CNOA Newsletter on MMJ

8/11/2019 CNOA Newsletter on MMJ

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CASE LAW UPDATE AND

STREET CONTACT INTERVIEW TECHNIQUESSeth C imino, Police Officer, Citrus Heights Police Department

Recently CNOA asked me to

write a follow-up article to my

widely popular (insert laugh

ter here) article Initial Co ntacts With

Persons Claiming Protections U nder Cali

fornias Medical Marijuana Laws and Stat

utes, which appeared in the Spring 2012

edition of the California Narcotic Officer

magazine. In all seriousness, I am very

honored and excited to have been asked to

share more marijuana investigation infor

mation w ith you folks.

Over the last few years there has been

some defining case law that has helped

law enforcement interpret and enforce the

California Health and Safety Code as it

pertains to Proposition 215 (the Compas

sionate Use Act) and Senate Bill 420 (the

Medical Marijuana Program Act).

Listed below are three cases that have

dramatically affected the way we conduct

our initial investigations concerning people

claiming Prop. 215 privileges who are pos

sessing, cultivating and transporting mari

juana. The appe llate court d ec ision s in these

cases have helped narrow the scope o f what

is reasonable involving possession, culti

vation and transportation.

These case decisions directly affect us

on the front lines, as we are the ones who

are going to be making initial contact with

these subjects during our day-to-day as

signments and calls for service.

Knowing the ins and ou ts of what

these cases say and the proper question s

to ask during the interview pro cess are

essential for our investigations. Also,

detectives may be following up with the

case, depending on the seriousness and

amount of marijuana found, and it is im

portant to make sure weve done as thor

ough a job as possible.

I frequently receive phone calls and

emails from law enforcem ent officers

and district attorneys througho ut the

state, requesting assistance in dealing

with cases invo lving marijuana where the

suspect claims Prop. 215 privileges. One

of the first questions I ask after receiving

the details of the case is, Were you able

to cond uct an interview of the suspect?,

and if so, What were his/her answers to

questions regarding their use, possession

and cultivation of marijuana? Unfortunately, sometimes Im told the officers

conducting the interviews did not ask

some very pertinent questions. Without

knowing certain things about a quali

fied patie nts use, pos sessio n and cu ltiva

tion of marijuana, it makes it very dif

ficult in court for officers and the DA to

show the defendant was operating outside

of the sco pe and g uidelines o f the law.

Following the case briefs and analy

sis portion of this article, I will discuss

some initial questions officers really need

to ask subjects to help lock them into a

statement. We can then use their answers

throughout our investigation. Do the

answers they give meet the reasonable

ness standard set forth in People v. Trip-

p e t (1997)? Many times people who are

criminally profiting from the cultivation

and sale of marijuana will try to reverse

engineer their statements to what their

defense attorney believes will help them

muddy the waters in court. The initial

statements we get from these subjects be

come even more important for use at that

time. All right, lets get to it.

People v. Waytnan (2010)

> CHP traffic stop and arrest for

23152(a) and (b)

> Wayman also had a Prop. 215 do c

tors recomm enda tion and $117 cash

on his person.

> During a search of the vehicle, 1

gram of marijuana and $120 cash

were found.

> Dur ing a search of the trunk, a back

pack was found. Inside were 26 bag

gies of marijuana labeled 3.5 grams,five baggies o f 5 grams o f marijuana,

14 small bottles o f concentrated can

nabis, 14 small metal screens', five

empty Ziploc bags and a scale.

> Wayman testified that his marijuana

consum ption varies with the extent of

his back pain.

> He said he purchased the marijuana

for about $2,000 from a dispensary a

few days before his arrest and that he

kept the marijuana in his vehicle to

appease his mother.

> The prosecu tor in the case stated that

the Compassionate Use Act (CUA)

did not provide a defense to the

transportation charge in this case, be

cause Wayman was not transporting

the marijuana in his car for medical

purposes at the time he was pulled

over; rather, he was just storing it in

his vehicle for use sometime in the

future.

> The court instr ucted the jury that

the a mount of marijuana transported

THE CALIFORNIA NARCOTIC OFFICER


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must be reasonably related to the pa

tients current medical needs.

