Pubdate: Sat, 5 Apr 2008
Source: Desert Sun, The (Palm Springs, CA)
Copyright: 2008 The Desert Sun
Contact: http://local2.thedesertsun.com/mailer/opinionwrap.php
Website: http://www.thedesertsun.com/
Details: http://www.mapinc.org/media/1112
Note: Does not accept LTEs from outside circulation area.
Author: Amy Blaisdell, City News Service
Bookmark: http://www.mapinc.org/topic/Proposition+215
Bookmark: http://www.mapinc.org/topic/Senate+Bill+420
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

MARIJUANA DISPENSARY SCORES VICTORY IN COURT

Judge Rules Search Warrant Served on CannaHelp Invalid; D.A. to Appeal

The criminal case against the owner and managers of a Palm Desert 
medical marijuana dispensary was dealt a setback Friday when a judge 
invalidated the search warrant used to investigate the defendants.

Prosecutors said they will appeal the ruling.

If the ruling is not overturned, the case will likely be dismissed 
for lack of evidence.

CannaHelp owner Stacy Hochanadel and his managers, James Campbell and 
John Bednar, all 31, were arrested in December 2006 and charged with 
felony possession of marijuana for sale, transport and sale of 
marijuana and keeping a place to sell controlled substances.

Marijuana and financial records were seized at CannaHelp, 73-359 El 
Paseo, in December 2006 during a raid by the Riverside County 
Sheriff's Department.

Riverside County Superior Court Judge David B. Downing said he looked 
at the facts carefully and concluded the three defendants were in 
compliance with the state's Compassionate Use Act, and that they were 
operating a "legitimate business."

He further concluded that the affidavit in support of the search 
warrant was flawed because Robert Garcia, the sheriff's investigator 
who prepared it - although familiar with drug cases - was not 
adequately trained in handling medical marijuana cases.

"He made mistakes in the affidavit the problem was he didn't have a 
clue about the Compassionate Use Act," Downing said.

He noted that police see people dealing drugs every day but rarely 
deal with medical marijuana.

He also said Garcia wrongly asserted the dispensary had made a $1.6 
million profit because the investigator admitted under 
cross-examination that most of the money was used to buy more pot.

Downing, who said he fully expected prosecutors to file an appeal, 
scheduled a May 5 hearing, when prosecutors are expected to announce 
their next steps.

Supervising Deputy District Attorney Richard Cookson said his office 
disagreed with the judge's ruling and will file an appeal with the 
4th District Court of Appeals in Riverside.

"The court's ruling was wrong because the judge moved out of the 
motion itself," Cookson said.

He said he believed the judge should have been limited to the 
affidavit itself and should not have referred to the preliminary 
hearing transcript.

"We believe it was an erroneous ruling and we will be aggressively 
appealing his decision," said Michael Jeandron, a spokesman for the 
Riverside County District Attorney's Office.

Outside court, Hochanadel's attorney, Ulrich McNulty, said his client 
was grateful for the judge's careful attention to the case and noted 
the ruling made clear that law enforcement need to approach medical 
marijuana cases differently.

"The sheriff's department approached this like a regular drug case 
and they had no training on how to differentiate what is lawful or 
unlawful," the attorney said.

The defendants contend they were running a legal medical marijuana 
dispensary under Proposition 215 and Senate Bill 420. Under 
California law, marijuana can be sold on a not-for-profit basis to 
patients with a doctor's prescription, although it is illegal under 
federal law.

During December's preliminary hearing to determine if there was 
enough evidence to order the defendants to stand trial, Garcia 
testified that an undercover officer twice purchased medical 
marijuana on the premises for what he said was a back problem.

But he also said CannaHelp tried to comply with the law and that the 
dispensary refused to sell to the first undercover officer who tried 
to purchase marijuana because employees could not verify his doctor's 
prescription.

He also conceded the defendants never tried to hide their business 
from law enforcement and it would be unfair to compare them to 
street-level drug dealers.

The three defendants have been allowed to remain free on their own 
recognizance on the condition they do not obtain marijuana in excess 
of what the law allows.

All three men are medical marijuana cardholders with prescriptions 
for the drug.

They also cannot sell the drug or provide it to patients in a 
care-giving capacity.

If convicted, the three men could face as much as two years in 
prison, prosecutors said. 
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