Pot in a Pickle

[SirBlazinBowl]

Garfield County Sheriff Lou Vallario and medical marijuana user Gene Brownlee may not agree on much, but they both agree that Brownlee's case should send a message about the state's medical marijuana amendment.

Brownlee, whose case was dropped by prosecutors because of police mishandling evidence, hopes it tells law enforcement to be careful when dealing with growers who use a state amendment to legally cultivate the drug.

"Before you disrupt a crop that is destined for medical patients, that has been found legal by the state of Colorado, you better be damned sure you know what you're doing," Brownlee said.

But for Vallario, the case illustrates an unusual bind police find themselves in when dealing with a medical marijuana dealer who they believe is breaking the law. According to the amendment, police have to preserve the plants until the case is finished. In this case, that would have put them in the awkward position of police caring for over 100 marijuana plants for more than a year.

"It's really difficult," Vallario said. "You just want to say, 'just go and do another case,' but we can't just ignore it, because there's a potential crime being committed."

The amendment doesn't make any provision to help police deal with evidence handling, he said. "I think it's kind of half a law."

Brownlee's case was the second that prosecutors dropped after police destroyed the plants rather than saving them. His ex-wife Jennifer Ryan was a certified medical marijuana grower and Brownlee had previously been on the state registry, but he said his certification had lapsed.

A third case involving his nephew has been on hold, awaiting the outcome of this case. A family friend, Drew Gillespie, pleaded guilty to cultivation charges and is on probation.

The Two Rivers Drug Enforcement Team raided the apartment Brownlee and Ryan were moving into in June 2004 and found 131 plants. Officers took samples from the large plants and destroyed the plants. They uprooted 23 small plants and preserved them, roots and all, in evidence bags.

The state medical marijuana law requires that all the plants be preserved. TRIDENT officers said they were unaware of that provision at the time.

In Ryan's case, District Judge James Boyd allowed only the whole plants to be entered as evidence, and since Ryan had a license to grow 24 plants, prosecutors dropped the case.

On Wednesday, District Judge Daniel Petre reached a similar decision in Brownlee's case, prompting prosecutors to drop that case, too.

"The People have determined that they lack sufficient evidence upon which they may prove the charges pending against the defendant beyond a reasonable doubt," wrote Chief Deputy District Attorney Scott Turner.

Brownlee said he believes his nephew's case will also be dropped.

"He had nothing to do with this entire case," Brownlee said. "He was just there to help my wife and I move. That was it. The plants had been moved the week prior."

Vallario said he also thinks that case may be dropped.

Brownlee had maintained that he and his wife were licensed to grow 42 plants between them, and that many of the plants they had were just small clones that may not survive on their own and shouldn't be counted.

His medical growing certificate had lapsed, but he said because he had been on the registry before, he shouldn't be disqualified just because he couldn't afford to pay the fee to stay certified.

But investigators believed they had a crime on their hands. Even after seeing Ryan's certificate, they found far more plants than they believed she was allowed to have.

Vallario, who heads up a drug team, admitted officers erred by destroying the plants, but he said they had acted in good faith and didn't know about the law.

Now that they know, though, what do they do next time?

"Are we supposed to take all those plants and rent a warehouse somewhere and maintain them?" he asked. "Or is the property owner ... supposed to maintain the plants until this can be settled in court? There's really no practical way to do that."

In this case, that would have left police caring for 131 plants for 17 months and counting.

"Now we're growing these things and we're increasing the amount of product," he said.

That doesn't please Vallario, who is no fan of laws that decriminalize marijuana or legalize it for medical use.

"It's just stupid," he said. "I fully understand the medical marijuana thing. I'm not a doctor. I'm not in a position to say it's got medical value or not. But if it does have medical value, treat it like any other drug."

Vallario said he's not optimistic that voters will pass an amendment to fix this dilemma. But officers may have a way out, he said. They could leave the plants where they are, allowing them to be abandoned after their owners are arrested, then treat them like any other abandoned contraband.

But critics say the message to police should be to leave certified medical marijuana caregivers alone.

"They shouldn't pick on people who are legally participating in the medical marijuana program," said Kristopher Hammond, the Steamboat Springs attorney who handled Ryan's case. "There are plenty of other people to pick on."

Hammond said TRIDENT should focus on other drugs, like crystal methamphetamine, instead of medical marijuana growers, and if they seize the plants, they need to care for them.

"The law says, if they don't want to care for the plants, don't take them," he said. "It's inconvenient to take care of prisoners in the jail, but that's what they do."

Brownlee said a part of him is disappointed his case never made it to trial. He claims he was doing nothing wrong and wanted a chance to prove that and make a stand for the voter-approved amendment.

"Had I got to prove may case and have it not be dismissed upon a technicality, I think it would have shown that this is the citizens' choice," he said. "We made this decision."

Newshawk: SirBlazinBowl - 420Times.com
Source: Aspen Daily News (CO)
Copyright: 2005 Aspen Daily News
Contact: http://www.aspendailynews.com/contact_us/form.htm
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Author: David Frey, Aspen Daily News Correspondent