> The jury also needed to consider

whether the method, timing and dis

tance o f transportation were reason

ably related to the pa tien ts current

medical needs.

> Wayman was convicted of transpor

tation of marijuana' and two misde

meanor charges and was sentenced

to 180 days in jail and probation. He

appealed his conviction.

> The appellate court held that the

CUA, by its terms, provides immu

nity from criminal liability only when

a qualified patient transports mari

juana for hi s or her ow n person al

medical use. (11362.765[b][l] HS)

This case has made it very clear for

us, as investigating officers, how much

marijuana a person can transport in a

vehic le. The standard is whats reaso n

ably related to their current medical needs

based on the method of transport, the

timing o f the transport and the distance

of the transport. Im sure that makes it as

clear as mud for you. L ets now bre ak this

down using precise and clear questions

regarding the qualified patients poss es

sion during our traffic stop. We are going

to want to find out some important details

that are going to help us determine what

is reasonable.1. Ho w much marijuana are they trans

porting (or is in their possession)?

2. Ho w much marijuana do they use on

a daily basis?

3. Ho w long are they going to be on

their current trip? (D aytrip, errands,

weekend camping, one w eek at a

frien ds house , etc.)

So lets take these quest ions and go

through a mock T-stop scenario. You stop

someone and they claim Prop. 215 privi

leges. They tell you they have, or yo u find

during your contact, 6 grams of marijuana

in the car. (Remember, you can search

the vehicle based on the vehicle excep

tion rule to a search warrant and probable

cause, because the person tells you, or you

smell or see, that there is marijuana in the

car). The person next states they use

3 grams a day to medicate themselves and

are going to be gone on a two-day trip.

Okay, lets do the math her e. Three gram s

per day times two days equals 6 grams.

Based on the information you obtained

and case law, this possession and trans

portation would be within the guidelines

of state laws per Prop. 215/SB 420.

Now, if during your contact with this

person you discover they are possessing

and transporting 5 ounces, and they state

they only use 3 grams a day and are going

to be gone from hom e for two days, then

they are possessing way too much mari

juana for the po ssessio n to be c on sid ered

reasonable for their current medical needs

based on time, m ethod and distance. A per

son possessing or transporting marijuana

outside the scope of reasonableness is sub

jec t to arrest and seizure o f the ir marijuana .

Peoplev. Waxier (2014)

> Del Nor te Sheriffs Deputy Griffin

and a co-worker contacted Waxier

in a parked car. He was suspected of

illegal dumping.

> Deputies could smell the odor of burnt

marijuana emanating from the vehicle.

> Dep uties saw a marijuana pipe on the

seat of the car with burnt marijuana

in the bowl of the pipe.

> Deputies condu cted a search of the

vehicle.

> Waxier presented Depu ty Griffin with

a current 215 recom mendation dur

ing a search of his vehicle.

> Depu ties found meth and a meth

pipe in the car. Waxier admitted the

meth was his. Waxier was arrested for

11377, 11364 and 11379 HS.

> Deputy Griffin testified to continuing

the search because he did no t know

how much marijuana was in the car

until he searched it, to determine if

the marijuana was within compliance

of C alifornias med ical m arijuana law.

Griffin added that suspects often use

the 215 defense to hide other mari

ju an a cr im in al activities .

The people argued Deputy Griffin

had probable cause to search the

appellan ts vehicle after observing

an odor of marijuana. They also

contend ed the CUA does not provide

immunity from arrest or criminal

prosecution, and that possession of

a 215 card is an affirmative defense

to the crimes of possession and

cultivation of marijuana at trial and

does not protect one from a valid

search nor arrest."

The appellant claimed Deputy

Griffins observa tion o f marijuana in

the truck could not have supported

an a r r e s t beca use posses s ion o f up

to 28.5 grams of marijuana is an

infraction under Section 11357.

Finally, the appellant argued the

possession of personal-use m edical

marijuana was legal with his do ctor s

recommendation.

Waxier was convicted o f 11377 HS.

He appealed his conviction stating

the deputies did not have probable

cause to believe he possessed more

than 1 ounce o f marijuana or that he

was under the influence of marijuana.

Also, his Prop. 215 recommendation

should have nullified the search.

