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Friday, July 18, 2008

Confiscating Medical Records: It All Makes Sense Now, Or Does It?

posted by on July 18 at 10:29 AM

[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.

So what?

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.”

RSS icon Comments


how compromised is the privacy of those records ? have they made any statements addressing that ?

Posted by reverend dr dj riz | July 18, 2008 2:41 AM

Officer Rees, being a bored, bicycle cop is no excuse for such a serious error in judgment. Have you been watching too many episodes of "The Shield"? Eschew obfuscation. Save the fantasy for Comic-Con. Try to remember that you're wearing a uniform that stands for something, not a costume that simply covers your ass to do whatever you want. Seek first to understand, then to be understood. And, if you're going to investigate the accused, be certain that you also investigate the accuser. The guilty dog often barks first and loudest.

Mr. Martinez, when people entrust you with their most private and personal information they expect you to keep it secure. You have a computer; please use it. Scan all paper documents into a digital file on your computer, use contact management software, encrypt all files and disks and make a back up copy of these important files. Store the encrypted backup copy on a secure, remote server or at another physical location, preferably in a burglar-resistant, fire-resistant floor safe or in a bank safe deposit box. Although the law may not yet hold you fully accountable to the HIPAA rules and standards regarding medical records, you should still endeavor to apply them in your practice. Here are some links that you may find helpful:

US Department of Health and Human Services: HIPAA

Adobe Acrobat

Nuance: Omnipage and Paperport

Ghostscript (Open Source alternative to Acrobat)

PDFCreator (another Open Source alternative to Acrobat)

PGP for Home Office and Small Business

TrueCrypt (Open Source alternative to some PGP software)

GNU Privacy Guard (another Open Source alternative to some PGP software)

FreeOTFE (another Open Source alternative to some PGP software)

By the way, if you're looking for other Open Source alternatives to proprietary software, try and

Posted by yawp | July 18, 2008 4:34 AM

Three cheers for Dan Satterberg - this IS the reason I voted for him.

Pox on the Dist Court judge. He needs to be un - elected.

And Satterberg should fire the silly girl deputy.

Jail and court crap can kill people who are already very sick.

Medical mj is not OK for the common cold, get a clue deputy air head.

"Debilitating and terminal"....those are the words in the law

Nice work Dom...nice reporting

Posted by Adam | July 18, 2008 7:32 AM

excellent reporting, dom.

rumor has it the woman who owns the barbershop next door called in the complaint. is there bad blood between her and mr. martinez, or does burning pot well and truly give her a headache? what say ye, dom?

Posted by scary tyler moore | July 18, 2008 8:04 AM

your tax dollars at work.

Posted by ellarosa | July 18, 2008 8:16 AM

and were sure must hire more cops to keep the reign of terror going

even if someone is smoking pot, what the hell, isn't there real crime to tend to?

Posted by Angel | July 18, 2008 8:40 AM

Good coverage.

It is actually the heisted medical records that I find most disturbing. Nobody there was arrested, the prosecutor has said no charges would be filed, and that the records will be returned.

But now the police have doubtless copied the names and info of all those patients.

The police have no business searching medical records. Period. As soon as they determined that the files were medical records, they should have left them alone. Searching medical records far exceeds the authority of the warrant.

Posted by Reverse Polarity | July 18, 2008 8:45 AM

im going to start using a telex machine for my drug operations.

Posted by Bellevue Ave | July 18, 2008 9:07 AM

This is a great time to have you on staff, fo sho

Good info, Dominic.

Posted by Non | July 18, 2008 9:17 AM

Better yet, the police department is so far refusing to return the seized pot. I guess SPD has a problem finding quality green.

Posted by Greg | July 18, 2008 10:20 AM

Dom, kudos on the excellent reporting.  The medical records angle is far from settled, and I have no doubt you're still hard after it.&160; I look forward to seeing the results.

Also, what yawp @2 said, especially the advice to Martinez.

Posted by lostboy | July 18, 2008 10:36 AM

Scan all paper documents into a digital file on your computer

That's a lot easier said than done. Presumably all of Martinez's patients are seriously ill, which means that their patient records are thousands of pages long. The UW Medical Center has money to burn on hiring people to scan those documents, a small clinic doesn't.

Posted by keshmeshi | July 18, 2008 10:42 AM

One get's the impression that SLOG readers are not intelligent enough to scroll down and read the original posting.

SLOG - We insult your intelligence because we can!

Posted by Dingo Rossi | July 18, 2008 10:53 AM

the odor of weed gives the neighbor lady headaches? what a sensitive little flower!

and by "flower", i mean bitch.

Posted by max solomon | July 18, 2008 11:18 AM

Didn't the SPD violate federal HIPAA privacy protections by doing this?

And can't they be sued in civil court for damages to the Washington State privacy rights of said persons?

Just wondering.


Posted by Will in Seattle | July 18, 2008 11:22 AM

So the net result is that an office was trashed, patient records were compromised, and Martinez is out ~$3600 worth of MMj. And the community is better off how?


Posted by Dana | July 18, 2008 12:45 PM

And can Martinez sue the SPD for the cost of replacing the torn down office wall as well?

Posted by Timrrr | July 18, 2008 1:06 PM

12 oz. x 420 > 1080p x 46 in. + 5.1 + PS3 + Wii ?  Seriously?

Vintage Jesus in a soup line, I'm glad I don't smoke the shit!

Posted by lostboy | July 18, 2008 1:13 PM

"And can Martinez sue the SPD for the cost of replacing the torn down office wall as well?"

That would be just the first step, each and every one of the patients also have a good civil rights lawsuit against SPD, and also the jackass who called the cops to begin with. You are not going to easily convince me the caller did not know the office was, and is, a legally operated clinic under color of state law, irregardless of whether she likes the law or not...

Posted by jay | July 18, 2008 1:41 PM

If they don't like the law they should leave.

I hear Canada is hiring cops ...

Posted by Will in Seattle | July 18, 2008 2:05 PM

RE: #12


Most clinics like the one operated by Mr. Martinez are not required, nor should they be required to request or maintain a copy of any patient's complete medical history.

So, the expense of maintaining over a thousand pages of medical records in print or digital format is not required. In most cases, a copy of the patient's medical form/prescription for medical marijuana, a copy of any signed agreements for services provided by the clinic and a basic contact management record are all the Mr. Martinez should need to maintain.

We usually find whatever we seek with a sincere desire. You seek obstacles; I seek passage ways. May your path serve you as well as mine has me.

Good journey.

BTW, for any patients who may read this post take a look at Google Health. It launched earlier this year; so, it's still in early stages of development and deployment. It looks like an interesting and promising method of managing some of the pile of medical records and information. If you want to take a look, here's a link:

Posted by yawp | July 19, 2008 12:30 AM

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