Judge: Return marijuana

County court sides with state law

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— A Hayden resident who uses marijuana for medicinal purposes should have growing equipment and 2 ounces of the drug that were seized in a search returned to him, a county judge ruled Monday.

The decision, which had to account for conflicting state and federal drug laws, may set an important precedent, Routt County Judge James Garrecht said.

"Obviously, this case has the potential of going a whole lot further than just this court," Garrecht said after giving his decision. "This may be a precedent-setting case a whole lot further down the road."

Several ounces of usable marijuana, three marijuana plants and growing equipment were taken during a GRAMNET search of 57-year-old Don Nord's home in mid-October. GRAMNET, the Grand, Routt and Moffat Narcotics Enforcement Team, is a federal task force made up of local officers.

Deputy District Attorney Marc Guerette, who represented GRAMNET, had no comment on the judge's decision and said he wasn't sure whether he would pursue an appeal, which would go to District Court if it was filed.

During the hearing, Nord's attorney, Kristopher Hammond, argued that because the search warrant was served through a state court and charges were dismissed through the state court, the officers should follow state law and return the property.

Garrecht then asked Hammond to clarify the state and federal laws, which he did.

Under a Colorado law that voters approved in 2000, people suffering from debilitating medical conditions, such as cancer, HIV/AIDS, glaucoma, and chronic severe pain, are allowed to grow and smoke marijuana. Colorado is one of eight states that allows medicinal marijuana use.

Nord, who has battled kidney cancer, diabetes, a lung disease, and other illnesses, is listed with the state's Medical Marijuana Registry program.

But according to federal laws, none of that matters; marijuana is an illegal drug for everyone.

Hammond also directed the judge's attention to part of the state law that says that property seized from someone registered to use medicinal marijuana should not be harmed or neglected and should be returned.

"All of a sudden, this marijuana they seized under a state order now becomes federal property," Hammond said. "My suspicion, judge, is they're just trying to do an end run around this case."

After the search, Nord was issued a citation for the possession of between 1 and 8 ounces of marijuana and possession of drug paraphernalia. Those charges were dismissed, Garrecht said, because the citation was filed late.

Garrecht asked why those charges were filed in a county court, and Guerette replied that he was not sure, but that it didn't matter because the marijuana and growing equipment are now federal property. He also said that it was clear that GRAMNET officers operated under federal laws.

Hammond cited an Oregon Court of Appeals decision in which marijuana was seized from a man who was allowed to use it for medicinal purposes. Federal officers argued it would violate federal law to return the drug, but a local court said the drug should be returned, a decision which was upheld by the appeals court.

Guerette said the Oregon court's decisions were not binding for this county, but Garrecht said that because neither lawyer was aware of a similar case for Colorado, the Oregon case offered some important precedent, which he used in making his decision.

Garrecht then ordered that the seized property be returned. Hammond said that the marijuana plants were uprooted so they probably had died, and Garrecht responded that those would not be returned.

Two ounces of usable marijuana, along with containers, a 1,000-watt bulb, pipes, a scale, rolling papers and several other items were ordered to be returned within 21 days. Some of those items, Guerette said during court, had been shipped to a federal lab in San Francisco.

Before the hearing ended, Hammond said, "Your honor, my client just asked me if he can grow marijuana again."

Garrecht replied that he did not give out legal advice.

-- To reach Susan Bacon, call 871-4203

or e-mail sbacon@steamboatpilot.com

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