SECOND RIFLE MEDICAL MARIJUANA CASE DISMISSED

Police Destroy Pot Plants

Charges against a second defendant in a medical marijuana case have
been dismissed because police destroyed pot plants that could have
been used as evidence.

District Attorney Colleen Truden's office dropped charges Tuesday
against Gene Brownlee after Judge Dan Petre upheld a defense motion
to suppress evidence in connection with the disposition of the
plants, saying cuttings and photographs of the plant are insufficient evidence.

Petre's ruling is similar to one in May by Judge James Boyd that
resulted in the dismissal of charges against Brownlee's ex-wife,
Jennifer Ryan. It also raises doubts about the prosecution's case
against a third defendant, Justin Brownlee, who is Gene's nephew.

"Each case is different. Each case has its own facts and law and
stuff that applies," said Assistant DA Vince Felletter.

However, because the Brownlees are codefendants, prosecutors will be
considering Petre's ruling as they go forward, Felletter said. Justin
Brownlee appeared in court briefly Nov. 10 and his next court
appearance was delayed until Jan. 12, pending the outcome of his
uncle's trial. That trial was to have been held next week.

Felletter said the DA's office had little choice but to drop the
charges against Gene Brownlee after Petre's ruling. He said
Prosecutors were left with too little evidence to prove guilt beyond
a reasonable doubt.

The cases arose from an investigation in 2004 by the Two Rivers Drug
Enforcement Team, or TRIDENT. It reportedly confiscated 130 marijuana
plants from Ryan and Brownlee's apartment.

Ryan, Gene and Justin Brownlee and Drew Gillespie were charged with
various counts of possession of marijuana with intent to distribute.
Gillespie pleaded guilty last December to conspiracy to
sell/distribute, and received a deferred sentence and was ordered to
do 75 hours of public service.

Ryan said she was certified to grow and administer marijuana for
medical purposes. Gene Brownlee said he was using the drug to treat his cancer.

TRIDENT disposed of most of the pot plants, relying largely on photos
and videotape of them, and leaf cuttings. Colorado's medical
marijuana state amendment requires that plants taken as evidence must
be kept alive.

Petre concluded that the number of plants taken into evidence could
have had a bearing on whether the pot-growing operation was
small-scale, in keeping with the medical marijuana amendment, or
commercial, nonmedical and illegal. Gene Brownlee is entitled to
verify the amount of plants confiscated, and that the number claimed
by authorities wasn't inflated by means such as photographing the
same plant more than once, the judge found.

"In examining the good faith of the officers, the court does not
ascribe any malevolent intent to their decision to destroy the
plants," Petre added.

However, he also noted that a TRIDENT commander, contacted by
officers, failed to suspend the plant's destruction when Ryan claimed
she was legally entitled to grow them under state law.

"That the commander, who was in radio contact with the officers at
the site of the seizure, did not suspend the destruction of the
plants pending a further investigation of her assertions undermines
any claim that TRIDENT's actions were an innocent mistake arising out
of ignorance of this particular law," Petre wrote.

Garfield County Sheriff Lou Vallario, TRIDENT's chairman, has said
the agency was not aware of the law's requirement to preserve
confiscated plants, "though admittedly we should have been." He also
has criticized the medical marijuana law, saying it basically
requires law enforcement to cultivate marijuana.