During his unsuccessful closing argument in People v. Jovan Jackson, Deputy District Attorney Christian Lindberg stood before the jury and held up a photo of the marijuana impounded from Jackson's dispensary, Answerdam Alternative Care. Blown up to subway-poster size, each gram looked like a brick, when, really, the seized stock weighed just more than two kilos.
Answerdam was one of the first medical-cannabis collectives targeted by the San Diego County Integrated Narcotics Task Force, the cross-jurisdictional law-enforcement detail that has run undercover buys and well-publicized raids of more than a dozen collectives over the last two years. During the summer 2008 “Operation Green Rx” busts, the force impounded 5.2 pounds of pot from Answerdam, a take worth an estimated $25,000.
Now that a jury has cleared Jackson of all criminal marijuana-related charges, Answerdam's 1,650-members might well wonder when they can have their medicine back.
“Obviously, the marijuana is evidence, but it's also legal property,” Jackson's trial lawyer, K. Lance Rogers, said. “A request [for its return] can be made and may be made in this case. Other than that, I'm not going to tip my hand to the prosecution.”
Lindberg said it's up to the judge. Asked whether he would oppose a motion from the defense to return the cannabis, Lindberg answered: “It's sort of hard for me to say hypothetically and I have to see the motion and take a look at the law.”
The DA's office may want to take a look for the pot first.
Lindberg knows where the poster exhibit is; that's propped up against a wall outside his office. The material evidence—the buds themselves—is more elusive. Lindberg told CityBeat that the San Diego Police Department is holding the marijuana. SDPD's spokesperson told CityBeat that it's in the care of the Narcotics Task Force, which ostensibly is part of the San Diego County Sheriff's Department. In turn, the Sheriff's spokesperson told CityBeat that it's in the U.S. Drug Enforcement Administration's custody.
The DEA finally confirmed that its lab is, indeed, maintaining the weed. That could complicate the matter since marijuana, medicinal or otherwise, is still a prohibited narcotic substance under federal law and the DEA isn't in the habit of handing back drugs. It's unclear how the DEA would react to a court order.
“It hasn't happened before,” DEA spokesperson Amy Roderick said
The DEA's policy, Roderick said, is to destroy marijuana evidence after the case concludes—no judge ruling or order necessary. (Jackson still has a sentencing hearing in January for possession of ecstasy and the anti-anxiety drug Xanax, which were found in his home during the raids.)
Americans for Safe Access (ASA) staff attorney Joseph Elford said that, in theory, the marijuana is still in the custody of the state court and subject to the judge's ruling, regardless of which agency is physically handling it. The DEA doesn't see it that way.
“Even though it's evidence in a state case, it is maintained in the DEA lab, so we would handle it just like we hand any other thing submitted to the lab,” Roderick said “When all the court proceedings are finished, it would be destroyed.”
ASA has won two landmark decisions on the return of impounded medical cannabis, but so far, these cases have involved only individuals and a seven-member collective, nothing nearly as large as Answerdam. In Elford's experience, a not-guilty verdict isn't enough to warrant the release of the weed; the legal standard is whether or not the police had probable cause.
Elford gave the example of an individual caught with an ounce: “Once he shows his doctor's recommendation, there's no longer probable cause, so the court would be required to give his marijuana back,” he said.
With cannabis dispensaries, there's nothing as clear cut as a recommendation or license to establish legitimacy under California law. Indeed, after finding Jackson not guilty on the marijuana charges, the jury foreman told reporters that the laws weren't clear enough to determine whether Jackson had broken any beyond a reasonable doubt.
“That's where the kicker comes in,” Elford said. Jackson “can move for the return of his property, and I expect he'll do that, but a judge, without directly disagreeing with the verdict, could find that there was probable cause to believe the defendant committed a crime.”
In that event, the judge could order the pot held indefinitely or destroyed.
At the heart of the issue is the Constitutional protection against unreasonable search and seizure. If Jackson does decide to push forward, his attorney may build upon the current challenge against the Task Force's probable-cause affidavits filed in federal court.
Defense attorneys for James Dean Stacy, who operated the Movement in Action collective in Vista, are asking the U.S. District Court to suppress evidence turned up when the dispensary was raided, along with 13 others, on Sept. 9, 2009. In a motion filed in November, Stacy argues that the probable-cause affidavit used to obtain search and arrest warrants was rife with “omissions and misrepresentations” in violation of the Fourth Amendment. The court will hold a motion hearing on the issue on Dec. 18.
CityBeat reported in late October on the probable-cause affidavits and how covert officers did not unearth any evidence that the dispensaries were providing marijuana to non-patients. Instead, the affidavits relied on consumer reviews of dispensaries posted at Weedmaps.com to argue that the dispensaries broke the law. The users' reviews allegedly showed that people went to the dispensaries “merely to purchase high-quality marijuana and not to participate in some sort of collective marijuana cultivation.”
In Stacy's case, a DEA officer filed the affidavit based on undercover work conducted by sheriff's deputies. Stacy says the officer repeatedly referred to MIA as an “illegal marijuana business” in the affidavit without presenting facts to explain how Stacy violated California law. Further, Stacy argues that it was “clearly a misrepresentation” when the officer connected patient reviews on Weedmaps to illegal drug trafficking.
“The affiant repeatedly phrases his opinions as factual conclusion in an attempt to persuade the Magistrate that Movement in Action collective was not in compliance with state laws regarding medical marijuana,” Stacy's lawyer, Kasha Castillo of Federal Defenders of San Diego, writes in the motion.
The U.S. Attorney's Office for the Southern District of California, which is prosecuting the Stacy case, said in its filed response that none of that is relevant since there is no such thing as medical marijuana under federal law.
However, the argument may be relevant in state court. The state affidavits contain much of the same structure and phrasing—as if copied and pasted—as the federal ones.
Defendants in other cases watched Jackson's case closely, since it was the first to go to trial. At this point, the marijuana seized from Answerdam is now well more than a year old.
“The THC level of the marijuana is probably close to zero because of how long it's been,” the DEA's Roderick said. “I don't know if they would have any interest in petitioning the court to get it back. There's nothing in it. The THC decreases.”
If the pot isn't usable or, worse, been destroyed, Elford said taxpayers, in theory, could be ordered to reimburse Answerdam the whole $25,000. But Eugene Davidovich, a medical-cannabis patient and a San Diego dispensary owner also facing criminal charges, said the DEA doesn't know its dope. The quality depends on where it's being kept.
“Medical cannabis can, if properly stored, last for as long as two to three years,” Davidovich said. “If concentrates were returned, such as oils, that would be fine, and I would have no problem consuming it. The actual cannabis flower may be a little too dry, but it would not be any less potent or medicinal.”
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