Medical Marijuana Law May not Tank Indictment

SEATTLE (CN) - Federal prosecutors asked the 9th Circuit to let them pursue charges over a Washington drug-growing operation even though the state decriminalized the manufacture of medical marijuana.

Washington amended the medical marijuana statute to decriminalize the possession, use and manufacture of medical marijuana in July 2011.

A Grand Jury in Spokane indicted seven men in February 2012 on federal drug charges after authorities using a search warrant seized more than 500 marijuana plants from a residence and outbuildings. Residents can legally grow 15 plants for medical use. The men are all out on bail and awaiting trial.

Finding that the officers failed to show probable cause under the state's medical marijuana statute, U.S. District Judge William Fremming Nielsen suppressed the evidence May 2012.

"It is uncontested that while the affidavit supporting the warrant included evidence of a marijuana grow, there was no mention of the medical marijuana statute or an assertion that the grow violated the medical marijuana statute," Nielsen wrote. "This omission is fatal to the warrant as the warrant then does not show probable cause of a crime. The good faith exception cannot rescue the warrant as the three month old law was clear and the officers should have been aware of its requirements. Thus, all fruits of the search shall be suppressed. The parties agree this includes all physical evidence obtained during the search as well as any statements that were derived as a fruit of the poisonous tree."

Assistant U.S. Attorney Joe Harrington argued before a three-judge appellate panel last week that it was "impossible to comply with the statute" because the state does not have a registry for medical marijuana growers.

Officers had no way of knowing if the plants were intended for medical use, but the large number of seized plants gave the officers probable cause to suspect the grow was criminal, Harrington said.

Judge N.R. Smith agreed with Harrington and said the evidence listed in the affidavit for a search warrant suggested the men were growing more than 15 plants.

"When you look at this, why did we even have to talk about medical marijuana?" Smith asked.

Judge Andrew Kleinfeld asked Harrington why the government wanted to argue about the statute when the court could just rely on the precedent in U.S. v Leon, which says illegally obtained evidence may be used in a trial if it was gathered in good faith.

"Is there any evidence that there were facts that were intentionally omitted from the affidavit?" Smith asked.

"None whatsoever," Harrington replied.

Kleinfeld asked Richard Wall, representing the defendants, the same question about Leon.

"I am very skeptical of the government's argument about Washington law, but I don't see why it's necessary," Kleinfeld said.

Wall replied that officers "have to know what the crime is" to know whether they have probable cause.

The affidavit failed to establish that it was "more likely than not" an illegal operation, he added.

"There's no information whatsoever in the affidavit to tell you if it's a legal or illegal grow," Wall said.

Kleinfeld shot back: "Why is it a problem? Probable cause doesn't require beyond a reasonable doubt."

Smith said there could still be probable cause for the search, but not criminal prosecution if the plants were grown for medical use.

"How do I interpret this statute to suggest you don't even have probable cause?" Smith asked.

Wall countered that "the Constitution requires probable cause to believe a crime is being committed in order to get that search warrant."

"You can't say, well, we need the search warrant to get the information to know if it's legal," he added. "You have to have probable cause or believe it is not legal before you can get the warrant."

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