Post on 02-Jun-2018
transcript
8/11/2019 CNOA Newsletter on MMJ
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8/11/2019 CNOA Newsletter on MMJ
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CASE LAW UPDATE AND
STREET CONTACT INTERVIEW TECHNIQUESSeth C imino, Police Officer, Citrus Heights Police Department
Recently CNOA asked me to
write a follow-up article to my
widely popular (insert laugh
ter here) article Initial Co ntacts With
Persons Claiming Protections U nder Cali
fornias Medical Marijuana Laws and Stat
utes, which appeared in the Spring 2012
edition of the California Narcotic Officer
magazine. In all seriousness, I am very
honored and excited to have been asked to
share more marijuana investigation infor
mation w ith you folks.
Over the last few years there has been
some defining case law that has helped
law enforcement interpret and enforce the
California Health and Safety Code as it
pertains to Proposition 215 (the Compas
sionate Use Act) and Senate Bill 420 (the
Medical Marijuana Program Act).
Listed below are three cases that have
dramatically affected the way we conduct
our initial investigations concerning people
claiming Prop. 215 privileges who are pos
sessing, cultivating and transporting mari
juana. The appe llate court d ec ision s in these
cases have helped narrow the scope o f what
is reasonable involving possession, culti
vation and transportation.
These case decisions directly affect us
on the front lines, as we are the ones who
are going to be making initial contact with
these subjects during our day-to-day as
signments and calls for service.
Knowing the ins and ou ts of what
these cases say and the proper question s
to ask during the interview pro cess are
essential for our investigations. Also,
detectives may be following up with the
case, depending on the seriousness and
amount of marijuana found, and it is im
portant to make sure weve done as thor
ough a job as possible.
I frequently receive phone calls and
emails from law enforcem ent officers
and district attorneys througho ut the
state, requesting assistance in dealing
with cases invo lving marijuana where the
suspect claims Prop. 215 privileges. One
of the first questions I ask after receiving
the details of the case is, Were you able
to cond uct an interview of the suspect?,
and if so, What were his/her answers to
questions regarding their use, possession
and cultivation of marijuana? Unfortunately, sometimes Im told the officers
conducting the interviews did not ask
some very pertinent questions. Without
knowing certain things about a quali
fied patie nts use, pos sessio n and cu ltiva
tion of marijuana, it makes it very dif
ficult in court for officers and the DA to
show the defendant was operating outside
of the sco pe and g uidelines o f the law.
Following the case briefs and analy
sis portion of this article, I will discuss
some initial questions officers really need
to ask subjects to help lock them into a
statement. We can then use their answers
throughout our investigation. Do the
answers they give meet the reasonable
ness standard set forth in People v. Trip-
p e t (1997)? Many times people who are
criminally profiting from the cultivation
and sale of marijuana will try to reverse
engineer their statements to what their
defense attorney believes will help them
muddy the waters in court. The initial
statements we get from these subjects be
come even more important for use at that
time. All right, lets get to it.
People v. Waytnan (2010)
> CHP traffic stop and arrest for
23152(a) and (b)
> Wayman also had a Prop. 215 do c
tors recomm enda tion and $117 cash
on his person.
> During a search of the vehicle, 1
gram of marijuana and $120 cash
were found.
> Dur ing a search of the trunk, a back
pack was found. Inside were 26 bag
gies of marijuana labeled 3.5 grams,five baggies o f 5 grams o f marijuana,
14 small bottles o f concentrated can
nabis, 14 small metal screens', five
empty Ziploc bags and a scale.
> Wayman testified that his marijuana
consum ption varies with the extent of
his back pain.
> He said he purchased the marijuana
for about $2,000 from a dispensary a
few days before his arrest and that he
kept the marijuana in his vehicle to
appease his mother.
> The prosecu tor in the case stated that
the Compassionate Use Act (CUA)
did not provide a defense to the
transportation charge in this case, be
cause Wayman was not transporting
the marijuana in his car for medical
purposes at the time he was pulled
over; rather, he was just storing it in
his vehicle for use sometime in the
future.
> The court instr ucted the jury that
the a mount of marijuana transported
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must be reasonably related to the pa
tients current medical needs.
