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MEDICAL MARIJUANA LAW IRRELEVANT TO DECISION ON WHETHER TO ISSUE SEARCH WARRANT--C.A.

Police seeking a warrant to search for evidence of the illegal possession and cultivation of marijuana need not inquire into whether the substance is being possessed or grown for medical purposes, this district's Court of Appeal ruled yesterday.

Div.  Five upheld Reece J.  Clark's convictions of possession of cocaine and a short-barreled shotgun.  Clark pled guilty to the charges, but obtained a certificate of probable cause allowing him to appeal based on the denial of his motion to suppress.

Los Angeles Superior Court Judge Dorothy Shubin had denied the motion to bar prosecutors from using evidence seized when police executed a search warrant at the defendant's Pasadena residence.  The warrant had been issued on the basis of a deputy sheriff's affidavit declaring that a reliable confidential informant had told the deputy of a marijuana growing operation being conducted in the defendant's garage; that the deputy and two colleagues had conducted surveillance, smelled unburnt marijuana outside the residence, and had observed activity normally associated with commercial marijuana growing; that the defendant had a criminal record; and that two vehicles observed at the house were registered to defendant.

Seized pursuant to the warrant were large quantities of marijuana and related paraphernalia, along with cocaine and a short-barreled shotgun.  After his motion to suppress was denied, Clark pled guilty to the cocaine and gun charges in exchange for dismissal of the remaining counts and a sentence of probation.

Justice Richard Mosk, writing for the Court of Appeal, rejected the defense argument that the warrant was invalid because the deputy did not relate any effort to determine whether the marijuana being grown by defendant was intended for medical use, as permitted by Proposition 215, the Compassionate Use Act.

The justice rejected the defendant's reliance on People v.  Mower ( 2002 ) 28 Cal.4th 457, holding that a defendant charged with a marijuana-related claim may, by pretrial motion to dismiss, present a limited immunity defense under Proposition 215.  Mosk cited Mower's holding that the initiative "does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest."

Mosk explained:

"The holding in Mower...does not state or imply that law enforcement officers seeking a search warrant have an affirmative duty to investigate a suspect's status as a qualified patient or primary caregiver under the Compassionate Use Act prior to requesting that a warrant issue.

"To the contrary, Mower makes clear that, although the Compassionate Use Act provides a defense at trial or a basis to move to set aside the indictment or information prior to trial, it does not shield a person suspected of possessing or cultivating marijuana from an investigation or arrest.  Therefore, given the holding in Mower, that Act cannot be interpreted to impose an affirmative duty on law enforcement officers to investigate a suspect's status as a qualified patient or primary caregiver under the Act prior to seeking a search warrant."

Attorneys on appeal were Julie Schumer, by appointment, for the defendant and Deputy Attorneys General Mary Sanchez and Garett A.  Gorlitsky for the prosecution.

The case is People v.  Clark, 14 S.O.S.  4489.