CA: C.A. Rules Peace Officer No Expert on ‘Medical’ Marijuana

—– Original Message —–
From: "Richard Lake" <rlake@mapinc.org>
To: <mmjlist@cannabismd.org>
Sent: Tuesday, December 25, 2007 12:20 AM
Subject: [mmjlist] US CA: C.A. Rules Peace Officer No Expert on ‘Medical’
Marijuana

> Newshawk: Herb
> Pubdate: Mon, 24 Dec 2007
> Source: Metropolitan News-Enterprise (Los Angeles, CA)
> Copyright: 2007 Metropolitan News Company
> Contact: http://www.metnews.com/lettertoeditor.htm
> Website: http://www.metnews.com/
> Details: http://www.mapinc.org/media/3326
> Note: Accepts LTEs from subscribers only.
> Author: Steven M. Ellis, Staff Writer
> Referenced: The opinion http://drugsense.org/url/3063rABP
> Bookmark: http://www.mapinc.org/mmj.htm (Marijuana – Medicinal)
>
> 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
>
> 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."
>
> Traffic Stop
>
> 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 28.5 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.
>
> Precise Quantity
>
> 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.
>
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