Pubdate: Sat, 09 Jun 2012
Source: Spokesman-Review (Spokane, WA)
Copyright: 2012 The Spokesman-Review
Contact:  http://www.spokesman.com/
Details: http://www.mapinc.org/media/417
Author: Meghann M. Cuniff

GROW HOUSE SEARCH RULED ILLEGAL

Officers Didn't Consider Medical Marijuana Law Change

U.S. District Judge Frem Nielsen's ruling  to suppress all materials 
gathered from a raid of a large marijuana grow house in northwest 
Spokane County  stems from a rewrite of the law approved by 
legislators last year that specifically stated possessing medical 
marijuana was not a crime.

A recent court ruling that deemed a drug raid illegal has raised 
questions about how law enforcement in Spokane County investigate 
marijuana growers.

Sheriff's detectives had reason to believe marijuana was being grown 
at a northwest Spokane County home when they raided it Nov. 2, but 
they didn't have reason to believe the growers were violating the 
state's medical marijuana law  or at least they didn't say they did 
when they got authorization from a local judge to search the home.

A federal judge ruled the search violated Washington's recently 
expanded law governing medicinal marijuana and last week prohibited 
prosecutors from using marijuana plants and other items seized at the 
large grow house.

Now a federal grand jury indictment against five young men, two of 
whom have previous drug convictions, is in limbo, and drug detectives 
in Spokane are wondering how they'll continue investigating marijuana growers.

"We're kind of biding our time to see how this thing turns out," said 
sheriff's Detective Lloyd Hixson, who investigated the case. "We 
probably don't want to spend a whole bunch of energy investigating 
something that's going to get thrown out."

George Trejo, a Yakima-based lawyer who represents one of the men 
charged, said he doesn't believe the government has enough evidence 
to proceed. The ruling by U.S. District Judge Frem Nielsen suppressed 
everything gathered during the search, including statements made by defendants.

The U.S. Attorney's Office has asked Nielsen to reconsider his 
decision. The office did not return phone calls seeking comment this week.

Hixson said he was "floored" by Nielsen's decision and is hopeful it 
will be reversed. He said he and his coworkers are awaiting feedback 
from county prosecutors about how the ruling might affect cases 
prosecuted in state court. If the ruling stands, "It would really 
frustrate our ability to investigate marijuana grows," Hixson said.

The ruling stems from a rewrite of the law approved by legislators 
last year that specifically stated possessing medical marijuana was 
not a crime.

Before then, medical marijuana was considered a defense  law 
enforcement could arrest users and make them prove their case in 
court. That changed in July, but Spokane County sheriff's detectives 
didn't consider that when they raided the home last year, Nielsen ruled.

"The 3-month-old law was clear, and the officers should have been 
aware of its requirements," the judge said.

Two suspects, Jerad J. Kynaston, 23, and Samuel M. Doyle, 25, were 
released from jail last week. Each have previous convictions in 
Oregon for possessing 10 pounds of marijuana and had been in custody 
since a federal grand jury indicted them in February.

Kynaston also was convicted in Spokane County in 2009 for possessing 
5 pounds of marijuana.

Three other suspects, Jayde D. Evans, 24, Brice C. Davis, 25, and 
Tyler S. McKinley, 27, were out of jail awaiting trial. Two others, 
Corey E. Mobley, 29, and Peter M. Magana, 23, pleaded guilty prior to 
the judge's decision to throw out all evidence against them. Magana 
is seeking to be released from jail despite a sentencing scheduled 
for Sept. 12. A judge is set to consider his request June 11.

"Imagine how they feel?" said Trejo, who represents Doyle. "They 
could be pretty screwed unless the government wanted to say, you know 
what, we believe your guilty plea should be set aside. I doubt 
they'll do that."

In court documents, prosecutors argued that the Washington 
Legislature did not intend to change the affirmative defense when 
they rewrote it. In his ruling, Nielsen called that opinion a 
"tortured reading" of the law that contradicts its plain language.

Hixson and other detectives with the Spokane County sheriff's drug 
unit arrested the suspects Nov. 2 during a search at 11900 N. Judkins 
Road, which is west of Newman Lake and east of Forker Road. A news 
release at the time said they seized 8 pounds of harvested marijuana, 
695 marijuana plants and 500 plants that recently had been harvested.

The release noted that medical marijuana provider forms were located 
at the home and that a patient had told sheriff's detectives that he 
contracted with someone at the Judkins Road address to supply him 
medical marijuana, but that the grower was selling it to other people.

It also noted that the state medical marijuana law had recently been 
changed to allow up to 10 people to grow up to 45 plants together. 
But it didn't mention the change in the law that Nielsen ruled is so 
crucial to law enforcement investigations.

Hixson said it's difficult to know whether suspected marijuana grows 
are legal under medical marijuana laws without searching them.

He said the power supply at the Judkins Road home was extraordinarily 
high and showed much more usage than just a 45-plant operation.

But in most cases, "you just don't know that for sure," he said. "It 
depends on how many lights are being used, the quality of the 
lighting" and other factors.

There also isn't a database of authorized medical marijuana users 
that law enforcement can access, he said.

"For 99 percent of our marijuana grows, we just simply wouldn't be 
able to write the warrant anymore," Hixson said. "It kind of ties our hands."
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