Source: Fresno Bee, The (CA)
Author: Marc Benjamin and Charles McCarthy, The Fresno Bee
Published: Monday, May 10, 2004
Copyright: 2004 The Fresno Bee
Contact: [email protected]
Three Valley medical marijuana users say law enforcement and the judicial system function backward for them, that they are guilty until proven innocent.
A Chowchilla man and a Clovis couple, each eventually cleared of marijuana charges, showed medical certification when they were arrested. They still went to jail and had to prove their innocence in court.
The medical marijuana patients want authorities held responsible for keeping them from their medication. And they point to a state law that says they should be left alone. But law enforcement officials say they are bound by local and federal guidelines which require that they pursue marijuana users.
It's a tug of war that both sides refuse to back down from.
"It's repugnant to the foundation of our entire system," said William McPike of Auberry, who defended both recent Valley cases. "These people are innocent, so how can you lose defending innocent people?"
Michael Celli, 42, of Chowchilla has a hearing May 21 to determine if Madera County District Attorney Ernest LiCalsi and John Robinson, former Chowchilla police chief, will face contempt of court sanctions -- fines or jail -- for not returning a pound of medical marijuana seized as evidence last year.
Possession charges filed against Celli were dismissed by LiCalsi's office 10 months ago. A Madera judge then ordered the return of Celli's marijuana, but when Celli showed up last July at the Chowchilla Police Department, Robinson refused to hand it over.
Following a phone conversation with LiCalsi, Robinson told Celli that federal law prevented the drug's return and that federal Drug Enforcement Administration officials may take charge of the marijuana, McPike said.
In court papers, McPike calls Robinson and LiCalsi's decision "a warped scheme to challenge this court's jurisdiction." The marijuana still sits in a Chowchilla police evidence locker.
Chowchilla police can keep the marijuana now, McPike said, because it has been sitting so long that it has questionable medicinal value. But, he said, Celli should be paid $4,800 for the marijuana and $5 per day for the loss of its use since July.
McPike also asks "appropriate criminal penalties and sanctions" and $4,050 in lawyer's fees.
In his response papers, LiCalsi denies "each and every allegation." At no time did his office have possession of the disputed substance, he said.
The battle started when Chowchilla officers issuing a parking citation reported finding about 6 grams of marijuana, or one-fifth of an ounce.
Celli told officers he had medical marijuana authorization issued by a cannabis cooperative. He also advised officers they could find more in the car; they discovered an additional 15.5 ounces.
Chowchilla's city-contracted lawyer, Neal Costanzo, said returning the marijuana might be a crime under federal law.
"The DEA knows about this stuff, and they're monitoring the situation very carefully," Costanzo said.
In November 1996, California voters approved Proposition 215, which allowed medical marijuana use. The measure was supported by the U.S. Supreme Court, but justices did not change the way federal law enforcement treats marijuana use, even when it meets medical use guidelines.
Chris Warner, acting agent in charge of the Fresno DEA office, said he couldn't comment about investigations. He reiterated that federal law does not allow for medicinal use of marijuana and that state courts have no jurisdiction over federal agents.
"Small amounts of marijuana are not exactly high on our radar screen," Warner said. " If there's marijuana in front of us, obviously, we're going to seize it."
In the Clovis case, Gary Ainsworth, 43, and his wife, Paula, 46, were growing marijuana in the back yard of their home. When local teenagers saw it creeping over a wall, they tried several times to climb into the yard to take some. Gary Ainsworth said he did not believe any of the drug was taken because his dogs were threatening.
The couple uses the drug for pain relief. She has chronic back pain that Vicodin, which makes her ill, can't relieve; he has diverticulitis and has undergone three stomach surgeries.
"You don't have any side effects from marijuana," he said.
The Ainsworths called Clovis police repeatedly for assistance when the teens began climbing the wall. When officers arrived, they suggested the Ainsworths conceal the plants or cut them back.
"They were growing marijuana in the back yard that was visible, and kids were hopping the fence," said Janet Stoll-Lee, a Clovis police spokeswoman. "They were asked several times to cut it back or conceal it. It was a nuisance, and, for all intents and purposes, they were inviting the kids."
In September, the Ainsworths were arrested for cultivating marijuana. The Ainsworths' certification did not prevent their arrests, a jail stay, bail and attorney costs.
The following week, after investigators obtained a search warrant, they removed seven 5-foot-tall plants and packaged marijuana.
They also charged the couple with an additional felony: cultivation in the commission of a felony because they had a shotgun.
Stoll-Lee said Fresno County has a "zero tolerance" policy for marijuana, even for medical uses.
Fresno County sheriff's Lt. Rick Hill, who commands the Fresno County sheriff's narcotics enforcement team, said medical marijuana use is a defense in court but does not prevent arrest.
"Until we can establish these are legitimate medicinal marijuana users," Hill said, "it doesn't keep them from going to jail. It's just a defense."
As more medical users begin to emerge, Hill said, the county may look at other avenues for prosecution, perhaps moving the cases into federal court.
"We don't want to have people coming into the Sheriff's Department and have us hand them over marijuana," he said. "We are abiding by court orders. If a judge orders us to release it, we will, reluctantly."
But he said a policy outlined in the state health and safety code may give law enforcement greater latitude to deal with those using medical marijuana.
The code has to be adopted on a county-by-county basis and requires users to present a photo identification card. The county would have a 24-hour, toll-free phone number to check the card's validity and a date of expiration.
"If they set up this program, they would show us this card ... then we may have to back off," Hill said. "Everybody wants to be compassionate for the people who really need it."
In March, the Ainsworths were exonerated of all charges and their case was dismissed.
Fresno County Superior Court Judge Alan Simpson ordered their marijuana returned, saying the Ainsworths are "qualified patients ... entitled to legally possess and cultivate medical marijuana for their purposes."
All property taken from the Ainsworths -- including their shotgun and now-withered plants that were in storage for more than seven months -- was returned last week.
"We have been scraping and struggling, and we have had to do without a lot," Gary Ainsworth said.
Lawyer McPike, who also has filed a civil claim against the city of Clovis, said the Ainsworths' situation is "a clear case where the war on drugs is more harmful than the legally prescribed medication."
Note: Users in Chowchilla and Clovis sue authorities over handling of cases.
Related Article & Web Site:
Medical Marijuana Information Links
Medical Pot Fight Wafts Into Valley
CannabisNews Medical Marijuana Archives