Pubdate: Thu, 02 Dec 1999
Source: Seattle Times (WA)
Copyright: 1999 The Seattle Times Company
Author:  Carol M. Ostrom, Seattle Times staff reporter


Local police often hint that federal law still makes possessing marijuana a
crime, despite a state law allowing some patients to smoke and grow it.

But Western Washington's top federal prosecutor, U.S. Attorney Kate
Pflaumer, has told Seattle police that her office is not interested in
busting patients possessing a 60-day supply or less of marijuana.

In a letter written to Seattle police vice and narcotics Cmdr. Tom
Grabicki, Pflaumer said she understood the conflict between state and
federal law had put Seattle police in an "uncomfortable position."

In the spirit of clarifying her office's stance in a "complex and
contradictory area of drug enforcement," Pflaumer wrote, policies already
in place preclude her office from charging qualified medical marijuana
patients under federal law.

"Given our limited funding and overwhelming responsibilities to enforce an
ever larger number of federal offenses, we simply cannot afford to devote
prosecutive resources to cases of this magnitude," she wrote.

"We therefore have no interest in the Seattle Police Department
investigating or forwarding such cases to us."

Pflaumer's letter, written in August, is just now circulating beyond police
circles. And the legal adviser for Seattle police downplayed the letter,
saying it referred to "prosecution standards," not actual federal law.

Since late summer, police, the American Civil Liberties Union and others
have been meeting to try to agree on guidelines to help officers determine
who is a qualified patient and who is not.

A key sticking point has been the definition of what is a "60-day supply"
of marijuana.

Many of the issues confronting police arose following a bust in May of a
West Seattle man who suffers from seizures. The patient, David Means, was
growing dozens of plants in his apartment. But he had documentation from a
doctor and maintained police had entered his apartment illegally.

Although King County prosecutors declined the case, Seattle police refused
to return the marijuana, arguing that an officer returning it to Means
would violate federal law.

But in her letter, Pflaumer told the police that her office would not
prosecute an officer returning marijuana to an owner he believes meets the
"medical marijuana" standards.

Pflaumer also said: "I am assuming an authorized 60-day supply would be
fewer than 250 plants."

Pflaumer, in an interview this week, said the reference to 250 plants does
not imply immunity from federal prosecution for a patient possessing fewer
than 250 plants.

The threshold standards maintained by her office, she said, are "flexible"
and advisory.

"It would be a mistake to say we've given immunity to a certain number of
plants," Pflaumer said. "It depends on the circumstances."

For example, she said, standards for smugglers at the U.S.-Canadian border
are less, and current cases reflect that. Whatever the amount, Pflaumer
added, a legitimate medical marijuana patient "better be prepared to show
that that's what's necessary for one patient."

Normally, fewer than 250 plants would be below the level triggering
interest by her office, a guideline developed before the medical marijuana
law was passed last year.

Pflaumer also discounted police concerns that allowing patients to possess
marijuana could jeopardize federal funding for police of the city.

Her letter was applauded by medical-marijuana advocates.

"I commend her for taking that position," said defense lawyer Jeff
Steinborn. Police often use the excuse of federal intervention in drug
cases, he said.

Dr. Frances Podrebarac, a Seattle medical-marijuana patient who has signed
authorization documents for other patients, said he was pleasantly
surprised by Pflaumer's letter.

"I feel that the Seattle police have been told that they can in good faith
leave patients alone. I think it says that the federal government is not
interested in the police department arresting patients," he said.

But Leo Poort, police legal adviser, said Pflaumer's letter didn't change
much for the department. "No matter what the policy is, I can't change the
fact that it's in violation of federal law."

Poort is one of a number of interested parties attempting to develop
guidelines to help police determine whether a person using or possessing
marijuana is a qualified patient under state law.

An issue that has proved troublesome through several drafts is whether
patients should have to produce some documentation giving police guidelines
as to what a "60-day supply" might be for a given patient.

"Docs would never do that and shouldn't do that, under federal law," said
Jerry Sheehan, legislative director for the ACLU's Washington chapter.

Podrebarac would like to see Seattle adopt standards similar to Oakland,
Calif., where members of a "Medical Marijuana Working Group" recommended
authorities follow the "federal standard" they think has been adopted by
the government, which supplies medical marijuana to a few qualifying patients.

That amount is approximately a half-pound of smokable marijuana per month.
The group recommended patients be allowed to possess a three-month supply
of marijuana, which they said translates into not more than 144 plants.

Poort said the working group here had looked at Oakland's guidelines, but
he said California's law on medical marijuana was too different.

As it stands now, if patients won't produce documents attesting to what
might be considered a reasonable 60-day supply for them, police
encountering a questionable situation are left to rely "on our own
experience and knowledge," Poort said.

Marijuana advocates argue that patients need guidelines so they don't live
in fear of being busted and hauled into court to prove that they qualify
under the law.

"Everyone seems to say they're not interested in putting patients in jail,"
Podrebarac said. "But we're a year out (from passing the state law), and
patients still don't have any rules."
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