Source: Denver Post (CO)
Author: Mike McPhee, Denver Post Staff Writer
Published: Saturday, January 24, 2004
Copyright: 2004 The Denver Post Corp
Contact: [email protected]
The U.S. Attorney's Office on Friday asked a federal judge to dismiss a contempt charge against federal agents who seized marijuana from a Colorado man who had state permission to smoke it for medical purposes. The case highlights a clear conflict between state and federal laws.
Attorneys for the federal government argued in a brief filed Friday that the agents were following federal law, which treats marijuana as contraband. But Colorado law allows authorized medical patients to possess up to 2 ounces of loose marijuana and three live plants. Colorado has authorized about 300 patients to smoke marijuana.
On Oct. 14, nine members of the GRAMNET drug task force entered the tiny apartment of Don Nord, 57, of Hayden, armed with a state search warrant to confiscate his marijuana.
Eight members of the task force are local law enforcement officers and one, Doug Cortinovis, was a Drug Enforcement Administration agent. The state officers were deputized DEA agents.
They confiscated six plants, 5 ounces of loose marijuana that Nord said was worthless because of its age, a pipe, growing equipment, extension cords and Nord's Medical Marijuana Registry card.
A few days later, Nord's attorney, Kristopher Hammond, sent a copy of the registration card to Routt County Judge James Garrecht, who had signed the search warrant. No charges were filed against Nord, and Garrecht ordered that everything be returned, including 2 of the 5 ounces of the loose marijuana.
On Dec. 23, the task force officers returned everything but the 2 ounces of pot.
A week later, Hammond filed a motion for contempt in Garrecht's court against Cortinovis "for failing to follow the Colorado Constitution and a judge's orders" for not returning the marijuana.
Determined to defend the task force members, the U.S. Attorney's Office stepped in Friday. It asked that the case be removed from state to federal court, and that the contempt charge be dropped.
Federal attorneys wrote that "removal ... is proper when either a state court civil action or criminal prosecution is brought against a federal official, as long as the action for which the official is being questioned was undertaken under color of federal office."
Arguing that the contempt charge should be dropped, they wrote: "It is not the intent of officers or agents of the U.S. to violate state law in the performance of their duties or to ignore orders of state court judges. In this instant, regrettably, such violation was mandated by federal law, a circumstance that is unfortunate and rare.
"Once GRAMNET members had in their custody contraband as defined by federal statute, they were required to follow federal law in the performance of their duties. Otherwise, they would have been subject to discipline and possibly termination or worse, for dereliction of their duties."
Hammond said he was shocked.
"Just like they stole the marijuana and sent it to the DEA lab, they're trying to steal it from the state court and send it to federal court," Hammond said. "If they didn't like the judge's order to return the marijuana, they should have appealed that order. They didn't and I believe that every court has the right to enforce its orders.
"We all have to obey court orders even if we don't like them. Sounds to me like they're being a bunch of crybabies."
Jeff Dorschner, spokesman for the U.S. Attorney's Office, said his office will vigorously defend the DEA task force officers in this case.
U.S. Court Snags Pot Fight
Attorney Asks To Dismiss Citations in Pot Case
DEA Should Give Back Patient's Pot
Marijuana Fight Continues