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Tuesday, January 13, 2009

Pot grower sues for ‘lost profit’

Sheriff destroyed confiscated plants

A Gasquet man currently facing marijuana-sales charges has sued the Del Norte County Sheriff’s Office for “lost profit” after his marijuana plants were destroyed prior to the dismissal of a previous marijuana-sales case.

Kirk David Stewart, 45, filed the suit Jan. 2, claiming the Sheriff’s Office should have returned 93 confiscated plants to Stewart — or at least the cash amount that could have been made by harvesting them.

The suit states that “Mr. Stewart is requesting the fair market value” of the 93 marijuana plants that were destroyed.

“If there is any truth to the true market value of the marijuana the (Drug) Task Force say they are taking off the streets, then Mr. Stewart’s plants are worth upwards of several hundred thousand dollars,” said Jon Alexander, Stewart’s attorney.

Stewart was arrested in January 2007 after a search warrant was served on a Crescent City residence on Union Street that he owned.

Authorities confiscated 93 plants along with numerous items used to grow marijuana, including grow lights, exhaust fans, ballasts and pots.

The suit alleges that Alexander sent a request to the Sheriff’s Office in August 2007 asking for the return of the plants confiscated from Stewart.

In April 2008, the charges against Stewart were dismissed by the DA’s office because Stewart was found to be in compliance with the Compassionate Use Act of 1996 (Proposition 215), according to the suit.

“He brought these certificates saying there were 10 people he was in care for,” said District Attorney Mike Riese.

Equipment, not plants, returned
Alexander said Stewart’s case should not have taken as long as it did to be dismissed.

“His case did not need to languish for an entire year — allowing his marijuana to rot,” the lawyer said.

In May 2008, the growing equipment had been returned to Stewart at the Sheriff’s Office, but the plants were not, the suit states.

A copy of the evidence release form included in the lawsuit states, “unable to release MJ plants — they were destroyed.”

Riese suggested another reason why the Sheriff’s Office doesn’t ever give back confiscated drugs after a case is dismissed.

“The feds don’t recognize Prop. 215,” he said. “Under federal law, marijuana is an illegal substance.”

The DA said the Sheriff’s Office abides by federal laws and if it gave drugs back to someone who was exonerated, the office could be under federal suspicion for drug trafficking.

“If they do something with it — it’s part of a distribution chain,” said Riese.

New charges pending
Stewart now faces several new marijuana-sales charges.

He is charged in Del Norte County with planting and cultivation of marijuana, possession of marijuana for sale, selling in lieu of a controlled substance (trading in drugs) and being a felon in possession of a firearm, said Riese.

Stewart was arrested at his trailer in Gasquet last April 17 with Fred Kenneth Otremba, 48, of Crescent City, after the federal Drug Enforcement Agency served a search warrant at the trailer with the help of the Sheriff’s Office.

Otremba is currently facing a charge of being a felon in possession of a firearm.

The Sheriff’s Office said Otremba and Stewart were trimming marijuana when authorities arrived.

The arrests were part of a DEA operation called “Operation Green Acres.”

As the lead agency in the raid, the DEA confiscated 100 pounds of processed marijuana, 22 firearms and 84 plants, according to the Sheriff’s Office.

Riese said that because the two men were in Del Norte County when they were arrested, he filed local charges against them — so he wouldn’t have to wait for federal charges to be filed.

Riese said the men have appeared in court and the case will most likely go to trial.

Stewart has already voiced the defense of being a Prop. 215 caregiver just like he did in 2007, Riese said.

“It’s the same thing, he’s saying they are compassionate caregivers —they gave a certificate saying ‘these are the people we care for,’” said Riese.

“So I said, ‘prove it,’” he said, adding that in 2007 Stewart wasn’t required to prove he had been the caretaker of his “clients.”

Riese said Stewart provided him with nearly a dozen of the Prop 215 certificates for the new case.

Alexander has since filed a motion to suppress the warrant that led to the DEA confiscation of the processed marijuana, plants and firearms.

Stewart was already convicted around a decade ago in Del Norte County for marijuana sales, said Riese.

Riese said Stewart was sentenced to 180 days in jail and felony probation after he was found guilty of being in possession of a 10-pound bag of pot for sale.

The DA did not think the Prop. 215 compliance defense will work because of the 100 pounds of pot that were found in the new case.

“It’s just not going to fly this time,” said Riese.

The fate of confiscated drugs
Sheriff Dean Wilson commented on the office’s policies on the confiscation of illicit substances and on what he sees as problems with Stewart and Alexander’s suit.

When processed marijuana —most commonly the dried and packaged buds of the plant — is confiscated it is kept until the case has been adjudicated, said the sheriff.

Wilson said all the processed pot is kept in evidence, and “we’ll test a small portion of the marijuana.”

The test would indicate the THC (tetra-hydra-cannabinol) content of the drug, which is the chemical that gives users the “high.”

“The rest of it will be held in evidence up to the point to where the case is adjudicated,” said Wilson.

Some cases take so long that “the marijuana actually grows mold on it before they would get it back,” said the sheriff.

Wilson said his office hasn’t given back any confiscated drugs, to his knowledge.

He said pot-plant confiscation is different. When plants are confiscated they are literally torn from the ground or planters they are in and thrown in the back of a vehicle.

“We retain a small percent of the plant, then record the amount of THC,” said the sheriff. “Once that is done, it just sits in our impound and rots.”

The sheriff said at the “rotting point,” the plants are shredded and buried, while processed pot is eventually burned.

Wilson said the burning, shredding and burying of confiscated pot occurs in Del Norte County.

“Usually, locally we can take care of the marijuana,” he said.

Wilson said the policy is the same for most confiscated organic drugs, such as hallucinogenic mushrooms.

Chemical drugs, such as methamphetamine, cocaine, ecstasy pills and prescription narcotics, cannot be disposed of in Del Norte County, he said.

“We just don’t have the facilities — so we have to take all the white dope over to Shasta County,” said Wilson.

Once or twice every year, the office clears out or destroys all of its drug evidence for cases that have been resolved, he said.

Misinterpretation of Prop. 215?
The sheriff said that he felt the suit misrepresented Prop. 215.

“The law, the way that it states it, is ‘if I’m growing marijuana for medicinal purposes — I’m not allowed to make a profit from it,’” said Wilson.

“So how could he ask for the profit from the plants?” he said about Stewart and Alexander’s suit.

The sheriff said if Prop. 215 medicinal use is granted, the “personal use” pot is not to be sold or bartered with.

Wilson said that makes the suit’s claim for “lost profit” a moot point.

“If you’re not doing a commercial operation, then what is the profit of a plant that you can’t legally sell?” he asked.

Alexander called Wilson’s interpretation of Prop. 215 “simply not true.”

The attorney said, “I would like to see Sheriff Wilson’s socialist view of medicine extended to the country’s pharmaceutical companies.”