A Keaau couple accused of commercial promotion of marijuana claims their arrest was unlawful because both are medical marijuana patients.

They're also accusing a Puna patrol officer of abusing his authority.

William Peters, 21, and Sarah Biddix, 22, are both charged with first-degree commercial promotion of marijuana and possession of drug paraphernalia. Peters is also facing two counts of third-degree promotion of a detrimental drug.

According to police, Peters, Biddix and 23-year-old Jason Walther of Keaau were arrested after officers served a search warrant at 8:30 a.m. March 30 on a home at 16-1414 40th Ave. in Orchidland Estates. Walther was released pending investigation and has not been charged with a crime.

"They're making us out to be criminals when we're not," Biddix said Tuesday. She and Peters talked to the Tribune-Herald at the Keaau police station where they were turning themselves in for processing on a bench warrant following a May 6 indictment. They were accompanied by Peters' son Kealii, 4, and daughter Malia, 2, as well as a friend, Mike Ruggles, 52, of Fern Acres.

According to police, an officer serving a warrant for Peters on a contempt of court charge didn't find anyone home, but saw marijuana growing and obtained a search warrant. In a written statement, police said that officers searching the home found 113 plants, plus flower pots, growing medium, grow lights and smoking pipes known as "bongs."

Tuesday, Biddix showed the Tribune-Herald a medical marijuana certificate signed by Dr. James Berg of Hawi, while Peters produced a letter from the same physician indicating that he'll be receiving a similar certificate.

"We were within the limits of the medical marijuana law," Peters said. The law allows registered patients "three mature plants, four immature plants and one usable ounce of marijuana per mature plant." A copy of the police inventory provided by Peters and Biddix indicated that police found two "potted mature marijuana plants," five "marijuana seedlings" and 106 "marijuana starters ( clones )."

"Those cuttings are not technically plants; they don't even have roots," Ruggles said.

"We consider that a plant," Puna police Capt. Steven Guillermo said Wednesday.

Deputy Prosecutor Jason Skier told the Tribune-Herald he could not comment on this specific case, but outlined the state's burden of proof for first-degree commercial promotion.

"That's up to a jury to decide," he said. "Basically, we have to prove a hundred separate and distinct plants. In a case like this, you'd have a horticulturist or an expert in hydroponics come in and give testimony about the procedure for cloning the plants. And there would be appropriate documentation by way of photographs or memorialization of what the scene looked like, to demonstrate that there was a hundred separate plants."

According to state law, "'marijuana' means all parts of the plant ( genus ) Cannabis whether growing or not ...." The law also states that a person "commits the offense of commercial promotion of marijuana in the first degree if the person knowingly ... possesses, cultivates, or has under the person's control one hundred or more marijuana plants."

Ruggles also questioned whether officers had probable cause for a search warrant.

"They didn't ask first if they had medical marijuana licenses," he said. "They should have done that before going for a search warrant."

Said Guillermo: "I cannot comment on that, but what was presented to the judge when we went for the search warrant, the judge agreed there was enough probable cause to go ahead and issue a search warrant. ( The judge ) reviews the affidavit which lists all the evidence for probable cause.

"If, for example, they had one plant outside, and they were registered, obviously, that does not meet our probable cause requirements. As part of the requirements for any potential search warrants for marijuana, a check has to be done to verify if somebody is registered, first of all, and if they are, what address it's at."

Biddix's certificate listed a different address from the home raided by police.

Peters says that he "ended up taking the rap" because Puna patrol Officer Sandor Finkey "said he would take my kids if I didn't confess."

Police policy does not allow Finkey to talk to the media. Guillermo called Peters' statement "just an accusation being made."

Peters and Biddix said they are being ostracized due to media reports surrounding their case. Peters said the couple was going to rent a house, but the home "was suddenly unavailable" after the story of their arrest was published. He said they are currently staying with relatives.

"We're not criminals," Biddix said. "We're both college students ( at Hawaii Community College ). I just signed up for this internship, but I didn't get it and they didn't give me a reason."

"People look at us and gawk all the time -- at the grocery store and the gas pump," Peters added. "We all voted for this new law ( the Peaceful Sky initiative, which makes marijuana possession the lowest law enforcement priority ).

"What happened to this lowest priority thing?"

News Hawk: User: http://www.420magazine.com/
Source: Hawaii Tribune Herald (Hilo, HI)
Copyright: 2009 Hawaii Tribune Herald
Contact: letters@hawaiitribune-herald.com
Website: Hawaii Tribune-Herald :: Hilo, Hawaii > Front
Author: John Burnett