Pubdate: Tue, 13 Apr 2010
Source: Calaveras Enterprise (CA)
Copyright: 2010 Calaveras Enterprise
Author: Joel Metzger


Going against its own policy, the Angels Camp Police  Department 
returned several containers of marijuana to  a 21-year-old man in 
February who said he was falsely  accused of possession, 
transportation and sales.

The man lives in Mountain Ranch and asked that his full  name not be 
used, opting to be referred to only as  "Frank." He was pulled over 
by Officer Jim McKeon of  the Angels Camp Police Department Nov. 22 
in the Angels  Town Center parking lot for expired registration on 
his vehicle, according to the police report.

Angels Camp Police Chief Dale Mendenhall said that  Officer Chris 
Johnson arrived on the scene and smelled  the odor of raw marijuana 
and saw some marijuana inside  the car in plain sight.

When asked whether he had marijuana in the car, Frank  told the 
officers that he did and had procured a valid  recommendation from a 
physician that allowed him to  have up to 3 pounds, the report said. 
Frank said that  he did not give the officers permission to search 
his car and denies marijuana being in plain sight, adding  that his 
medicine was sealed inside a scent-proof Mylar  bag.

Frank's car was searched and four individual packages  of marijuana 
were found in his trunk along with a  digital scale and grinder, some 
cash and a flyer  advertising a burgeoning medical marijuana 
collective,  according to Mendenhall.

Calaveras County District Attorney Jeff Tuttle said  that a scale, 
small packages of marijuana, cash and a  pay-owe sheet are all signs 
his prosecutors look for  when determining if an individual is 
selling marijuana.

Frank did have several small glass containers with a  total of 
roughly 3 ounces of marijuana inside, a small  grinder and a digital 
scale, the report said; however,  he did not have a pay-owe sheet or 
large amounts of  cash.

While in the past possession of such items was  incriminating, that 
is no longer the case, according to  Tom Liberty of San Andreas, 
organizer of Calaveras  Patient Resources (a group that shares 
information  about medical marijuana use and makes its goal to ask 
law enforcement to enforce California state law).

As dispensaries became commonplace and marijuana prices  remained 
high, patients began carrying scales with them  to make sure they 
didn't get ripped off, he continued.

He also said that many medical marijuana patients carry  their 
medicine in separate containers because there are  many different 
types of marijuana that have noticeably  different effects.

In the parking lot Nov. 22, Frank was detained without  arrest for 
several hours while officers asked him  questions and waited for 
Detective Steve Avila to  arrive from the Calaveras County Sheriff's 
Office, he  said.

Frank said he told the officers numerous times that he  was a 
legitimate medical marijuana patient, was not a  drug dealer and was 
confused as to why he was being  detained.

Liberty said that well-trained officers should have  been able to 
determine that Frank was a medical patient  and nothing more.

He pointed out what he said were the most obvious  signs: The 
marijuana was stored inside glass containers  instead of plastic 
baggies (the most common way  marijuana is sold on the street); none 
of the marijuana  was pre-weighed for sale; and it is extremely rare 
for  a drug dealer to sell pre-ground pot on the street and  there 
was a grinder with the marijuana in Frank's car.

"Either the police knowingly arrested a person who they  knew was not 
guilty of what they were charging him  with, or they are untrained to 
the point of not being  able to distinguish legal personal use from 
sales,"  Liberty said.

Mendenhall backed up his officers, stating that their  actions were 
appropriate for the situation and adding  that possession of 
marijuana is not legal - Proposition  215 just gives individuals a 
defense and the court will  not prosecute someone who falls under the 
medical marijuana guidelines.

"Generally, in most cases they will not be arrested. If  they are 
meeting the guidelines set forth and the  doctor recommends a certain 
amount and they have that  amount in their possession or close to 
that, it's a  judgment call at that point," he said.

Helping ACPD officers make that judgment call was  Avila, who is 
involved with many marijuana cases in the  county. After Avila 
finished the questioning, Frank was  arrested and booked into the 
Calaveras County Jail,  where he spent two days. The district 
attorney declined  to press charges and Frank was released.

He then, with the help of Calaveras Patient Resources,  initiated the 
process that would ultimately lead to the  unprecedented return of 
his medical marijuana from ACPD  without a court order.

Frank and Liberty both approached Mendenhall to request  that he 
return the marijuana and were told it would not  be done without a court order.

"The very last line of our policy states that no  marijuana will be 
returned without a court order,"  Mendenhall said.

In similar cases, police departments have argued that  marijuana 
cannot be returned because it would violate  federal guidelines 
because they would be returning an  illegal substance.

Liberty said that he researched similar cases and knew  he had the 
law on his side, adding that he was willing  to hire an attorney if necessary.

"What the court found was that federal guidelines  didn't have 
anything to do with anything and to keep  this person's property 
would violate due process,"  Liberty said, "So I knew that Frank had 
a legal right  to his medicine."

Liberty contacted the Angels Camp City Hall on Frank's  behalf and 
his request reached the desk of the city's  legal adviser. After 
reviewing the case, Richard  Matranga recommended that the ACPD 
return Frank's medicine.

Though Mendenhall said he was adamantly opposed to  doing so, he 
relented and followed Matranga's advice.

"He agreed with the D.A., finding that he (Frank) was  within the 
scope (of the) compassionate use act and  that we should return it," 
Mendenhall said. "I disagree  with them. If anybody violated any 
policies, it's me  violating my own policy.

"I only know of one time when we returned the drugs.  This one case 
may be the only case. As a rule, I'm not  going to return the 
marijuana unless you've got a court  order ordering me to do so."

Liberty views the medical marijuana return as a victory  for medical 
marijuana patients in Calaveras County and  said he is pleased to see 
the police department  following the law.

Looking back on the experience, Frank said that he  still can hardly 
believe that his medical marijuana was  returned.

"It was surprising because I really didn't think it  would happen for 
me like that," Frank said. "I feel  like (I'm) not that significant 
in the county; I'm no  one that special. I think that was a pretty 
big thing  being the first one. I hope everybody notices that I  did 
get it back and it wasn't illegal, and I hope  someone learned 
something from this besides me."
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