Wednesday, August 19, 2009
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C.A. Revives Prosecution of Marijuana Dispensary
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal yesterday reinstated felony charges against the operators of a Palm Desert business the defendants contend was a legal medical marijuana dispensary.
Div. One said a Riverside Superior Court judge erred in ruling that CannaHelp was a “primary caregiver” under Proposition 215—which provides that only the patient or caregiver may grow marijuana for medical use—and in quashing a warrant authorizing police to search for evidence of illegal activity on the premises.
The ruling gives prosecutors a new opportunity to convict Stacy Robert Hochanadel, the founder of CannaHelp, and co-managers and owners James T. Campbell and John R. Bednar on charges of possession of marijuana for sale, transportation of marijuana, and maintaining a business for the purpose of selling marijuana.
Hochanadel started the business in 2005 as Hempies, but later changed the name to CannaHelp. He obtained a city business license for a medical marijuana dispensary, and established procedures designed to limit sales to persons who have a doctor’s authorization to use marijuana for medicinal purposes.
The Riverside County Sheriff’s Department investigated the business in early 2006, conducting surveillance of the premises and obtaining a warrant to search the home of a marijuana grower it believed was supplying CannaHelp. That search produced evidence of a full-scale growing operation.
A sheriff’s detective, Robert Garcia, sent an undercover officer to CannaHelp with a manufactured physician’s statement, but employees would not sell the officer marijuana because they could not verify the legitimacy of the statement. They later sent an officer to a doctor, who authorized the officer to use marijuana for treatment of chronic back pain.
The officer went to CannaHelp, presented his authorization, signed a statement designating the dispensary as his primary caregiver, and was allowed to purchase marijuana and given instructions on how to use it. He paid $290 for an ounce of marijuana, and later purchased another half-ounce for $290.
Garcia then sought a warrant to search the premises. Noting that he was a trained and experienced narcotics investigator, he detailed the investigation and opined that the business—which had an ATM on the premises and charged considerably more than street price—was illegally operating for profit and that the business could not be considered a caregiver under Proposition 215.
Garcia obtained the warrant, which led to the seizure of marijuana and other evidence and Judge David P. Downing granted the motion to suppress and dismissed the case. He reasoned that Garcia was not qualified to opine on the defendants’ compliance with the laws because he was not an expert on medical marijuana legislation, and that CannaHelp qualified as a primary caregiver because it was operating openly, in compliance with state and local regulations, and selling only to authorized persons.
But Justice Gilbert Nares, writing for the Court of Appeal, said the detective’s affidavit was appropriately considered, that CannaHelp and its operators do not qualify as primary caregivers, and that even if the warrant was deficient, the evidence should not have been suppressed because the officers relied on it in good faith.
To be a primary caregiver under Proposition 215, the jurist explained, it is not sufficient for a person or entity to be designated as such by an authorized medical marijuana user; there must be a relationship between the parties independent of the supplying of the drug.
“There is no evidence CannaHelp or the defendants had such a relationship with the customers who purchased medical marijuana from them,” Nares wrote. “A storefront dispensary that merely provides walk-in customers with medical marijuana does not possess the type of ‘consistent’ relationship necessary to achieve primary caregiver status.”
The justice went on to explain that even if CannaHelp is not a caregiver, its owners would have a defense under the 2003 Medical Marijuana Program Act if the business qualified as a medical marijuana “cooperative or collective.” Nares rejected the prosecution’s argument that the MMPA amended Proposition 215 without a public vote, which would make it unconstitutional
The MMPA did not alter Proposition 215, but established a medical marijuana regulatory scheme independent of the initiative, the justice said. But the MMPA did not necessarily render the defendants’ activities legal and did not invalidate the search warrant, Nares concluded, because the officers had reason to believe that CannaHelp was not operating within the statute.
A cooperative or collective, the jurist explained, cannot operate for profit and cannot sell marijuana obtained from a source other than its own membership. While the defendants may still raise an MMPA defense at trial, Nares said, the nature of the business—including the fact that it had a high volume, charged a high price, and operated on a cash-only basis—gave Garcia probable cause at the time the warrant was issued to believe that CannaHelp was a criminal enterprise.
The case is People v. Hochanadel, 09 S.O.S. 4979.
Copyright 2009, Metropolitan News Company