Welfare check or illegal search and seizure?

DT reader relates his experience with police and marijuana arrest

Edgar Rascon
Daily Titan Staff Writer
Sunday, December 7, 2008

A few months ago, John Roe was surfing the internet when he found an article that assured him he was not alone.

The story was of Bruce Benedict, a former Seal Beach resident, who filed a $1 million lawsuit against the Seal Beach Police Department after he claimed officers confiscated 40 to 50 marijuana plants, forced him to move out of the city and tried to make him a police informant. Benedict claims it was legal to have the plants because he was a caregiver to medical marijuana patients and a patient himself.

Roe, 27, a resident of Seal Beach and a medical marijuana patient, is facing one count of cultivation of marijuana, a felony, stemming from an incident, which occurred with the Seal Beach Police on March 1, 2008.

Roe's story highlights the difficulties patients of medical marijuana face â?? even in a state where medical marijuana is legal â?? and how contradicting laws can create a confusing legal gray area.

Roe's lawyers assert that this case resulted from an illegal search and seizure and that he is protected by Proposition 215 or the Compassionate Use Act, which protects medical marijuana patients from criminal penalties for possession and cultivation for personal use.

"This particular case should not have gone this far," said Stephanie Loftin of Long Beach Law, one of the attorneys representing Roe.

"In my opinion I think what we have is a couple of cowboys who got a little overexcited when the call came in" continued Loftin. "They got a call from a worried mama and all they had to do was knock on the door and tell him to call home."

Roe's lawyers are challenging the legality of a search conducted by the officers to decide whether the police needed a warrant, or had sufficient evidence to enter his residence. Roe's lawyers also hope to establish a standard procedure for police conducted welfare check-ins for future cases.

In October, Roe and his attorney's were denied a motion to have evidence in the case suppressed on the basis that it was obtained during an illegal search and seizure, which violated the 4th amendment. He has pleaded not guilty and if his lawyers' efforts to get the case dismissed fail, his case stands to go to trial on Dec. 18.

The judge ruled that given the circumstances â?? Roe's mental history, his alleged initial denial of owning guns and the expired prescription â?? the officers were not unreasonable in searching the apartment and confiscating Roe's guns and marijuana-cultivation equipment. Futhermore, Roe would have to answer to the cultivation charge.

A rough night with some rough cops

According to Roe, the series of events began one evening when he suddenly dropped and broke the new laptop his mother had purchased for him.

"I was upset and needed someone to talk to," Roe said.

He tried calling his mother who lived in Kentucky, but could only get her voicemail.

"I asked her to call me as soon as she could and said I felt like I was having a mental breakdown," he said about the voicemail.

He was woken up by the ring of his cell phone around 6:20 a.m. Stacy Dortch, Roe's sister was calling to check on him. She explained their mother was worried because she couldn't get a hold of him.

After briefly explaining the events of the previous night, Roe told his sister he was going back to sleep and that he would call their mother when he woke up. So he was surprised when his phone rang again a few minutes later.

It was his sister again. She said that in her worry, their mother had called the police to conduct a welfare check-in on him and that they were already on the way. Roe was still on the phone when he heard a knock at the door.

"I have to go, I think that's them," Roe said before hanging up.

It was approximately 6:40 a.m. when he opened his door to find three officers standing outside, two of them had their guns drawn, according to Roes.

"Officer Mike Henderson had his pistol out of the holster, and Officer Gonshak was in full riot gear holding an AR-15 assault rifle," Roe said. "I remember seeing the SWAT on his chest," he recalled.

He did not see a weapon on the third policemen, Officer Steven Chauncey.

After asking how he was doing, to which Roe responded he was fine, Roe said Officer Henderson asked him to step outside so they could talk. The Kentucky native initially refused and again tried to reassure the men he was OK.

"There was police officers pointing guns at me, which was scary. I grew up around guns, avidly hunted but have never had a loaded gun pointed at me," Roe said.