> The jury also needed to consider
whether the method, timing and dis
tance o f transportation were reason
ably related to the pa tien ts current
medical needs.
> Wayman was convicted of transpor
tation of marijuana' and two misde
meanor charges and was sentenced
to 180 days in jail and probation. He
appealed his conviction.
> The appellate court held that the
CUA, by its terms, provides immu
nity from criminal liability only when
a qualified patient transports mari
juana for hi s or her ow n person al
medical use. (11362.765[b][l] HS)
This case has made it very clear for
us, as investigating officers, how much
marijuana a person can transport in a
vehic le. The standard is whats reaso n
ably related to their current medical needs
based on the method of transport, the
timing o f the transport and the distance
of the transport. Im sure that makes it as
clear as mud for you. L ets now bre ak this
down using precise and clear questions
regarding the qualified patients poss es
sion during our traffic stop. We are going
to want to find out some important details
that are going to help us determine what
is reasonable.1. Ho w much marijuana are they trans
porting (or is in their possession)?
2. Ho w much marijuana do they use on
a daily basis?
3. Ho w long are they going to be on
their current trip? (D aytrip, errands,
weekend camping, one w eek at a
frien ds house , etc.)
So lets take these quest ions and go
through a mock T-stop scenario. You stop
someone and they claim Prop. 215 privi
leges. They tell you they have, or yo u find
during your contact, 6 grams of marijuana
in the car. (Remember, you can search
the vehicle based on the vehicle excep
tion rule to a search warrant and probable
cause, because the person tells you, or you
smell or see, that there is marijuana in the
car). The person next states they use
3 grams a day to medicate themselves and
are going to be gone on a two-day trip.
Okay, lets do the math her e. Three gram s
per day times two days equals 6 grams.
Based on the information you obtained
and case law, this possession and trans
portation would be within the guidelines
of state laws per Prop. 215/SB 420.
Now, if during your contact with this
person you discover they are possessing
and transporting 5 ounces, and they state
they only use 3 grams a day and are going
to be gone from hom e for two days, then
they are possessing way too much mari
juana for the po ssessio n to be c on sid ered
reasonable for their current medical needs
based on time, m ethod and distance. A per
son possessing or transporting marijuana
outside the scope of reasonableness is sub
jec t to arrest and seizure o f the ir marijuana .
Peoplev. Waxier (2014)
> Del Nor te Sheriffs Deputy Griffin
and a co-worker contacted Waxier
in a parked car. He was suspected of
illegal dumping.
> Deputies could smell the odor of burnt
marijuana emanating from the vehicle.
> Dep uties saw a marijuana pipe on the
seat of the car with burnt marijuana
in the bowl of the pipe.
> Deputies condu cted a search of the
vehicle.
> Waxier presented Depu ty Griffin with
a current 215 recom mendation dur
ing a search of his vehicle.
> Depu ties found meth and a meth
pipe in the car. Waxier admitted the
meth was his. Waxier was arrested for
11377, 11364 and 11379 HS.
> Deputy Griffin testified to continuing
the search because he did no t know
how much marijuana was in the car
until he searched it, to determine if
the marijuana was within compliance
of C alifornias med ical m arijuana law.
Griffin added that suspects often use
the 215 defense to hide other mari
ju an a cr im in al activities .
The people argued Deputy Griffin
had probable cause to search the
appellan ts vehicle after observing
an odor of marijuana. They also
contend ed the CUA does not provide
immunity from arrest or criminal
prosecution, and that possession of
a 215 card is an affirmative defense
to the crimes of possession and
cultivation of marijuana at trial and
does not protect one from a valid
search nor arrest."
The appellant claimed Deputy
Griffins observa tion o f marijuana in
the truck could not have supported
an a r r e s t beca use posses s ion o f up
to 28.5 grams of marijuana is an
infraction under Section 11357.
Finally, the appellant argued the
possession of personal-use m edical
marijuana was legal with his do ctor s
recommendation.
Waxier was convicted o f 11377 HS.
He appealed his conviction stating
the deputies did not have probable
cause to believe he possessed more
than 1 ounce o f marijuana or that he
was under the influence of marijuana.
Also, his Prop. 215 recommendation
should have nullified the search.
