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Judge rules that pot dispensary was operating as a “legitimate business.”
By Hempology | April 6, 2008
Sat, 5 Apr 2008
Desert Sun, The (Palm Springs, CA)
Amy Blaisdell
MARIJUANA DISPENSARY SCORES VICTORY IN COURT
Judge Rules Search Warrant Served on CannaHelp Invalid; D.A. to Appeal
The criminal case against the owner and managers of a Palm Desert medical marijuana dispensary was dealt a setback Friday when a judge invalidated the search warrant used to investigate the defendants.
Prosecutors said they will appeal the ruling.
If the ruling is not overturned, the case will likely be dismissed for lack of evidence.
CannaHelp owner Stacy Hochanadel and his managers, James Campbell and John Bednar, all 31, were arrested in December 2006 and charged with felony possession of marijuana for sale, transport and sale of marijuana and keeping a place to sell controlled substances.
Marijuana and financial records were seized at CannaHelp, 73-359 El Paseo, in December 2006 during a raid by the Riverside County Sheriff’s Department.
Riverside County Superior Court Judge David B. Downing said he looked at the facts carefully and concluded the three defendants were in compliance with the state’s Compassionate Use Act, and that they were operating a “legitimate business.”
He further concluded that the affidavit in support of the search warrant was flawed because Robert Garcia, the sheriff’s investigator who prepared it – although familiar with drug cases – was not adequately trained in handling medical marijuana cases.
“He made mistakes in the affidavit the problem was he didn’t have a clue about the Compassionate Use Act,” Downing said.
He noted that police see people dealing drugs every day but rarely deal with medical marijuana.
He also said Garcia wrongly asserted the dispensary had made a $1.6 million profit because the investigator admitted under cross-examination that most of the money was used to buy more pot.
Downing, who said he fully expected prosecutors to file an appeal, scheduled a May 5 hearing, when prosecutors are expected to announce their next steps.
Supervising Deputy District Attorney Richard Cookson said his office disagreed with the judge’s ruling and will file an appeal with the 4th District Court of Appeals in Riverside.
“The court’s ruling was wrong because the judge moved out of the motion itself,” Cookson said.
He said he believed the judge should have been limited to the affidavit itself and should not have referred to the preliminary hearing transcript.
“We believe it was an erroneous ruling and we will be aggressively appealing his decision,” said Michael Jeandron, a spokesman for the Riverside County District Attorney’s Office.
Outside court, Hochanadel’s attorney, Ulrich McNulty, said his client was grateful for the judge’s careful attention to the case and noted the ruling made clear that law enforcement need to approach medical marijuana cases differently.
“The sheriff’s department approached this like a regular drug case and they had no training on how to differentiate what is lawful or unlawful,” the attorney said.
The defendants contend they were running a legal medical marijuana dispensary under Proposition 215 and Senate Bill 420. Under California law, marijuana can be sold on a not-for-profit basis to patients with a doctor’s prescription, although it is illegal under federal law.
During December’s preliminary hearing to determine if there was enough evidence to order the defendants to stand trial, Garcia testified that an undercover officer twice purchased medical marijuana on the premises for what he said was a back problem.
But he also said CannaHelp tried to comply with the law and that the dispensary refused to sell to the first undercover officer who tried to purchase marijuana because employees could not verify his doctor’s prescription.
He also conceded the defendants never tried to hide their business from law enforcement and it would be unfair to compare them to street-level drug dealers.
The three defendants have been allowed to remain free on their own recognizance on the condition they do not obtain marijuana in excess of what the law allows.
All three men are medical marijuana cardholders with prescriptions for the drug.
They also cannot sell the drug or provide it to patients in a care-giving capacity.
If convicted, the three men could face as much as two years in prison, prosecutors said.
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