News Confiscating Medical Records: It All Makes Sense Now, Or Does It?
posted by July 18 at 10:29 AMon
[This was originally posted last night]
Last night, I got a copy of the warrant used to search and seize patient records from a medical-marijuana group’s office on Tuesday. (Previous coverage is here and here. The full affidavit and warrant are in a .pdf here.)
In a sworn statement used to get the warrant, Officer Brian Rees, an SPD bicycle patrol officer assigned to the University District, said he responded to complaint that a storefront on The Ave emanated the smell of marijuana. A neighbor said the odor gave her headaches, and directed the officer next door. When Rees knocked at the door, he looked in the front window and saw Martin Martinez, the shop’s proprietor, walk up to let him in. Inside, the officer saw lighting supplies, packaged soil, books about growing, and filing cabinets labeled “patient” files. He observed three people at a small table labeling envelopes, one of whom said she was a volunteer doing “secretarial work.” Beyond the main room, the officer observed a desk with an electronic scale that appeared to have marijuana residue, labels that the officer says were for “medicinal marijuana,” and a computer and a printer that Martinez said he used to make identification cards. Martinez explained this was an organization to help medical-marijuana patients (hence all the stuff). Rees also observed a tub containing what would turn out to be 12 ounces of pot leaves, which Martinez is authorized to use under state law. But the officer also said there was unaccounted space in the walls that he believed may have been used for growing or storing pot. Based on these and other observations, plus some “supporting evidence” (a blanket description of narcotics-traffickers’ behavior, which we’ll come back to), the warrant was supported by Senior Deputy Prosecuting Attorney Ellen O’Neill-Stephens, and signed by county district Judge Douglas J. Smith.
After getting the warrant, police searched the premises, and removed a wall looking for plants. They didn’t find any plants. But they did find 500 patients’ medical records, which the officers confiscated.
To cast this in the best light possible, let’s say that these statements provided probable cause to justify a warrant—that Martinez was overstepping the medical marijuana law by growing marijuana out of his storefront and providing it to more than one person.
We all know the intent of the Medical Use of Marijuana Act, passed by 59 percent of voters in 1998, is to protect seriously sick and dying people from being jailed for using marijuana. The medical files observed by police showed that, if this was dispensary—which Martinez says it wasn’t—all of the patients were authorized under state law. That still doesn’t explain taking private records.
And the officer’s statement doesn’t even indicate Martinez was running a dispensary or growing. A portion of the affidavit describes behavior typical of narcotics traffickers and pot growers. Martinez doesn’t fit those criteria.
Drug traffickers typically “conceal weapon on their person… utilize electronic equipment such as computers, telex machines, facsimile machines… keep evidence of their crimes at their place of residence.” At marijuana growing operation, certain indicators include “a private individual, suspicious of persons who might be interested of his/her activities… individuals [who] … use telephonic pagers… …large amounts of cash… a location that is remote or go to a great deal of trouble to disguise a marijuana grow…use filtering systems to mask the strong odor of growing marijuana… [and] lighting equipment [that] … generate tremendous heat…”
To address those points: No weapons were observed. Everyone has a computer and cell phone these days, not just drug traffickers, and nobody uses a goddamned telex machine anymore. There was no specific evidence of distribution, such as price lists, cash register, cash box, etc. No cash was reportedly observed. Martinez let them in; he wasn’t suspicious of them because he believed he was complying with the law. Okay, this one kills me—a great deal of trouble to disguise the marijuana? His store is on The Ave… with glass windows… that the officer looked right into when he walked up. Some disguise. Obviously no filtering was used to mask the smell of marijuana, as the officers were there because it smelled like marijuana. No report of lighting equipment in use, just the unused legal type on the shelves, and no “tremendous heat,” except for the heat from the sun Tuesday. If this were actually a grow operation, there would have been dirt or water on the ground, but nothing like that was reported. In fact, by the officers description, the place had volunteers labeling envelopes, a computer, and filing cabinets of medical records that made it look like… an office.
So is it any surprise that after Martinez told the officer he wasn’t growing marijuana, dispensing marijuana, or stashing marijuana behind the wall (which officers ripped out after they got the warrant), that the cops found… an office?
More after the jump.
One more point for the olfactory sensitive, the officer swore that he believed pot was growing because he had previously “smelled both fresh marijuana and marijuana that has been smoked and can distinguish between the two.” Uh, obviously not. He searched the premises and didn’t find any pot growing. The cops did, however, find and seize private medical records, the computer, and 12 ounces of Martinez’s medical marijuana.
Given the evidence—or lack thereof—the right thing for cops to have done is talk to Martinez, determine if he’s a legal pot patient, tell him to kill the smell, and leave.
So was this warrant justifiable under the state law? Did it embody the spirit of deprioritizing marijuana enforcement under city law? After searching the premises and failing to find plants or a dispensary, is there an explanation for seizing private medical records?
“We are satisfied that the individual in question is authorized to possess marijuana for medical purposes under state law,” County prosecutor Dan Satterberg said in a statement, “and that the amount within his possession was arguably within the “60-day supply permitted by statute.”
County prosecutor spokesman Dan Donohoe says, “There will be no charges, and the [medical-records] files will be returned to Martin Martinez.”