Metropolitan News-Enterprise


Friday, March 15, 2002


Page 3


Doctor’s Letter Didn’t Vitiate Probable Cause for Marijuana Search—C.A.


By a MetNews Staff Writer


Sheriff’s deputies executing a warrant to search a private residence for evidence of marijuana possession and cultivation were not required to stop the search when the homeowner produced a doctor’s letter saying he needed to use the drug for medicinal purposes, the Third District Court of Appeal ruled yesterday.

Justices affirmed Stephen Ray Fisher’s convictions on weapons charges resulting from a 1999 search of his Siskiyou County residence. Deputies discovered a cane sword—an illegal weapon—and ammunition in the home of the three-time convicted felon.

The warrant, for a search of the entire residence, was issued after a deputy sheriff swore that he saw marijuana plants while participating in a flyover of the property. When the officers came to search, Fisher showed them a “certificate” from a doctor and claimed  he was entitled to “compassionate use” of the drug under Proposition 215, the medical marijuana initiative approved in 1998.

The deputies continued to search, finding marijuana as well as the sword and the ammunition. Fisher was charged with multiple marijuana offenses, possession of a cane sword, possession of ammunition by a felon, and theft by false pretenses—based on his having allegedly sold marijuana under the pretext of being a caregiver for medical users.

Fisher moved to suppress all of the evidence under Proposition 215. The motion was denied, the judge finding that officers’ knowledge of the certificate didn’t vitiate the probable cause for the issuance of the warrant.

Jurors found Fisher guilty of the weapons violations and not guilty on the remaining counts. Siskiyou Superior Court Judge Richard Kaster granted probation.

Justice Harry Hull, writing for the Court of Appeal, said the deputies had no alternative other than to complete the search. A warrant, he noted, is a court order, “not an invitation that officers can choose to accept, or reject, or ignore, as they wish, or think, they should.”

There may, the justice acknowledged, be circumstances in which officers are “confronted with facts that are so fundamentally different than those upon which the warrant was issued” that they would be required to secure the premises and return to the issuing magistrate for further instructions.

But a claim based on Proposition 215 would not suffice, Hull said, because the initiative merely creates an affirmative defense and a doctor’s approval does not affect the determination of probable cause.

“Defendant’s claim to the officers that he had a certificate that allowed him to legally possess marijuana for medicinal purposes asserted an affirmative defense,” Hull elaborated. “Investigation of the truth and legal effect of defenses to criminal charges is what motions and trials are for; to hold otherwise would create disorder and confusion.”

In an unpublished portion of the opinion, the justice said the description of the entire premises as the place to be searched was not overbroad. Given the deputy’s observation during the flyover, Fisher’s prior criminal record, and the tendency of marijuana growers to conceal processed marijuana and tools of the trade in their homes, Hull said, there was good reason for an extensive search.

The case is People v. Fisher, 02 S.O.S. 1369.


Copyright 2002, Metropolitan News Company