Chapman said there is no such thing as a “legal” medical marijuana grow in California

A 64-year-old woman has submitted a claim for damages against the city of Arcata that her attorneys hope has the power to cause a sizable shift in the world of California's medical marijuana law.
On its consent calendar Wednesday, the Arcata City Council is expected to reject a claim for damages from Barbara Sage stemming from a May police raid of her home.
The rejection is a pro-forma response to all claims submitted against the city, but it will likely spawn a civil suit against the city that could have wide-ranging implications throughout the state, taking aim at Proposition 215's status as solely an affirmative defense for people arrested or charged with marijuana possession or cultivation.
The claim -- based on injuries allegedly suffered by Sage and her late husband, Charles Sage, 67 -- alleges that Arcata Police officers unlawfully searched the Sages' Zehndner Avenue home early in the morning of May 27, when Sage opened her door to an officer disguised as a utility meter reader only to have about a dozen officers enter her home with guns drawn. No marijuana was found on the premises.
While officials declined to comment specifically on Sage's claim, they said law enforcement acts in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata's medical marijuana ordinance. However, they noted that most violators do so under the auspices of medical marijuana and that the foggy state of California's
laws make enforcement a tricky endeavor. Sage's attorneys, Peter Martin and Jeffrey Schwartz, argue that she and her husband did everything by the book. They hired an electrician to come in and rewire their garage, making sure it was done safely and to code. According to Schwartz and Martin, the couple grew for themselves and two other qualified patients, making sure their indoor garden was within the confines of Arcata's medical marijuana land use ordinance, which allows for grows of up to 50 square feet and utilizing no more than 1,200 watts per residence.
In an interview last week, Sage said she and her husband had done about 10 grows over the last five years in their garage, yielding about three to four pounds of processed marijuana each time to be split between the four patients, leaving enough for Barbara Sage to treat her painful hip and help with her insomnia and to help treat Charles Sage's prostate cancer and other ailments. The couple never sold marijuana, Sage said, not even to a collective.

Sage said her last harvest occurred some time prior to the May 27 search and that no marijuana had been grown or stored at the residence since May 5.
When California voters passed the Compassionate Use Act in 1996 to decriminalize marijuana for medical use, they were thinking about people like Barbara Sage, Schwartz said.
”She's exactly the person who is supposed to be protected,” he said.
But, they argue, she wasn't.
On May 27, Arcata Police Officer Brian Hoffman filed an affidavit in support of a search warrant, asserting that he had enough probable cause to suspect the Sages of committing a felony. Acting on a tip from an unnamed “state park employee” who reported that he commonly smelled growing marijuana coming from the Sages' residence, Hoffman stated in the search warrant that he went down to the house himself and also smelled “the strong odor of growing marijuana emanating from the residence” on May 11. In the affidavit, Hoffman said he also noted a surveillance camera at the residence and later got a search warrant for Pacific Gas and Electric Co. records, which indicated the household's electrical usage ranged from 2,796 kilowatt hours to 5,362 kilowatt hours in each of the three prior months. The average Humboldt County household consumes about 500 kilowatt hours of electricity per month.
Hoffman submitted the affidavit -- which was signed off on by Humboldt County Deputy District Attorney Max Cardoza -- and received a search warrant signed by Judge Dale Reinholtsen the same day.
In Sage's claim, Martin and Schwartz argue the search warrant was unlawful and shouldn't have been issued, as smell was the primary source of probable cause.
”The whole smell thing in Arcata is kind of weak, where every other house is growing pot,” Martin said. “How can you tell where the smell is coming from? I mean, it's Pot City U.S.A.”
Further, the attorneys argue that Hoffman and his fellow officers took no steps to investigate whether the Sages' grow fell within the guidelines of Arcata's medical marijuana ordinance prior to getting a search warrant.
”They have no facts to suggest there's a felony being committed,” Schwartz said. “They're essentially getting warrants to do compliance checks.”
Speaking generally, and not about the Sages' case, Arcata Police Chief Tom Chapman said his officers do everything possible to make sure they aren't searching 215-compliant grows but said just about every grow operation in the city claims to be for medical purposes. Chapman said his department puts a lot of weight in PG&E records.
”Typically, there is a relationship between electrical consumption and the size of a grow or the number of grow lights, which typically relate to the size of the operation,” Chapman said, reiterating that he has no interest in searching operations that are compliant -- or even close to compliant -- with the complications associated with prosecuting borderline cases.
But Chapman said there is no such thing as a “legal” medical marijuana grow in California.
”It is not legal to possess or cultivate marijuana in California,” he said. “Proposition 215 simply created a limited legal defense. Proposition 215 allows for a limited defense for certain qualified patients to possess certain quantities of marijuana for medical use, or for their qualified caregivers to possess or cultivate certain quantities of medical marijuana.
”That's all it did,” Chapman continued. “It is not legal. It is a defense for a crime.”
There's no question that was true initially, Schwartz and Martin concede. However, the pair argues that the Medical Marijuana Program Act -- California Senate Bill 420 passed in 2003 -- outlines a whole “scheme of collectives and primary caregivers,” in Martin's words, and local ordinances have codified medical marijuana possession and cultivation as principally permitted uses.
”There's 2,000 dispensaries in California,” Martin said. “Are you going to tell a judge that (law enforcement) can go into any of them at any time simply because there is marijuana growing there?”
University of California Hastings associate professor of law Hadar Aviram said, from the little she knows of it, Sage's claim is an interesting one and highlights the murky world of California's medical marijuana law.
For a valid search warrant, Aviram said officers need evidence giving probable cause to believe a crime is being or has been committed. In today's day and age, smelling marijuana coming from a residence or even evidence of high energy usage might not be enough, she said.
”Maybe in a post-215 world, the smell of pot isn't enough to tell you if a person is committing an offense,” she said. “Maybe what they're doing is perfectly legal.”
Aviram said she sees both sides of the argument. You have patients on the one hand who are doing everything by the book but could still see a parade of police barge into their house. On the other, you have police trying to enforce a law that has so much gray area the only answer is to go into someone's home and see what they find.
”It all comes down to how much do we expect the police to verify the situation before they walk in,” she said, “and I see good arguments on both sides.”
Humboldt County District Attorney Paul Gallegos said the situation is complex. He said he expects officers getting search warrants to make efforts to determine that the subjects of the warrants are operating beyond the boundaries of Proposition 215, but that the gray area of the state's medical marijuana laws almost ensure there will be mistakes -- both abuses of the law that go unchecked and legitimate patients who wind up on law enforcement's radar.
Ultimately, Gallegos said, marijuana should be legalized and regulated entirely above in the open, like every other medication or agricultural activity. Until that happens, Gallegos said, speaking generally and not about any specific case, the law will remain hazy for those trying to enforce it. “If you give us blunt instruments to perform surgeries, we're probably going to be removing some body parts,” he said.
Sage said she only hopes her claim will lead to some protections for patients like her -- people trying to operate by the book.
”I wanted to do this just to make sure there are laws in place to protect the 215 patient,” she said.

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• ”It is not legal to possess or cultivate marijuana in California,” he said. “Proposition 215 simply created a limited legal defense. Proposition 215 allows for a limited defense for certain qualified patients to possess certain quantities ofmarijuana for medical use, or for their qualified caregivers to possess or cultivate certain quantities of medicalmarijuana.
  
  
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