HTTP/1.0 200 OK Content-Type: text/html County to Seek Lawsuit Dismissal
Pubdate: Sun, 25 Jan 2004
Source: Auburn Journal (CA)
Copyright: 2004 Auburn Journal
Contact:  http://www.auburnjournal.com/
Details: http://www.mapinc.org/media/530
Author: Ryan McCarthy, Journal Staff Writer
Bookmark: http://www.mapinc.org/people/Michael+Baldwin
Bookmark: http://www.mapinc.org/kubby.htm (Kubby, Steve)

COUNTY TO SEEK LAWSUIT DISMISSAL

Placer County will ask a federal judge Monday to dismiss the lawsuit
filed by a former Loomis couple over a 1998 search of their home for
marijuana -- an event they contend led them to bankruptcy, selling
their home and divorcing.

Dentist Michael Baldwin, 40, and his former wife, Georgia Chacko,
claim deputies used excessive force in the search, an assertion the
county denies. Sheriff's deputies said they found 146 marijuana plants
at the home. The couple said the marijuana found at their Moss Lane
home was legal under Prop. 215, the medical marijuana measure
California voters passed in 1996.

Deputy county counsel David Huskey said Friday the United States
District Court in Sacramento has already dismissed four of eight civil
cases filed against the Sheriff's Department marijuana eradication
team over searches it conducted.

Those dismissals came even though judges see a duty to give plaintiffs
every benefit of the doubt so that cases can go before juries, he said.

"They're hard to win," Huskey said of dismissals.

Oakland attorney Paul Turley, who is representing Baldwin and Chacko,
said he expects the request for dismissal to be denied.

"Counties in these cases always seek dismissal," Turley said. "I think
we're going to prevail."

A criminal cultivation charge filed after the search at the Loomis
home was dismissed while a mistrial was declared on possession for
sales charges when the jury deadlocked. The District Attorney's office
did not re-file charges.

Baldwin said that within four months of the September 1998 arrest his
dental practice in Rocklin no longer had any patients because of
negative publicity.

He was forced to file bankruptcy, added Baldwin, who said at one time
his practice grossed about $500,000 a year. The dentist said he also
had to sell his home to avoid foreclosure. Thoroughbred horses on the
property were sold as well, Baldwin said, along with pets including
exotic birds. Because of his ruined reputation and financial ruin, the
marriage deteriorated and ended in divorce, Baldwin said.

Deputy county counsel Huskey said, "Those are his allegations. We
don't know them to be true."

The motion for dismissal addresses only liability, Huskey said. If the
federal court finds the county isn't liable for the search, damages
claimed by Baldwin in connection with bankruptcy and other matters are
not at issue, Huskey said.

"The evidence isn't sufficient to state a claim," the deputy county
counsel said.

Baldwin said that one of the deputies said during the search that,
"There is no Prop. 215 in Placer County." Baldwin referred to
"hostility to Prop. 215 endemic to the Placer County Sheriff's
Department."

Deputy Ron Goodpaster stated in a declaration filed last November that
Baldwin asserted he had a right to grow more than 100 marijuana plans
because of a doctor's recommendation complying with Prop. 215.

Goodpaster said he responded, "That might fly in the Bay Area but not
here."

The comment was intended to let Baldwin know he had violated
California marijuana cultivation laws and that officers were not going
to just turn around and leave, Goodpaster said.

The deputy said he is willing to comply with Prop. 215 but that
boundaries of the law were not clear when Baldwin's home was searched.

"There is a substantial danger of abuse by persons purporting to
cultivate marijuana for medical reasons but actually growing it for
sale," Goodpaster added.

Deputy Jeff Potter was also involved in the 1998 search of the Loomis
home. In a November declaration, Potter said outcomes of jury trials
involving Baldwin as well as Steve Kubby, former Libertarian candidate
for governor, convinced him it's difficult to convict marijuana
growers who have doctor's recommendations for medical use of the drug.

"Even if I believe that probable cause exists to arrest the grower for
sales because of the number of plants, presence of objects associated
with sales and so forth, I am unlikely to arrest unless the District
Attorney's Office indicates to me that it will prosecute the case,"
Potter said.

The deputy added that when Baldwin was arrested "I did not then -- and
still do not now --believe that 146 plants is consistent with medical
use of marijuana."

Placer County District Attorney Brad Fenocchio said Friday that many
issues are considered when deciding whether to file cases, including
what a reasonable jury will do. It may be more difficult now to
convict someone possessing substantial amounts of marijuana and
doctor's authorization for the drug than it was 10 years ago, the
District Attorney said.

"That does impact officers," Fenocchio said. "We're going to listen to
what officers say on a case-to-case basis."

The D.A.'s office considers not just the quantity of the drug but
other factors as well -- such as scales, packaging of the drug and
other issues normally associated with marijuana dealing, Fenocchio
said. 
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