friday before Judge Louis Hanoian for their preliminary examination in the downtown San Diego Courthouse. The three are charged with felony manufacturing of concentrated cannabis and have signed a conflict waiver so they will be tried to together with one defense attorney.

Before the preliminary exam began, defense counsel Nathan Shaman argued several motions to challenge the search warrant used in the case – a warrant which led to a SWAT-style raid on the Poway home of Jason and the other collective member defendants.  The search warrant, according to San Diego Sheriff Deputy Robert Nicklo who obtained it, began with an investigation stemming from a “concerned citizen’s” report of cannabis being grown at the home. Yet, there was no discovery provided on the identity or statement from the citizen.  Also used against the defendants was their San Diego Gas and Electric bill, which was compared to other homes in the area and found to be higher.  The defense’s position in challenging the search warrant was that the magistrate who signed the warrant should have been the individual forming the opinion of probable cause to search and not the Deputy who wrote the affidavit and requested to raid the home.

It was also revealed in court that Deputy Nicklo pulled Jason over in his car for “intermittent brake light failure” a few weeks before he requested the search warrant. During the stop, Nicklo observed a “marijuana bracelet” on Jason’s wrist. It is apparent that the investigation stemmed from this traffic stop and the deputy himself formed the opinion of probable cause. But, Judge Hanoian denied all motions to quash the search warrant and the preliminary exam moved forward.

San Diego District Attorney Bonnie Dumanis assigned her top narcotic prosecutor, Steve Walter, to try this case, likely due to the crushing defeats the office has experienced in past years by Deputy DA underlings. On hand in the back of the courtroom was Walter subordinate Deborah LaTouche, a Deputy District Attorney who has been reprimanded by judges in recent cases for refusing to review exculpatory evidence and failing to assess the public safety value of medical marijuana cases she’s brought to the courts.

However, the support enjoyed by the defense far outweighed the numbers on the prosecutor side of the room.  Jason’s entire family was there for the proceedings, and it was encouraging to see rows full of people standing with Jason and his two friends.

Prosecutor Walter’s first witness in the preliminary exam was Frank Haskell, a Sheriff Deputy cross sworn as a Narcotic Task Force officer, who testified to finding jars of medical cannabis, cannabis plants, concentrated cannabis and what he called evidence of a “butane hash oil” (BHO) lab.  In his cross of Haskell, Nathan Shaman was able to determine the deputy had relied only upon statements from “other” officers to identify evidence of BHO manufacturing. Mr. Shaman also questioned whether it was possible to identify concentrated cannabis extracted with butane from concentrates extracted with more benign solvents such as water.  The answer was no.  It became apparent through the deputy’s testimony that the only evidence there was that butane was used in the extraction process were cans of butane present at the scene.  Also revealed in the defense cross was the fact there were a surplus of lighters and torches at the home which also use butane and therefore explained the canisters.

Steve Walter called DEA chemist Michael Johns, who in his cross examination stated he also relied only on the presence of butane cans to conclude there was a BHO lab.

Walter next called Deputy Robert Nicklo, the investigating officer who questioned and recorded the three defendants at their home during the raid.  Nathan Shaman had issue with portions of the testimony offered because there were concerns as to whether the three defendants had been questioned after exercising their right to remain silent. Mr. Shaman attempted to get parts of the Deputy’s testimony excluded, but Judge Hanoian ruled against the exclusion of the testimony.

In his closing argument, Nathan Shaman referred to People v Bergen, case law which holds that concentrated cannabis may be lawful if certain solvents are used to extract the Tetrahydrocannabinol (THC).  Mr. Shaman asserted that the prosecution was required to prove butane was used in the extraction process to qualify for a violation of 11379.6a, the penal code section that, except as otherwise provided by law (such as the Compassionate Use Act), makes concentrated cannabis illegal. Since the prosecution did not prove the use of butane, Mr. Shaman maintained the defendants should not be bound for trial on that charge.

Unfortunately, as is typical of San Diego judges, Hanoian disagreed, and the trio of qualified medical cannabis patients will face trial on charges of manufacturing concentrated cannabis. Arraignment is set for January 16, 2014, where the trial date will be set.

A note from Higher Love Collective:

We appreciate those of you who come to our court hearings to show support for us, safe access and all of the people currently fighting for their freedom of natural medicine.

Jason and the Higher Love collective are more victims of Bonnie Dumanis’ political agenda to assist the DEA in eradicating medical cannabis from San Diego.  Dumanis squanders precious resources sending a message not about public safety but about her politics.  Law enforcement groups are so concerned with this misuse of office most have refused to back her re-election campaign.

For more information, please contact San Diego Americans for Safe Access Court Support Coordinator, Terrie Best at [email protected] and visit Higher Love’s website at http://www.poweredbylove.org/higherlove/hl-news/.

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This blog post originally appeared on the San Diego Safe Access Blog.