POT CLUBS CALL RAID WARRANTS ILLEGAL

State Judge OK'd A Federal Sweep

The warrants federal drug agents relied on to search 13 medical
marijuana dispensaries last week were signed by a San Diego County
Superior Court judge, not a judge from U.S. District Court.

That's no small distinction for some dispensary operators and medical
marijuana activists. They note that marijuana is legal under
California law if it's recommended by a doctor, and state judges are
bound by state law.

The circumstances surrounding one of the largest raids of its kind in
California have left patients, caregivers, advocates and defense
attorneys scratching their heads.

Although no charges have been filed, dispensary operators fear arrests
are imminent. They worry about where patients can get marijuana now,
and what the government will do with patient records it seized. They
want to know who ordered the searches, and they're suspicious of the
timing.

The sweep followed by just weeks a decision by the Board of
Supervisors to flout state law and refuse to issue identification to
qualified medical marijuana patients in San Diego County.

"The fact that state law was used raises interesting questions," said
Dale Gieringer of California NORML, a group working to reform
marijuana laws. "Were the raids instigated by the feds, or rather by
county law enforcement? Was there a connection to the county's recent
decision to sue against the state ID card system?"

As many as 29 dispensaries have set up shop in San Diego County over
the past years, according to the U.S. Drug Enforcement Administration.
Many had client lists of several thousand patients. The government
seized those records last week, but officials say they do not plan to
pursue criminal charges against patients.

"We believe the charges we bring to the District Attorney's Office
will involve drug trafficking," said Misha Piastro, a DEA spokesman.

Jon Sullivan, who owns two dispensaries that were searched last week,
noticed immediately that Superior Court Judge John Thompson signed the
warrant federal agents handed him last Monday. Sullivan considers it a
conflict of interest.

"I asked them about it, and they wouldn't comment," Sullivan said
later. "It's important because it's a county judge violating state
law. . . . I think it will help with the appeal - if there is one."

Thompson declined to discuss the jurisdictional conundrum.

Some criminal defense attorneys suspect that the DEA turned to local
prosecutors because the U.S. Attorney in San Diego has not indicted
anyone for using medical marijuana since 2002, when activist Steve
McWilliams was arrested on unlawful cultivation charges.

That case ended badly. Facing years in prison, McWilliams pleaded
guilty and was free on bail awaiting an appellate ruling when he
committed suicide in July. He overdosed on the prescription drugs that
were supposed to substitute for the pain-relieving marijuana he was
prohibited from using.

Timothy Coughlin, chief of the narcotics division of the U.S.
Attorney's Office, said his office pursues every case that warrants
prosecution.

"If they didn't result in federal prosecutions, it's because we didn't
deem them meritorious," he said.

Coughlin declined to say how many investigations did not result in
indictments. He said his office participated in discussions with other
law enforcement agencies over what to do about the rising number of
dispensaries opening in San Diego.

"We were very concerned, and we are interested," Coughlin
said.

But attorney David Zugman is not so sure. Zugman represented
McWilliams in his appeal, a case that was quietly dismissed after
McWilliams' death. Federal prosecutors generally like to talk up their
successes, he said.

"If the U.S. Attorney is involved, they're usually more than happy to
say 'We did this,' " Zugman said. "They don't think the state law
matters. They've been upfront about that from the very beginning."

The DEA, which led the countywide task force conducting the
simultaneous raids in San Diego and San Marcos, downplayed the
significance of which judge signed the warrants.

Piastro said the sweep was part of an ongoing investigation that began
six months ago, days after the U.S. Supreme Court upheld the federal
government's authority to prosecute medical marijuana cases. If
evidence suggests crimes occurred, cases could be presented to federal
or county prosecutors, he said.

"The warrants were executed as an investigative tool," Piastro said.
"We are still investigating whether any charges will be brought, and
where."

Damon Mosler, who runs the San Diego County district attorney's
narcotics unit, expects the evidence collected during the raids will
land on his desk - not in the U.S. Attorney's Office.

Mosler said he will consider the state's medical marijuana laws in
determining whether to charge the dispensary owners, who maintain that
they are handing out medicine - not selling drugs.

"Sometimes I'll agree with them, and sometimes I will not," said
Mosler, who has rejected medical marijuana cases brought to his office
by San Diego County law enforcement agencies in the past. "Some of
them were just selling to anybody."

Mosler said investigators found that the overwhelming majority of
people buying marijuana at the dispensaries did not appear sick or
unhealthy. He said communities that want legitimate avenues for
dispensing the drug need clearer regulation.

"There are political answers to this," he said.

Medical marijuana activists worry the San Diego action was the
beginning of what could be a statewide clampdown. The fear appears to
be unfounded.

Federal prosecutions in California are divided into four districts run
by an appointed U.S. Attorney, who is responsible for deciding which
crimes to make a priority given their limited resources.

"Whether to federally prosecute a medical marijuana dispensary is a
decision vested with each United States Attorney's Office, working in
conjunction with the DEA," said Larry Brown, the top assistant in the
Eastern District of California.

Before the U.S. Supreme Court decision in June, federal prosecutors
had to brief Justice Department officials in Washington, D.C., if they
planned to raid dispensaries, Brown said. That policy has since been
relaxed.

"We will continue to focus on large-scale marijuana cultivation and
distribution," Brown said. "Our view is that state law does not give a
blanket exemption for cannabis clubs."

Patients such as John Tear of El Cajon remain conflicted. Dispensaries
that abuse state law deserved to be shut down, said Tear, a
34-year-old veteran who said he uses marijuana to relieve symptoms of
Gulf War Syndrome.

But legitimate patients need a place to get their medicine safely, he
said.

"I just want to be able to do legally what Californians have voted
for," Tear said. "I don't want to have to worry about guns being put
in my face or getting ripped off."