In affirming the trial court's decisio n,

the appellate court stated the search

continued on page S

SUMMER 2014


4/6

continued from page 7

was good. Based on smell alone, an

officer cannot know how much m ari

juana is in a v eh icle unt il th ey sea rch

it. The vehicle exception to the search

warrant rule still applies.

Waxlers possession of a valid recom

mendation did not trump the deputies

probable cause to search his vehicle pu rsu

ant to the automobile exception rule. It

wasnt until after the deputies started their

search that he provided them with his valid

recommendation.

Also, Prop. 215 is not a shield from

reasonable investigation. An officer with

probable cause to search is not prevented

from doing so by someone presenting a

medical marijuana card or a marijuana

prescription. Given the probable cause here, the officer is entitled to continue

to search and investigate, and determine

whether the subject of the investigation

is in fact possessing the marijuana for

personal medical needs, and is adhering to

the 8-oun ce limit on p ossession. (People v.

Strasburg [2007])

In other words, just because someone

claims 215 privileges doesnt mean an

officer must cease his/her investigation

into that persons poss ession o f marijuana,

regardless of how much or little someone

claims to possess. In this case, Waxier said

deputies would no t have probable cause to

believe he possessed more than 1 ounce o f

marijuana, based only on smelling it and

seeing a small amount of marijuana in his

marijuana pipe. Deputies were en titled to

investigate how much marijuana was in the

vehicle to make sure Waxlers poss ession was

within compliance of the reasonableness

standard set forth by the Strasburgcase.

The only way we (law enforcement of

ficers) will know ho w much marijuana a

person po ssesses in his/her car is to search it.Remember to ask the right questions to lock

these people into their statements. Based on

what their answers are, you can determ ine

if it is a reasonable amount for their medical

needs. If it is within comp liance o f the law,

you can let them go. If it is not within com

pliance, you can cite or arrest them and seize

the marijuana. In addition to the inform a

tion d iscussed above, this case reaffirms the

plain smell doctrine.

A final note about this case: Deputy

Griffin was my partner for 4 1 2 fun-fiiied

c fe.TfjifcTr' **i. k'r-3b L i*.

; - - i i j V t - , - f >-

and exciting years. I know him well andrespect his work ethic. He is a student of the

Fourth Amendment and case law pertaining

to it. He did an excellent job investigating

and testifying in this case.

Peoplev.Mitchell (2014)

> A defendant who cultivates marijuana

for profit is not entitled to a medical

marijuana defense. Here, police

discovered a sophisticated indoor

marijuana growing operation while

investigating a burglary call.

> About $10,00 0 in marijuana was stolen

during the burglary.

> The defendant said that he was growing

the marijuana for local medical

marijuana dispensaries and was

earning $50,000 to S60,000 annually.

* A jury found him guilt) of marijuana

cultivation.

> The appellate court affirmed the

trial courts decision. A po rtion o f

the Medical Marijuana Program Act

provides a limited defense to those

who are prosecuted solely on the basiso f the fact that they are collectively or

cooperatively cultivating marijuana for

medical purposes.

> Here, the defendant entered into

contracts with m edical marijuana

dispensaries and was paid a suffi

cient amount of money to recoup his

expenses and live off the rest of the

income. Thus, the defendant went

beyond the limited im munized scope

of collective or cooperative mari

juana cu ltiva tio n.

This is a great case. After reading thiscase, it appears that a cultivator can no

longer m ake a living off of cultivating

marijuana. From what Im gathering, it

looks like you must have some source

of legitimate incom e, and marijuana

reimbursemen t can on ly be provided

to recoup the actual expenses for the

marijuana grown. For example, someon e

wh o pays $1,500 a month for rent and

has a $1,000 a month power bill, plus all

their other monthly expenses, must be

able to show that they make ends meet

by something other than cultivation,

distribution and reimbursement of

marijuana.

This case makes it very clear for us

to understand that a grower can only

seek reimbursement for marijuana-

grow-related ex penses. The rest of their

income to sustain their day-to-day living

must come from a legitimate job. So,

hypothetically, if it costs a grower $100

to grow their crop for the collective he/

she belongs to, then the grower can only

recoup that $100 no more.Please remember, dont let som eone s

Prop. 215 d octors recomm endation scare

or deter you from con ducting a thorough

investigation. Possessing marijuana within

the scope of Prop. 215/SB 420 is only a

defense in court, n ot a right to possess,

as some people think.

