Attorney asks for dismissal of medical marijuana case
A lengthy hearing in 9th District Court in Glenwood Springs could become a landmark case in Colorado constitutional law. Judge James Boyd heard arguments last week for the dismissal of a medical marijuana case in which defendant Jennifer Ryan’s attorney Kris Hammond maintained that the evidence – 131 marijuana plants – were willfully destroyed by members of the Two Rivers Drug Enforcement Team in violation of the Colorado Constitution.Members of the task force admitted they destroyed the plants when they seized them on the evening of Aug. 2, 2004, at a Rifle residence.”Law enforcement needs to be sent a message that if a law is on the books which changes the way you do business, and they don’t bother to find out about it … it’s willful ignorance,” Hammond said, who asked Boyd to dismiss the case.Colorado’s medical marijuana law, Amendment 20, passed by the voters in 2000, says that any property owned or used in connection with medical marijuana cannot be destroyed, but must be held for the defendants and returned to them if the outcome of the case is acquittal.Jennifer Ryan, her husband Gene Brownlee, Brownlee’s nephew, Justin Brownlee, and Drew Gillespie were arrested Aug. 2 at Ryan’s and Gene Brownlee’s apartment at 545 Park Ave. in Rifle. According to the affidavit to obtain a search warrant, the owner of the apartment building gave a caretaker at the apartments permission to enter Brownlee and Ryan’s residence, when the caretaker smelled a chemical odor coming out of a dryer vent on the outside of the building. Upon entering the ground floor of the apartment, the caretaker saw more than 100 marijuana plants in various stages of growth, many of them up to 4 feet high.Brownlee told investigators he could grow pot legally because he has terminal cancer. Ryan said she was a certified caregiver to five people using medical marijuana. According to the law, both medical marijuana users and their caregivers can possess up to six plants, of which no more than three can be in flower, or as many plants as they feel necessary to treat a given medical condition.When TRIDENT officers entered the apartment on Aug. 2, they uprooted the plants, placed the smaller ones in evidence bags and the larger plants in a large plastic container. They took the larger plants to the South Canyon Landfill that night where they were buried.TRIDENT commander Jeremy Ownbey testified that Ryan told him she was certified as a medical marijuana caregiver and was allowed to have as many plants as necessary to perform her duties. Hammond asked if Ownbey was aware of the medical marijuana law at that time. Ownbey said he was not.”So your excuse is ignorance of the law?” Hammond asked.”No, sir, I don’t have an excuse,” Ownbey said.Both Ownbey and task force officer Tim Fisher admitted under oath that they knew they were in violation of the Colorado Constitution when they destroyed the plants.Hammond also said that destruction of the plants prevents him from counting how many plants were actually viable and how many were cuttings in the early stages of growth. One leaf was cut from each of the larger plants before they were destroyed and were kept as evidence.Deputy District Attorney Jeff Cheney argued that the court must prove the officers acted in bad faith and with “a reckless disregard for the truth,” in destroying the evidence. “The officers acted in good faith,” he said.In their testimony, TRIDENT officers said they had no place to store the plants nor a way to keep them alive, and they destroyed them because they posed a potential health hazard if they were stored in the evidence room and allowed to rot. Cheney also said the information Ryan gave about being registered to give medical marijuana was “irrelevant. … We’re talking about a marijuana grow of over 100 plants.”But Hammond countered, “They knew she had certificates, and they destroyed (the marijuana) anyway. … This is a flagrant violation of Colorado Constitution” as well as a violation of the Fourth Amendment of the U.S. Constitution, which protects against unlawful search and seizure.Boyd said he would take the matter under advisement and issue a written decision within two weeks.Ryan pleaded not guilty to the charges of possession with intent to distribute marijuana. A jury trial is set to begin June 14.
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Colorado Parks and Wildlife is urging anglers to stay off the Roaring Fork River between Carbondale and Glenwood Springs during afternoons beginning Saturday.