Roe said he then took a step back into his apartment at which point Henderson grabbed him by the wrist, pulled him out of his apartment, handcuffed him, and began to pat him down while inquiring about a gun.

Although he owned two firearms at the time, Roe said he initially told Henderson he didn't have a gun because he thought the officer was asking if he had one on his person.

Roe claims that as he sat handcuffed outside, Henderson entered his apartment. It was at that point that Roe began to yell to the officer that he did not have the right to search his property.

Henderson reemerged and asked Roe where he kept his gun. When he realized what the officer meant, Roe directed him to where his guns were located.

The police told Roe they received a call from his mom who was worried because he owned a gun and could be suicidal. Roe also said one of the officers told him they had been to the residence 10 years earlier and stopped the resident from committing suicide. This information had police on guard despite the fact that it was a different resident who had lived in the apartment nearly a decade earlier.

"In California, if there is an issue of mental health, we have the right to go into a residence and secure the firearms," an officer explained to Roe that night. The incident was recorded by a device on one of the officers belt and a copy was obtained by the Daily Titan.

"It's a statute," he added.

According to the police report, both guns were found in their cases unloaded underneath Roe's bed, One an antique pistol with special significance to Roe.

"My great-uncle gave it to my dad after serving in WWII, and when my dad died, it was the only thing I had to remember him by," Roe said.

According to his narrative of events, Officer Mike Henderson stated that Roe was first contacted at his door by only two officers, and that he was still outside the apartment when he asked Roe if he had any weapons â?? which he said Roe denied.

Henderson also stated the weapons were found during a search of the apartment after the discovery of the marijuana plants, which conflicts with a copy of the incident inquiry report that shows the guns were discovered first. It also conflicted with another witness' statement.

A search of the apartment turned up no evidence indicating suicide, according to the Seal Beach Police Department.

The officers did find something in the second bedroom â?? a small plant cultivation system. The setup contained lights, wiring, nutrients, a watering system and four small plants.

All four were either dead or dying and unable to produce the dried buds that are used for smoking according to Roe's attorney.

The SBPD told Roe the first 5-minutes of the recorded incident were accidentally deleted.

Roe and Loftin said those few minutes are vital to his case, because they contradict statements made by Henderson; especially if the officer asked about the guns prior to entering the residence, how and where they were located and if the officers even made an attempt to determine Roe's mental state.

Roe obtained a medical marijuana prescription shortly after moving to California in 2005.

Like many teenagers, Roe first smoked marijuana with a friend. He said it was mostly out of curiosity, but almost immediately noticed how it helped with his symptoms.

"Medical marijuana has been the most successful treatment for my anxiety and for my depression," Roe said.

At the age of 13 he was diagnosed with various forms of anxiety and depression and although the medication he was prescribed helped ease the symptoms, it often left him feeling worse.

The CUA was voted into law in 1996 and allows patients and primary caregivers â?? a person assigned by the patient â?? to possess and grow small amounts of marijuana for a patient's personal use.

California Senate Bill 420 which passed in 2003 set forth specific guidelines for the amount of marijuana a patient or designated caregiver may possess or cultivate.

California's Official Legislative Information Web site states that a patient or primary caregiver may possess no more than 8-ounces of dried marijuana. They can also have no more than 6 mature or 12 immature marijuana plants.

Roe said he wanted to grow his own marijuana to save money. However, he was unsuccessful in growing any plants and when his prescription expired in January, he unhooked the equipment and left the plants to die.

When he couldn't locate the expired prescription, the officers confiscated his firearms and cultivation equipment.

"Don't try to play the game, alright!" an officer yelled. "You got caught, deal with it!"

Roe said he didn't want to put the equipment and dead plants in the trash out of fear his neighbors might see it. He told officers that he did not renew his prescription because he was trying to quit.

Despite his effort, Roe ended up renewing his prescription.

