Pubdate: Thu, 21 Jul 2011
Source: Union, The (Grass Valley, CA)
Copyright: 2011 The Union
Author: Liz Kellar


A pot grower raided by Nevada County's narcotics task force has lost 
a federal lawsuit against the county.

Jon-Cory Schmidt sued the county and the Sheriff's Office alleging 
his due process and equal protections rights had been violated, after 
a raid on his medical marijuana grow in September 2009. The case, 
which was filed in U.S. District Court in Sacramento in October 2010, 
was dismissed Tuesday.

Schmidt alleged that he was in lawful possession of medical cannabis 
under medical recommendations issued by licensed California 
physicians at the time of the raid, that he had had a scrip for 
marijuana since 1998 and had been growing medical marijuana on that 
property since 2004. He said in the complaint that he was cultivating 
a collaborative garden in the 15000 block of Long Point Road that 
contained 80 immature marijuana plants on the day of the raid.

The suit alleged that after obtaining a search warrant, members of 
the Narcotics Task Force and a federal agent raided the property on 
Sept. 22, 2009, illegally cutting and seizing the marijuana plants. 
The deputies also allegedly took 10 pounds of marijuana, shake and 
cola, as well as a handgun and other items.

According to Schmidt's complaint, he was not present at the time of 
the raid and therefore could not challenge the seizure.

After the marijuana was seized, no criminal charges were ever filed, 
the suit alleged. Schmidt filed a motion for return of the pot, but 
the motion was denied in Nevada County Superior Court in December 
2009. According to Schmidt's complaint, the judge noted that he had 
the burden of proof to establish the lawful possession and ownership 
of the medical marijuana and that he failed to meet that burden of proof.

Schmidt tried to have the denial vacated, but his writ was denied in 
May 2010. He also submitted a tort claim against the county in March 
2010, which was denied.

U.S. District Judge Frank C. Damrell Jr. dismissed Schmidt's 
complaint Tuesday, ruling that under federal law, it is "illegal for 
any private person to possess marijuana. Thus, under federal law, 
marijuana is contraband per se, which means that no person can have a 
legal interest in it.

"In this case, plaintiff cannot recover damages because of the 
confiscation or destruction of marijuana because he had no ... 
property interest in the marijuana," Damrell wrote, pointing to the 
fact that California courts had twice ruled he was not in lawful 
possession of the marijuana.

Damrell also ruled there is no constitutionally protected right to 
challenge the application for a search warrant before it is issued, 
and that the failure to file criminal charges was not a violation of 
Schmidt's due process rights.

"The decision was based on federal law that holds a person cannot be 
in lawful possession of marijuana, despite state law to the 
contrary," said Schmidt's attorney, R. Ellis Harper. "He clearly 
usurps state law. Basically, he is saying legally, you can't possess 

Harper said the presence of a federal agent during the raid might 
have swayed Damrell's ruling.

"One of the issues was that the drug task force had a federal 
operative involved (in the raid), and the federal agent directed the 
seizure and destruction of the marijuana," Harper explained. "It 
wasn't solely a county decision."

Harper called Damrell's decision "unfortunate," emphasizing that 
Schmidt was never prosecuted. Harper said the local courts' decision 
to rule that Schmidt was not in lawful possession of the marijuana 
was "clearly wrong."

Harper didn't anticipate Schmidt would appeal, saying, "It is a 
fairly definitive ruling."

County counsel Michael Jamison did not return calls for comment.
- ---
MAP posted-by: Keith Brilhart