Pubdate: Fri, 01 Sep 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Contact:  P.O.Box 15779, Sacramento CA 95852
Author: Wayne Wilson, Bee Staff Writer


A judge in Placer County Superior Court ruled Thursday that investigators 
had a right to peer through Steven and Michele Kubbys' windows on private land.

He refused to dismiss drug charges against the pair.

Jurors who were scheduled to hear opening statements earlier this week in 
the medical marijuana trial of Steven and Michele Kubby have been told to 
wait until next Wednesday to report for duty.

A dispute erupted Wednesday over a recent California Supreme Court decision 
that, if applied to the Kubby case by Judge John L. Cosgrove, could have 
resulted in dismissal.

The defense asked Judge Cosgrove to re-examine the constitutionality of the 
search that led to the Kubbys1 arrest in light of the Supreme Court1s 
"Camacho" decision, and the judge, over the prosecution1s objections, 
agreed to do so.

The Kubbys claim their right to privacy was violated by police, who 
gathered on a hill in a forest at the rear of their Squaw Valley home and 
peered in the windows to obtain information used to obtain a search warrant.

Cosgrove ordered an evidentiary hearing on the matter.

At issue was the contention that the police had no legal right to be where 
they were when they looked through the Kubbys1 windows.

The "Camacho" ruling, issued July 22, reversed the conviction of a man 
arrested by police who "looked through a window and observed defendant 
packaging cocaine in his home."

Because they were trespassing in the man1s side yard, "a place they had no 
legal right to be," their observations and subsequent actions violated 
Camacho1s Fourth Amendment right to be free of unreasonable searches and 
seizures, the high court ruled.

"Although the line we draw today lets an unquestionably guilty man go 
free," the justices wrote, "constitutional lines have to be drawn  (and) 
constitutional lines are the price of constitutional government."

In the Kubby case, Placer County authorities obtained a search warrant 
based on nighttime observations made by officers peering through a rear 
window of the Kubby home from their vantage point on adjoining property.

An affidavit filed by sheriff1s Deputy Michael Lyke, a member of the North 
Lake Tahoe Narcotics Task Force, declared that officers "believed" the 
property next to the Kubbys1 was U.S. Forest Service land.

On Wednesday Lyke testified that the basis for that belief was something an 
area firefighter told him.

But it turns out that the parcel is private property owned by the Poulsen 
Foundation and administered by Plumas County District Attorney James 
Reichle, defense attorney J. David Nick informed the judge.

According to Nick, detectives could have and should have ascertained the 
property1s ownership at the same time they verified the residency of the 
Kubbys through records in the assessor1s office.

By spying on the Kubbys in the middle of the night after trespassing on 
private property next door, the police violated Steve and Michele Kubby1s 
right to the expectation of privacy, Nick said.

Deputy District Attorney Christopher M. Cattran argued that the officer1s 
"belief" that he and the other investigators were on Forest Service land 
did not constitute a "purposeful misleading of the magistrate."

Steve Kubby, 53, a former Libertarian candidate for governor, was a leader 
in the campaign that led to passage of Proposition 215, the initiative 
legalizing the medical use of marijuana by ill Californians.

He and his wife, Michele, 34, face trial on two counts of conspiracy, 
possession of marijuana for sale, cultivation, and possession of various 
other controlled substances and ingestion devices.

Both had marijuana use recommendations from doctors at the time of their 
arrest on Jan. 19, 1999.
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