Medical Pot Grower Can|Sue Cops Over Search

     (CN) – Oakland police had probable cause to search the home of a 60-year-old man growing medical marijuana in his yard, a federal magistrate judge in San Francisco ruled, but they may have entered the house too quickly and kept him in handcuffs too long.

     Acting on a tip that Victor Jones was illegally growing marijuana, two officers scoped out his home, where they saw a “clear and unobstructed” view of marijuana plants in his backyard.
Police received a warrant to search his home, which they did, after knocking on a metal security gate outside the house and announcing their presence.
About 10 seconds after they first knocked, they heard movement inside the house and feared the residents were destroying evidence, so they broke open the gate.
Police claimed that Jones and his visitor, Novender Fleming, were handcuffed and held at gunpoint for about five minutes during a “cursory search” of the premises.
But Jones and Fleming tell a different story. They say they were handcuffed and held at gunpoint for nearly an hour.
Officers found six marijuana plants in the yard, for which Jones, who had gout, held a legal medical marijuana permit.
No one was arrested and no charges were filed, but one of the officers confiscated one of Jones’ guns.
Jones and Fleming sued, alleging that police used excessive force and illegally entered the property, and that the warrant was not based on probable cause.
U.S. Magistrate Judge Bernard Zimmerman said the warrant was legal, but ruled that a jury should decide if police used excessive force and didn’t wait long enough before breaking open the gate.
“Finding that defendants … could knock down the front door once they heard movement inside the house, as defendants suggest, could eviscerate the knock-and-announce requirement,” Zimmerman explained.
He added that it was too early to dismiss the excessive force claim, because “there are several disputed issues of fact regarding the length of the search, the use of handcuffs and the use of guns.”
Zimmerman also rejected the plaintiffs’ First Amendment claim as “entirely unclear,” but allowed them to proceed with a state-law negligence claim.

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