Now that were familiar with some

medical marijuana case law, lets look at

how w e can use our knowledge to conduct

street contacts and interviews with people

claiming 215 privileges.

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Street Contacts and InterviewingQualified PatientsSo how do we question these individu-

s who claim 215/420 privileges? I am

st trying to reinvent the wheel here, but

feel these seven questions can help you

msiderably in your initial contacts andibsequent investigations with medi-

d marijuana users. Many questions

in stem of f of these seven, but the key

to lock your marijuana user into a

atement. You are more than likely to

;t cooperation from qualified patients,

rimary caregivers, etc., if you u se soft

ords. These people will normally talk

) you. The following are questions and

rme additional questions that might

:em of f of the seven.

UESTION NO. 1:

Who is you r doctor?

> Where was your appointment?

(Close, or hundreds of miles away?)

> Tell me about your appointm ent.

> Was it like other doct ors visits youve

had in the past?

> Would you send your mother or child

to this doctor if they were very sick

and need ed accurate and appropriate

medica l care? (One of my favorites.

Youd be surprised how many pe ople say no. )

> How did you pay?

Some things to think about when ask-

ng these questions:

1. Is their recomm endation generic or

does i t have a speci fic dosage o r p lan t

count on it? Remember per the foot

notes in the People v. K elly decision,

a doctor cannot recommend a plant

count, only a dosage amount.

2. Is it a blanket diagnosis for all qualified patients or specific per the qua li

fied patients current medical needs?

3. Is there a trend of doctor shopping by

qualifie d patients?

QUESTION NO. 2:

What medical condition

do you have that would

require you to use medical

marijuana?

> Do es their answer meet the seriously

ill standard set forth in the Health

and Safety Code?

> Do they know what their ailment is?

> Discu ss each ailment with them.

> Is the ailment/illnes s short term or

chronic?

QUESTION NO. 3:

How much marijuana

(medicine) do you use

a day to relieve your

ailments?

> Do es it seem like an appropriate

amount to use?

A person should know how m uch they

if-

use. I know how m uch legitimate medicine

I need to help alleviate my illness or ail

ments. What is appropriate for their current

medical needs? Generally law enforcement

will say that .3 (DEA) to .5 (NIDA) of a

gram is a single dose, or joint. Medical

marijuana advocates state that 1 gram is a

single dose. Dont forget to ask how many

times they dose themselves a day.Also, remember h ow m uch marijuana

costs in your area. Sometimes youll be

conducting your interview and the quali

fied patient will tell you they use a large

amount of marijuana each day to medi

cate themselves and that is why they have

so much marijuana in their possession.

Ive had people tell me they smoke 1/2 to

1 ounce of marijuana a day to medicate

them selves. O ne, its virtually impo ssible

to sm oke that muc h a day, and two, thats

a $200 (plus or minus) per day habit.

Thats $1,400 a wee k or $5,600 a month.

Wow! That is expensive medicine. Not

even the m ost expensive AIDS or cancer

medications cost that much.

QUESTION NO. 4:

How long does the dosage

usually last you?

You may have to start doing some math

here, but basically try to figure out how

long these p eople are high.

> Here you can find out how m any

hours during the day someone is feel

ing the effects of the drug. Sometimes

patients will tell you they medicate

themselves six to eight times a day

and they feel the effects of the drug

after each dosa ge for two to three

hours at a time. This could factor out

to these people being high every wak

ing ho ur o f their day.

QUESTION NO. 5:

What time o f day do

you use?

> Are they using before work, on

their lunch break, at home, before bed?

What do they do for a living? Are

they driving or operating machinery?

Per 11362.785, an employer may

terminate an employee who tests positive

for marijuana.

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continued fro m page 9

QUESTION NO. 6:

Wha t is your preferred

method o f use?

> Are they eating it (leaves, shake, etc.) or

using it in salves, wraps or tinctures?