In affirming the trial court's decisio n,
the appellate court stated the search
continued on page S
SUMMER 2014
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continued from page 7
was good. Based on smell alone, an
officer cannot know how much m ari
juana is in a v eh icle unt il th ey sea rch
it. The vehicle exception to the search
warrant rule still applies.
Waxlers possession of a valid recom
mendation did not trump the deputies
probable cause to search his vehicle pu rsu
ant to the automobile exception rule. It
wasnt until after the deputies started their
search that he provided them with his valid
recommendation.
Also, Prop. 215 is not a shield from
reasonable investigation. An officer with
probable cause to search is not prevented
from doing so by someone presenting a
medical marijuana card or a marijuana
prescription. Given the probable cause here, the officer is entitled to continue
to search and investigate, and determine
whether the subject of the investigation
is in fact possessing the marijuana for
personal medical needs, and is adhering to
the 8-oun ce limit on p ossession. (People v.
Strasburg [2007])
In other words, just because someone
claims 215 privileges doesnt mean an
officer must cease his/her investigation
into that persons poss ession o f marijuana,
regardless of how much or little someone
claims to possess. In this case, Waxier said
deputies would no t have probable cause to
believe he possessed more than 1 ounce o f
marijuana, based only on smelling it and
seeing a small amount of marijuana in his
marijuana pipe. Deputies were en titled to
investigate how much marijuana was in the
vehicle to make sure Waxlers poss ession was
within compliance of the reasonableness
standard set forth by the Strasburgcase.
The only way we (law enforcement of
ficers) will know ho w much marijuana a
person po ssesses in his/her car is to search it.Remember to ask the right questions to lock
these people into their statements. Based on
what their answers are, you can determ ine
if it is a reasonable amount for their medical
needs. If it is within comp liance o f the law,
you can let them go. If it is not within com
pliance, you can cite or arrest them and seize
the marijuana. In addition to the inform a
tion d iscussed above, this case reaffirms the
plain smell doctrine.
A final note about this case: Deputy
Griffin was my partner for 4 1 2 fun-fiiied
c fe.TfjifcTr' **i. k'r-3b L i*.
; - - i i j V t - , - f >-
and exciting years. I know him well andrespect his work ethic. He is a student of the
Fourth Amendment and case law pertaining
to it. He did an excellent job investigating
and testifying in this case.
Peoplev.Mitchell (2014)
> A defendant who cultivates marijuana
for profit is not entitled to a medical
marijuana defense. Here, police
discovered a sophisticated indoor
marijuana growing operation while
investigating a burglary call.
> About $10,00 0 in marijuana was stolen
during the burglary.
> The defendant said that he was growing
the marijuana for local medical
marijuana dispensaries and was
earning $50,000 to S60,000 annually.
* A jury found him guilt) of marijuana
cultivation.
> The appellate court affirmed the
trial courts decision. A po rtion o f
the Medical Marijuana Program Act
provides a limited defense to those
who are prosecuted solely on the basiso f the fact that they are collectively or
cooperatively cultivating marijuana for
medical purposes.
> Here, the defendant entered into
contracts with m edical marijuana
dispensaries and was paid a suffi
cient amount of money to recoup his
expenses and live off the rest of the
income. Thus, the defendant went
beyond the limited im munized scope
of collective or cooperative mari
juana cu ltiva tio n.
This is a great case. After reading thiscase, it appears that a cultivator can no
longer m ake a living off of cultivating
marijuana. From what Im gathering, it
looks like you must have some source
of legitimate incom e, and marijuana
reimbursemen t can on ly be provided
to recoup the actual expenses for the
marijuana grown. For example, someon e
wh o pays $1,500 a month for rent and
has a $1,000 a month power bill, plus all
their other monthly expenses, must be
able to show that they make ends meet
by something other than cultivation,
distribution and reimbursement of
marijuana.
This case makes it very clear for us
to understand that a grower can only
seek reimbursement for marijuana-
grow-related ex penses. The rest of their
income to sustain their day-to-day living
must come from a legitimate job. So,
hypothetically, if it costs a grower $100
to grow their crop for the collective he/
she belongs to, then the grower can only
recoup that $100 no more.Please remember, dont let som eone s
Prop. 215 d octors recomm endation scare
or deter you from con ducting a thorough
investigation. Possessing marijuana within
the scope of Prop. 215/SB 420 is only a
defense in court, n ot a right to possess,
as some people think.
