June 9, 2012 in City

Grow house search ruled illegal

Officers didn’t consider medical marijuana law change
By The Spokesman-Review
 
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Background and the latest updates

Possession OK

under recent change

U.S. District Judge Frem Nielsen’s ruling – to suppress all materials gathered from a raid of a large marijuana grow house in northwest Spokane County – stems from a rewrite of the law approved by legislators last year that specifically stated possessing medical marijuana was not a crime.

A recent court ruling that deemed a drug raid illegal has raised questions about how law enforcement in Spokane County investigate marijuana growers.

Sheriff’s detectives had reason to believe marijuana was being grown at a northeast Spokane County home when they raided it Nov. 2, but they didn’t have reason to believe the growers were violating the state’s medical marijuana law – or at least they didn’t say they did when they got authorization from a local judge to search the home.

A federal judge ruled the search violated Washington’s recently expanded law governing medicinal marijuana and last week prohibited prosecutors from using marijuana plants and other items seized at the large grow house.

Now a federal grand jury indictment against five young men, two of whom have previous drug convictions, is in limbo, and drug detectives in Spokane are wondering how they’ll continue investigating marijuana growers.

“We’re kind of biding our time to see how this thing turns out,” said sheriff’s Detective Lloyd Hixson, who investigated the case. “We probably don’t want to spend a whole bunch of energy investigating something that’s going to get thrown out.”

George Trejo, a Yakima-based lawyer who represents one of the men charged, said he doesn’t believe the government has enough evidence to proceed. The ruling by U.S. District Judge Frem Nielsen suppressed everything gathered during the search, including statements made by defendants.

The U.S. Attorney’s Office has asked Nielsen to reconsider his decision. The office did not return phone calls seeking comment this week.

Hixson said he was “floored” by Nielsen’s decision and is hopeful it will be reversed. He said he and his coworkers are awaiting feedback from county prosecutors about how the ruling might affect cases prosecuted in state court. If the ruling stands, “It would really frustrate our ability to investigate marijuana grows,” Hixson said.

The ruling stems from a rewrite of the law approved by legislators last year that specifically stated possessing medical marijuana was not a crime.

Before then, medical marijuana was considered a defense – law enforcement could arrest users and make them prove their case in court. That changed in July, but Spokane County sheriff’s detectives didn’t consider that when they raided the home last year, Nielsen ruled.

“The 3-month-old law was clear, and the officers should have been aware of its requirements,” the judge said.

Two suspects, Jerad J. Kynaston, 23, and Samuel M. Doyle, 25, were released from jail last week. Each have previous convictions in Oregon for possessing 10 pounds of marijuana and had been in custody since a federal grand jury indicted them in February.

Kynaston also was convicted in Spokane County in 2009 for possessing 5 pounds of marijuana.

Three other suspects, Jayde D. Evans, 24, Brice C. Davis, 25, and Tyler S. McKinley, 27, were out of jail awaiting trial. Two others, Corey E. Mobley, 29, and Peter M. Magana, 23, pleaded guilty prior to the judge’s decision to throw out all evidence against them. Magana is seeking to be released from jail despite a sentencing scheduled for Sept. 12. A judge is set to consider his request June 11.

“Imagine how they feel?” said Trejo, who represents Doyle. “They could be pretty screwed unless the government wanted to say, you know what, we believe your guilty plea should be set aside. I doubt they’ll do that.”

In court documents, prosecutors argued that the Washington Legislature did not intend to change the affirmative defense when they rewrote it. In his ruling, Nielsen called that opinion a “tortured reading” of the law that contradicts its plain language.

Hixson and other detectives with the Spokane County sheriff’s drug unit arrested the suspects Nov. 2 during a search at 11900 N. Judkins Road, which is west of Newman Lake and east of Forker Road. A news release at the time said they seized 8 pounds of harvested marijuana, 695 marijuana plants and 500 plants that recently had been harvested.

The release noted that medical marijuana provider forms were located at the home and that a patient had told sheriff’s detectives that he contracted with someone at the Judkins Road address to supply him medical marijuana, but that the grower was selling it to other people.

It also noted that the state medical marijuana law had recently been changed to allow up to 10 people to grow up to 45 plants together. But it didn’t mention the change in the law that Nielsen ruled is so crucial to law enforcement investigations.

Hixson said it’s difficult to know whether suspected marijuana grows are legal under medical marijuana laws without searching them.

He said the power supply at the Judkins Road home was extraordinarily high and showed much more usage than just a 45-plant operation.

But in most cases, “you just don’t know that for sure,” he said. “It depends on how many lights are being used, the quality of the lighting” and other factors.

There also isn’t a database of authorized medical marijuana users that law enforcement can access, he said.

“For 99 percent of our marijuana grows, we just simply wouldn’t be able to write the warrant anymore,” Hixson said. “It kind of ties our hands.”

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