Monday, December 24, 2007
C.A. Rules Peace Officer No Expert on ‘Medical’ Marijuana
Panel Says Jury Wrong to Rely on Police Testimony About Defendant’s Intent to Sell
By STEVEN M. ELLIS, Staff Writer
Police officers who have only limited experience dealing with people who possess marijuana legally do not have a sufficient basis to determine whether such persons intend to sell it, the Fourth District Court of Appeal ruled Friday.
In a unanimous opinion, Div. Three reversed Christopher James Chakos’ conviction for possessing marijuana for sale based on a lack of evidence, saying the police officer upon whose expert testimony the conviction was based had no expertise in differentiating between individuals who possess marijuana lawfully for their own consumption, and those who possess it unlawfully with the intent to sell.
Writing for the court, Justice David G. Sills said:
“Mere and undefined ‘contact’ with undefined “investigations” is manifestly not substantial evidence that an officer is in any way familiar with the patterns of individuals who, under state law, may lawfully purchase marijuana pursuant to a physician’s certificate under the Compassionate Use Act, nor does it show any expertise in the ability to distinguish lawful from unlawful possession.”
Chakos was arrested in 2004 after officers from the Orange County Sheriff’s Department conducted a traffic stop of his vehicle that revealed the presence of 7 grams of marijuana, or just under a quarter of an ounce, as well as $781 in cash and a doctor’s medical slip for lawful marijuana use.
A subsequent search of his apartment uncovered almost six more ounces of marijuana divided amongst glass jars and plastic baggies in differing, “irregular” amounts, 99 empty baggies, a digital gram scale, and a closed circuit camera system displaying the walkway leading to Chakos’ front door.
Under California’s Compassionate Use Act, Chakos was entitled to possess up to eight ounces of marijuana. However, Deputy Sheriff Christopher Cormier concluded, based on the “totality of the circumstances,” that Chakos possessed the marijuana for sale, a conclusion Cormier offered as an expert while testifying as the sole witness at Chakos’ trial.
In support of his expert qualifications, Cormier pointed to 680 hours of “general” training at the police academy, and 270 hours of “narcotics training.” He also said that he had been in the department’s narcotics unit for six years, where he had assisted more than 100 investigations for possession or sale of narcotics.
Cormier told the trial court that the precise quantity of marijuana found in the car, as well as the scale, the packing material and the surveillance system, supported his conclusion that the amount was more consistent with a sale than with personal use.
However, on cross-examination, he admitted that he had never actually arrested an individual who possessed marijuana legally. He also conceded that Chakos was a phlebotomist who used similar baggies as those found in his room to take blood specimens, and that Chakos’ relatives had told him that the surveillance system was the property of Chakos’ step-brother, who sometimes stayed at the apartment with Chakos and their mother.
On appeal, Chakos argued that insufficient evidence existed to sustain his conviction given his physician’s certificate and Cormier’s area of expertise on lawful marijuana possession.
Relying on People v. Hunt (1971) 4 Cal.3d 231, where the California Supreme Court held that a narcotics officer’s expert opinion that a defendant intended to sell a controlled substance that he possessed by prescription was insufficient to sustain a conviction for possession for sale because the officer did not have sufficient expertise with the lawful use of the drug, Sills agreed.
Noting that Cormier’s experience was limited to cases where he had “contact with investigations” concerning defendants who had engaged in unlawful conduct, Sills wrote that “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale… is what is conspicuously missing in the case before us.”
He also said that a reasonable trier of fact could conclude that the presence of “irregular” amounts of marijuana in Chakos’ apartment demonstrated an intent not to sell the drug.
“[W]hile marijuana may be lawfully possessed under the Compassionate Use Act, it is not exactly easily obtainable in open, licit circumstances…,” he wrote. “One might posit, then, that individuals who may lawfully possess marijuana under state law for medicinal purposes will have patterns of purchase and holding that will reflect the practical difficulties in obtaining the drug.”
Sills opined that these practical difficulties could also explain the scale.
“[A]nyone with the lawful right to possess marijuana will need to take precautions not to insure that he or she does not get ‘ripped off’ by a dealer, but that he or she does not possess more than the eight ounces contemplated by the Act,” he said. “Practical difficulties of obtaining the drug also explain why a patient entitled to possess it under state law might want to keep an extra supply on hand within the legal amount, since supplies would not be reliable.”
Conceding that these arguments were speculations that that could be contradicted by expert testimony on the record, Sills said Cormier’s inability to do so because he lacked sufficient expertise was precisely the point.
“The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale.
Sills was joined in his opinion by Justices Richard M. Aronson and Richard D. Fybel.
A phone call to the Attorney General’s Office seeking comment was not returned.
Chakos’ attorney Kristin A. Erickson told the MetNews that she was “absolutely thrilled” by the decision. She said that it meant that the government could no longer “put the same old expert on, even though times and the law have changed,” and predicted that law enforcement agencies would now need to update their training to address lawful, as well as unlawful, marijuana possession.
The case is People v. Chakos, 2007 S.O.S. 7464.
Copyright 2007, Metropolitan News Company