Thadeus Greenson/The Times-Standard
Posted: 03/29/2012 02:38:29 AM PDT
A 64-year-old Arcata woman filed a lawsuit Wednesday alleging that the city and its police officers violated the rights of her and her late husband when they searched their home last year looking for marijuana.
The lawsuit -- filed by Barbara Sage and seeking unspecified damages -- argues that officers acted on an unlawful warrant, used excessive force and didn't announce their intentions when they entered the Sages' Arcata home on May 27, 2011, looking for evidence of illegal marijuana cultivation that they never found.
More interesting to medical marijuana advocates is Barbara Sage's argument that police didn't have sufficient probable cause for the search because they failed to present any evidence that the Sages' suspected marijuana cultivation fell outside the bounds of state and local medical marijuana laws and regulations.
Arcata City Attorney Nancy Diamond and other city officials either didn't respond to calls seeking comment for this story or declined to comment, saying they hadn't seen a copy of the complaint as of Wednesday.
When previously contacted by the Times-Standard, local officials declined to specifically comment on the search of the Sages' home -- when she 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 -- but said police act in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata's medical marijuana ordinance.
They noted that most violators act under the auspices of medical marijuana and that the hazy state of California's laws make enforcement a complicated endeavor.
Barbara Sage's attorneys, Peter Martin and Jeffrey Schwartz, argue that she and her husband did everything asked of them. They hired an electrician to come in and rewire their garage, making sure it was done to code. They grew only for themselves, according to the attorneys, 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 that utilize no more than 1,200 watts per residence.
”She is the quintessential medical marijuana patient,” Schwartz said of Sage.
In a previous interview, Barbara Sage said she uses medical marijuana to treat hip pain and help with her insomnia, while her late husband used it to help treat prostate cancer and other ailments. She said the couple never sold their marijuana, not even to a collective.
The search warrant served on the Sages' home stemmed from an affidavit in support of a search warrant filed by Arcata Police Officer Brian Hoffman -- who is specifically named as a defendant in the suit -- asserting that there was probable cause to believe the Sages were 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 that he went down to the Sages' Zehndner Avenue home and smelled a “strong odor of growing marijuana emanating from the residence” on May 1.
Hoffman states in the affidavit that he then 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 officer 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.
When officers served the search warrant about two weeks later, they found no marijuana -- growing or processed -- and Sage claims no marijuana had been in her residence since May 5, 2011.
Sage's complaint argues 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 and had no facts to suggest a felony was being committed.
Dale Gieringer, California coordinator for the National Organization for the Reform of Marijuana Laws, said state medical marijuana laws only offer what's called “a limited immunity from prosecution,” meaning prosecutors shouldn't bring a case against someone unless they have solid evidence that it is not for medicinal purposes. That limited immunity currently doesn't apply to search warrants under most interpretations of the law.
Nonetheless, Gieringer said he understands the argument Schwartz and Martin are making.
”I understand where they're trying to go with it, but nobody's taken the law this far,” he said.
Schwartz said he realizes this, and thinks the case may ultimately be decided by a higher court and could potentially shift the landscape of state medical marijuana law. Schwartz said he hopes the suit is successful locally, but said he is fully prepared to move the case up the chain if a judge throws it out locally.
”This is Humboldt County,” Schwartz said. “We should be the ones taking the lead on this. Nobody else is doing it, and we get more of these cases than most counties.”
University of California Hastings associate professor of law Hadar Aviram previously told the Times-Standard that she thinks Sage's claim is an interesting one that highlights the hazy world of California's medical marijuana law.
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.”
Aside from the probable cause issue, Sage argues that police violated the “knock-notice” rule, which requires them to announce their presence and that they are serving a warrant when entering someone's home, and that Hoffman failed to include a statement of expertise and qualifications to support the warrant. Further, Sage claims officers used unnecessary force when they came into her home with guns drawn, allegedly pulled her sick husband from bed -- tearing oxygen tubes from his nose -- and put him on the ground in handcuffs.
”This rough treatment affected his mood drastically, and he went into a state of depression after the search that hastened his death,” the suit states.
Speaking generally, and not about the Sage case, Arcata Police Chief Tom Chapman said he and his officers have no interest in going after legitimate medical marijuana patients. He said the department relies heavily on PG&E records when investigating suspected grow houses, noting a strong relationship between electricity consumption rates and grow sizes. Chapman added that there's no such thing as a “legal” grow in California, noting that state medical marijuana laws only offer a “defense for a crime.”
Schwartz indicated he'd like to see Sage's complaint change that, lending medical marijuana patients the same privacy rights as other citizens. However, Schwartz said, Sage would have been happy not to bring the suit if the district attorney's office or local law enforcement had agreed to require that search warrants rely on evidence that marijuana grows fall outside of medicinal bounds before issuing them. Schwartz said those conversations had little traction, so Sage is suing in an effort to make sure no other legitimate patients wind up in the situation she did -- with police guns pointed at them as officers search their homes.
Schwartz and Martin said the suit specifically names Hoffman in an effort to show that the officers who sign their names on affidavits in support of search warrants can and will be held personally liable.
”Our primary goal at this point is to let law enforcement in Humboldt County know that their days of having a free pass are over,” Martin said.
On the web:
Watch a video of officers entering the Sages' home
Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com.
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