Pubdate: Sun, 25 Jan 2004 Source: Auburn Journal (CA) Copyright: 2004 Auburn Journal Contact: http://www.auburnjournal.com/ Details: http://www.mapinc.org/media/530 Author: Ryan McCarthy, Journal Staff Writer Bookmark: http://www.mapinc.org/people/Michael+Baldwin Bookmark: http://www.mapinc.org/kubby.htm (Kubby, Steve) COUNTY TO SEEK LAWSUIT DISMISSAL Placer County will ask a federal judge Monday to dismiss the lawsuit filed by a former Loomis couple over a 1998 search of their home for marijuana -- an event they contend led them to bankruptcy, selling their home and divorcing. Dentist Michael Baldwin, 40, and his former wife, Georgia Chacko, claim deputies used excessive force in the search, an assertion the county denies. Sheriff's deputies said they found 146 marijuana plants at the home. The couple said the marijuana found at their Moss Lane home was legal under Prop. 215, the medical marijuana measure California voters passed in 1996. Deputy county counsel David Huskey said Friday the United States District Court in Sacramento has already dismissed four of eight civil cases filed against the Sheriff's Department marijuana eradication team over searches it conducted. Those dismissals came even though judges see a duty to give plaintiffs every benefit of the doubt so that cases can go before juries, he said. "They're hard to win," Huskey said of dismissals. Oakland attorney Paul Turley, who is representing Baldwin and Chacko, said he expects the request for dismissal to be denied. "Counties in these cases always seek dismissal," Turley said. "I think we're going to prevail." A criminal cultivation charge filed after the search at the Loomis home was dismissed while a mistrial was declared on possession for sales charges when the jury deadlocked. The District Attorney's office did not re-file charges. Baldwin said that within four months of the September 1998 arrest his dental practice in Rocklin no longer had any patients because of negative publicity. He was forced to file bankruptcy, added Baldwin, who said at one time his practice grossed about $500,000 a year. The dentist said he also had to sell his home to avoid foreclosure. Thoroughbred horses on the property were sold as well, Baldwin said, along with pets including exotic birds. Because of his ruined reputation and financial ruin, the marriage deteriorated and ended in divorce, Baldwin said. Deputy county counsel Huskey said, "Those are his allegations. We don't know them to be true." The motion for dismissal addresses only liability, Huskey said. If the federal court finds the county isn't liable for the search, damages claimed by Baldwin in connection with bankruptcy and other matters are not at issue, Huskey said. "The evidence isn't sufficient to state a claim," the deputy county counsel said. Baldwin said that one of the deputies said during the search that, "There is no Prop. 215 in Placer County." Baldwin referred to "hostility to Prop. 215 endemic to the Placer County Sheriff's Department." Deputy Ron Goodpaster stated in a declaration filed last November that Baldwin asserted he had a right to grow more than 100 marijuana plans because of a doctor's recommendation complying with Prop. 215. Goodpaster said he responded, "That might fly in the Bay Area but not here." The comment was intended to let Baldwin know he had violated California marijuana cultivation laws and that officers were not going to just turn around and leave, Goodpaster said. The deputy said he is willing to comply with Prop. 215 but that boundaries of the law were not clear when Baldwin's home was searched. "There is a substantial danger of abuse by persons purporting to cultivate marijuana for medical reasons but actually growing it for sale," Goodpaster added. Deputy Jeff Potter was also involved in the 1998 search of the Loomis home. In a November declaration, Potter said outcomes of jury trials involving Baldwin as well as Steve Kubby, former Libertarian candidate for governor, convinced him it's difficult to convict marijuana growers who have doctor's recommendations for medical use of the drug. "Even if I believe that probable cause exists to arrest the grower for sales because of the number of plants, presence of objects associated with sales and so forth, I am unlikely to arrest unless the District Attorney's Office indicates to me that it will prosecute the case," Potter said. The deputy added that when Baldwin was arrested "I did not then -- and still do not now --believe that 146 plants is consistent with medical use of marijuana." Placer County District Attorney Brad Fenocchio said Friday that many issues are considered when deciding whether to file cases, including what a reasonable jury will do. It may be more difficult now to convict someone possessing substantial amounts of marijuana and doctor's authorization for the drug than it was 10 years ago, the District Attorney said. "That does impact officers," Fenocchio said. "We're going to listen to what officers say on a case-to-case basis." The D.A.'s office considers not just the quantity of the drug but other factors as well -- such as scales, packaging of the drug and other issues normally associated with marijuana dealing, Fenocchio said. - --- MAP posted-by: Richard Lake