After some further questioning the officers left Roe in his apartment. He was not charged with any crime, but the supervising officer is heard telling Roe on the recording that if there was enough evidence then they would file a complaint and he could be arrested.

Worried about the potential negative impact on his career, Roe got a lawyer. In an attempt to preempt any charges, Roe's attorney sent the senior police officer his past and renewed prescriptions.

The Aftermath

About a month later he received a letter in the mail from the District Attorney ordering him to appear in court on the cultivation charge. The official reason for the charge was because Roe's prescription was expired at the time of the incident.

According to the incident report, the officers were dispatched to perform a welfare check-in, and arrived at Roe's apartment at approximately 6:40 a.m.

The police definition of a welfare check-in is vague at best, however their intent is to ensure the safety of a person. However, at least 10-minutes before they arrived, the officers were aware that contact had been established with Roe and confirmed he was not going to hurt himself.

Given this information, the officers said they still felt concerned for their safety and Roe's, and it was best to approach his apartment with guns drawn, including an assault rifle, which was not disputed in court.

Shortly after this incident, he was laid off from his job with the City of Bellflower. He applied at several different cities and made it through the rigorous application process, only to be denied when the background check revealed the marijuana charge.

As his training and education is geared towards municipal work, he has not been able to secure a job.

Unemployed and unwilling to apply for public assistance, Roe has relied on credit cards along with the support of his family and neighbors. He has accumulated over $80,000 worth of debt and is on the brink of bankruptcy.

"I should have already filed for Chapter 7, but I don't have the money to pay for the paperwork to file," Roe said.

He said he has also fallen behind on his training since California is constantly updating its codes and laws and courses can cost thousands of dollars.

The little income he does make comes from doing things for his neighbors â?? like driving one to the airport, or helping another paint their apartment. Occasionally, his neighbors will even help with groceries and other neccesities. His mother, strapped with her own guilt for her role in what happened, is paying his legal fees.

"It's sad that such a good person can be put through something like this," said Aro Rauhut, a neighbor. "This has completely devastated him."

Interestingly, the month prior, a jury decided on a case that involved medical marijuana patients and prescriptions.

According to the California Courts Web site, in the case of People v. Windus the appellate courts ruled that medical marijuana patients are not required to periodically renew a prescription, and may claim a defense at trial under the CUA.

"We see nothing in the statute that requires a patient to periodically renew a doctor's recommendation regarding medical marijuana use," the jury decided.

Roe and his attorneys hope this will be the deciding factor at trial, if the case doesn't get thrown out before then.

Until then he sits in the legal limbo created by that fateful night.

http://www.dailytitan.com/welfare_ch...ch_and_seizure
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Comments
Itâ??s shocking to the conscience to imagine this happening once, let alone twice in the same sleepy OC beach city, by the same officer [Henderson]. Despite your feelings regarding medicinal marijuana- which should be considered secondary in my case; imagine opening your door to officers with weapons drawn, without probable cause or exigent circumstances being ripped from your apartment and handcuffed, without warrant an officer entering your apartment while you protested, â??No, no, no! You do not have the right to search my property!â? Imagine having no criminal background, nor run-ins with the law to have warranted such contact, then being charged with a felony that carries a 3 year state prison sentence. It happened to me, but this easily could have been you. Since my case is ongoing, I need to only state facts and hold back my feelings. Despite the story reporting there were 4 plants, there were only 3 plants which were dead/dying and 8-10â? tall.

Interestingly, a copy of the Seal Beach Police Dept. Search & Seizure (Section 322) policy I obtained through public information states, â??Both the United States and the California Constitutions provide every individual with the right to be free from unreasonable government intrusion. As a general rule, members of this Department should not physically enter any area where an individual has a reasonable expectation of privacy in order to conduct a search or seizure without: A valid search warrant; or Exigent circumstances; or Valid consent.â? None of which they had. Nor was I ever read Miranda Rights before they began questioning.