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Patient files claim for confiscated pot

SLO Sheriff's Department could be forced to pay for destroying cannabis worth $36,000

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BURNED :  Yes, this is marijuana. No, it’s not the six pounds that used to belong to Kimberly Marshall, because that was destroyed—even though no criminal charges were ever filed against her. - FILE PHOTO
  • FILE PHOTO
  • BURNED : Yes, this is marijuana. No, it’s not the six pounds that used to belong to Kimberly Marshall, because that was destroyed—even though no criminal charges were ever filed against her.
Was it sheer contempt of the law or a bureaucratic bumble? Whatever happened, the county could be on the hook for nearly $40,000 to replace Kimberley Marshall’s pot.

The 46-year old Los Osos resident filed a claim for damages against Sheriff Patrick Hedges and the county alleging the sheriff’s department unlawfully seized, and then had destroyed, six pounds of medicinal marijuana. If successful, Marshall could be the first medical marijuana patient in San Luis Obispo County awarded monetary compensation for confiscated cannabis.

Marshall, a survivor of liver cancer, suffers daily chronic pain after two surgeries for lumbar and other injuries, among multiple afflictions, according to the claim filed Dec. 23. She is seeking $36,000—$6,000 per pound of marijuana destroyed—plus attorney fees and damages.

On March 31, sheriff’s deputies entered Marshall’s home in a warrantless search involving her son, who was on probation. Somehow during the course of the search, deputies discovered her 18-month supply of marijuana, which the claim states was secured in a locked closet in her bedroom.

The deputies were reportedly told by Marshall’s son the marijuana was medicinal and she was contacted; over the phone, she explained her condition and demanded the pot be left at the home. The claim also states that Marshall’s documentation was visible to the deputies during the search, but when she returned, she allegedly found it behind some furniture in her bedroom. 

Marshall was told by deputies that once she showed proper paperwork, her property would be returned. Four months later, when finally interviewed by a deputy, she presented her physician’s letter of recommendation and told deputies further documentation of her medical condition was in the possession of her lawyer at the time, Harold Mesick, who said he was in contact with the district attorney’s office regarding the pending criminal charges. On September 1, the district attorney rejected the criminal case based on her medical defense.

Then something strange happened. The very next day the sheriff’s department notified the D.A.’s office that the cannabis in lockup was no longer needed—that they had not received a request for a return of property nor deemed the marijuana for medicinal purposes—and requested the D.A. obtain a court order for its destruction.

On Oct. 5, the D.A. filed the request, and four days later, Judge Dodie Harmon ordered the property destroyed. Unaware of this, Mesick filed a request for the return of the property on Oct. 22 and was later told by the county counsel that it had already been destroyed and that the sheriff’s department had no record of Marshall’s physician’s recommendation.

Asked why the return request was not made until a month after the D.A. rejected Marshall’s case, Mesick could not comment.

“Basically, due process wasn’t followed in this case,” said Louis Koory, Marshall’s civil attorney. “Every citizen has a right to retain their property. There is a procedure that needs to be followed, and in this case,
it wasn’t.”

According to Koory, because there were no pending criminal charges, and because Mesick had already established Marshall was a qualified medical cannabis patient, the sheriff’s department violated her due process rights and deprived her of the use and value of her property by having the cannabis destroyed. Koory told New Times he has no indication that the destruction of Marshall’s property was contemptuous and that it may have been as simple as a lack of communication between two agencies.

“We’re not saying it was intentional, but it doesn’t have to be intentional,” Koory said. “It could very well be negligent. Bottom line is, she’s owed money.”

The sheriff’s department could not comment on the case either, except to say that it’s a publicity stunt by medical marijuana activists.

“Cases like these are brought on by the medical marijuana lobby as a way to garner publicity,” sheriff’s department spokesman Rob Bryn said. “And in this case, the sheriffs department is not willing to play along.”

“All I can tell you is that this case is much more complicated than originally reported,” he added.

According to Bryn, department protocol for the destruction of property deemed either illegal or no longer related to a criminal case varies depending on the type of property. When it comes to marijuana, he said, it is taken to an undisclosed location out of the county in an armed caravan and incinerated with state and federal oversight.

Should Marshall succeed in her claim, she would be the first medical marijuana patient in the county to be reimbursed for seized marijuana.

In July, a landmark ruling in Butte County determined a qualified medical marijuana patient may continue an action for damages against the county for the alleged unlawful seizure of medical marijuana plants. While the Marshall case does not involve plants per se, Koory maintained that the Butte case provides a legal precedent for their claim.

The SLO County Sheriff’s Department has earned a reputation as particularly aggressive when it comes to medical marijuana. In 2008, Sheriff Pat Hedges refused to return a small bag of pot to Arroyo Grande resident D. Craig Steffens, even after Steffens established he had a physician’s recommendation and criminal charges against him were dropped. A judge ordered Hedges to return the cannabis, but Hedges refused until threatened with a contempt-of-court order. 

Under county medicinal marijuana law, a qualified patient can possess up to eight ounces of pot, unless a licensed physician recommends a larger quantity.

According to Koory, Marshall’s claim is in review and the county counsel has six months to accept or reject it. He expects the latter. At that point, Marshall could choose to file a civil lawsuit against Hedges and the county.

Staff writer Matt Fountain can be reached at mfountain
@newtimesslo.com.

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