Now that were familiar with some
medical marijuana case law, lets look at
how w e can use our knowledge to conduct
street contacts and interviews with people
claiming 215 privileges.
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Street Contacts and InterviewingQualified PatientsSo how do we question these individu-
s who claim 215/420 privileges? I am
st trying to reinvent the wheel here, but
feel these seven questions can help you
msiderably in your initial contacts andibsequent investigations with medi-
d marijuana users. Many questions
in stem of f of these seven, but the key
to lock your marijuana user into a
atement. You are more than likely to
;t cooperation from qualified patients,
rimary caregivers, etc., if you u se soft
ords. These people will normally talk
) you. The following are questions and
rme additional questions that might
:em of f of the seven.
UESTION NO. 1:
Who is you r doctor?
> Where was your appointment?
(Close, or hundreds of miles away?)
> Tell me about your appointm ent.
> Was it like other doct ors visits youve
had in the past?
> Would you send your mother or child
to this doctor if they were very sick
and need ed accurate and appropriate
medica l care? (One of my favorites.
Youd be surprised how many pe ople say no. )
> How did you pay?
Some things to think about when ask-
ng these questions:
1. Is their recomm endation generic or
does i t have a speci fic dosage o r p lan t
count on it? Remember per the foot
notes in the People v. K elly decision,
a doctor cannot recommend a plant
count, only a dosage amount.
2. Is it a blanket diagnosis for all qualified patients or specific per the qua li
fied patients current medical needs?
3. Is there a trend of doctor shopping by
qualifie d patients?
QUESTION NO. 2:
What medical condition
do you have that would
require you to use medical
marijuana?
> Do es their answer meet the seriously
ill standard set forth in the Health
and Safety Code?
> Do they know what their ailment is?
> Discu ss each ailment with them.
> Is the ailment/illnes s short term or
chronic?
QUESTION NO. 3:
How much marijuana
(medicine) do you use
a day to relieve your
ailments?
> Do es it seem like an appropriate
amount to use?
A person should know how m uch they
if-
use. I know how m uch legitimate medicine
I need to help alleviate my illness or ail
ments. What is appropriate for their current
medical needs? Generally law enforcement
will say that .3 (DEA) to .5 (NIDA) of a
gram is a single dose, or joint. Medical
marijuana advocates state that 1 gram is a
single dose. Dont forget to ask how many
times they dose themselves a day.Also, remember h ow m uch marijuana
costs in your area. Sometimes youll be
conducting your interview and the quali
fied patient will tell you they use a large
amount of marijuana each day to medi
cate themselves and that is why they have
so much marijuana in their possession.
Ive had people tell me they smoke 1/2 to
1 ounce of marijuana a day to medicate
them selves. O ne, its virtually impo ssible
to sm oke that muc h a day, and two, thats
a $200 (plus or minus) per day habit.
Thats $1,400 a wee k or $5,600 a month.
Wow! That is expensive medicine. Not
even the m ost expensive AIDS or cancer
medications cost that much.
QUESTION NO. 4:
How long does the dosage
usually last you?
You may have to start doing some math
here, but basically try to figure out how
long these p eople are high.
> Here you can find out how m any
hours during the day someone is feel
ing the effects of the drug. Sometimes
patients will tell you they medicate
themselves six to eight times a day
and they feel the effects of the drug
after each dosa ge for two to three
hours at a time. This could factor out
to these people being high every wak
ing ho ur o f their day.
QUESTION NO. 5:
What time o f day do
you use?
> Are they using before work, on
their lunch break, at home, before bed?
What do they do for a living? Are
they driving or operating machinery?
Per 11362.785, an employer may
terminate an employee who tests positive
for marijuana.
continued on page 10
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continued fro m page 9
QUESTION NO. 6:
Wha t is your preferred
method o f use?
> Are they eating it (leaves, shake, etc.) or
using it in salves, wraps or tinctures?