Most people smoke it (pipe, joint or

bong ). Ive had the oppor tunity to speak

with hundreds o f marijuana users in my

career and the vast majority (85-90%) smoke

their marijuana. If they have bud, they are

smok ing it. It is too valuable and potent to be

wasted in edibles/butter. Studies have sho wn

that there is no medicinal value from mari

juana in its crude, smokable form.

Remember, the manufacture of honey

oil or butane hash oil (BHO) involves

stripping the THC from the marijuana

plant material with the solvent butane. Thischemical-manufacturing process is a crime

per 11379.6 HS (People v. Bergen [2008]).

0UESTI0N NO. 7:

Do you cultivate or

purchase marijuana? I f so,

where and fo r whom?

They may admit to growing dope in their

home good probable cause for a search

warrant. How big is the grow?

Is it reasonable to the qualified patients

needs?

>- Do you grow alone or with others (col-

lective/co-op grows)?

> Whats your yield per grow cycle and

ho w many grow cycles per year?

>- Ho w muc h do you purchase?

How often do you purchase it?

>- How much do you pay?

Where or from whom do you

purchase it?

You can also now open the primary

caregiver window in your conversation

with them. A primary caregiver can also be a qualified patient. Remember the

relationship between a qualified patient

and their primary caregiver must already

exist in and of itself before the marijuana

care giving begin s, and m arijuana

caregiving alone does not meet the

definition of a primary caregiver set forth

in People v. Mentch (2010). If a primary

caregiver just provides marijuana-related

services, he/she is subject to criminal

penalties per 11357-11360 of the Health

and Safety Code.

As 1was preparing this article, the

American Medical Association came out

with their own article regarding the dangers

o f the medicalization of marijuana. The

article was written by doctors Samuel T.

Wilkinson, M.D., and Deepak Cyril DSouza,

MBBS, M.D., and is titled Problems With

the M edicalizat ion o f Marijuana. Here are a

few highlights from the article.

Given that medical marijuana is ap

proved for mostly chronic conditions

that require long-term dosing, physi

cians must be aware of the develop

ment o f tolerance and depend ence (as

evidenced by down-regulation of the

brain cannabinoid receptors), as well as

withdrawal on discontinuation.

Benefits notwithstanding, the potential

harms associated with medical mari

juana nee d to be carefully considere d.

No other prescription medication is

smoked; concerns remain about the

long-term risks o f respiratory prob

lems associated with smok ing marijua

na, which are a subject of active inves

tigation. THC is already available in a

pill approved by the FDA, yet this form

seems to be less desirable to those

seeking medical marijuana; this may in

part be b ecause its eupho ric effects are

not immediate and cannot be reliably

controlled, unlike smoked marijuana.

Furthermore, there is evidence that

marijuana exposure is associated with

an increased risk of psychotic disor

ders in vulnerable individuals.

> Recent findings suggest that long-term

marijuana exposure is associated with

structural brain changes as well as a

decline in IQ.

> A significant but largely overlooked

problem with the medical marijuana

movem ent is the message the public

infers from its legalization and increas

ing prevalence. ... As legalization has

spread for medica l or recreational pur

poses, it is possible that the perception

o f risk by adolescents will continue to

decrease, with a subsequent increase

in use. This is especially problematic

given that many of the negative effects

of marijuana are most pronounced in

adolescents.

> Potentially therapeutic compo unds of

marijuana should be purified and tested

in randomized, double-blind, placebo-

and active-controlled clinical trials.

Toward this end, the federal government

should actively support research exam

ining marijuanas potentially therapeutic

compounds. These compounds should

be approved by the FDA (not by popular

vote or state legislature), produced ac

cording to goo d manufacturing practice

standards, distributed by regulated

pharmacies, and dispensed via a con

ventional and safe route o f administra

tion (such as oral pills or inhaled vaporization). Otherwise, states are essentially

legalizing recreational marijuana but

forcing physicians to act as gatekeepers

for those who wish to obtain it.

Im glad to see the AMA vo iced their con

cerns, just as CNOA has for years regarding

this medicalization issue.

I hope this article helps assist you in fight

ing the g ood fight. If you have any questions

or if I can assist you in any way, please dont

hesitate to contact CNOA, w hich can get you

in touch with me. CNOA

10 I THE CALIFORNIA NARCOTIC OFFICER1

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