Most people smoke it (pipe, joint or
bong ). Ive had the oppor tunity to speak
with hundreds o f marijuana users in my
career and the vast majority (85-90%) smoke
their marijuana. If they have bud, they are
smok ing it. It is too valuable and potent to be
wasted in edibles/butter. Studies have sho wn
that there is no medicinal value from mari
juana in its crude, smokable form.
Remember, the manufacture of honey
oil or butane hash oil (BHO) involves
stripping the THC from the marijuana
plant material with the solvent butane. Thischemical-manufacturing process is a crime
per 11379.6 HS (People v. Bergen [2008]).
0UESTI0N NO. 7:
Do you cultivate or
purchase marijuana? I f so,
where and fo r whom?
They may admit to growing dope in their
home good probable cause for a search
warrant. How big is the grow?
Is it reasonable to the qualified patients
needs?
>- Do you grow alone or with others (col-
lective/co-op grows)?
> Whats your yield per grow cycle and
ho w many grow cycles per year?
>- Ho w muc h do you purchase?
How often do you purchase it?
>- How much do you pay?
Where or from whom do you
purchase it?
You can also now open the primary
caregiver window in your conversation
with them. A primary caregiver can also be a qualified patient. Remember the
relationship between a qualified patient
and their primary caregiver must already
exist in and of itself before the marijuana
care giving begin s, and m arijuana
caregiving alone does not meet the
definition of a primary caregiver set forth
in People v. Mentch (2010). If a primary
caregiver just provides marijuana-related
services, he/she is subject to criminal
penalties per 11357-11360 of the Health
and Safety Code.
As 1was preparing this article, the
American Medical Association came out
with their own article regarding the dangers
o f the medicalization of marijuana. The
article was written by doctors Samuel T.
Wilkinson, M.D., and Deepak Cyril DSouza,
MBBS, M.D., and is titled Problems With
the M edicalizat ion o f Marijuana. Here are a
few highlights from the article.
Given that medical marijuana is ap
proved for mostly chronic conditions
that require long-term dosing, physi
cians must be aware of the develop
ment o f tolerance and depend ence (as
evidenced by down-regulation of the
brain cannabinoid receptors), as well as
withdrawal on discontinuation.
Benefits notwithstanding, the potential
harms associated with medical mari
juana nee d to be carefully considere d.
No other prescription medication is
smoked; concerns remain about the
long-term risks o f respiratory prob
lems associated with smok ing marijua
na, which are a subject of active inves
tigation. THC is already available in a
pill approved by the FDA, yet this form
seems to be less desirable to those
seeking medical marijuana; this may in
part be b ecause its eupho ric effects are
not immediate and cannot be reliably
controlled, unlike smoked marijuana.
Furthermore, there is evidence that
marijuana exposure is associated with
an increased risk of psychotic disor
ders in vulnerable individuals.
> Recent findings suggest that long-term
marijuana exposure is associated with
structural brain changes as well as a
decline in IQ.
> A significant but largely overlooked
problem with the medical marijuana
movem ent is the message the public
infers from its legalization and increas
ing prevalence. ... As legalization has
spread for medica l or recreational pur
poses, it is possible that the perception
o f risk by adolescents will continue to
decrease, with a subsequent increase
in use. This is especially problematic
given that many of the negative effects
of marijuana are most pronounced in
adolescents.
> Potentially therapeutic compo unds of
marijuana should be purified and tested
in randomized, double-blind, placebo-
and active-controlled clinical trials.
Toward this end, the federal government
should actively support research exam
ining marijuanas potentially therapeutic
compounds. These compounds should
be approved by the FDA (not by popular
vote or state legislature), produced ac
cording to goo d manufacturing practice
standards, distributed by regulated
pharmacies, and dispensed via a con
ventional and safe route o f administra
tion (such as oral pills or inhaled vaporization). Otherwise, states are essentially
legalizing recreational marijuana but
forcing physicians to act as gatekeepers
for those who wish to obtain it.
Im glad to see the AMA vo iced their con
cerns, just as CNOA has for years regarding
this medicalization issue.
I hope this article helps assist you in fight
ing the g ood fight. If you have any questions
or if I can assist you in any way, please dont
hesitate to contact CNOA, w hich can get you
in touch with me. CNOA
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