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Medicinal marijuana conflict

Resident's plants were seized in a raid, but he is registered as a legal user

Susan Cunningham

Don Nord, 57, moves his heavy form slowly, step by step, as he carries a box of firewood up to his Hayden townhome. When he reaches the top step, he stops to catch his breath.

Inside, his home is dark. In the living room, a hospital bed and easy chair are aimed at a large television, which is turned on. Nord sits down at his kitchen table and hooks himself up to an oxygen tank.

For Nord, each day can be measured in a series of pains. Since a fall in 1985, in which he hurt his neck and was put out of a long-term job, his health has deteriorated. He has battled kidney cancer, diabetes, a lung disease, phlebitis — an inflammation of veins — in both of his legs, and now is worried cancer has moved to his prostate.

He takes about 20 different physician-prescribed medications.

He also smokes marijuana.

Although a physician can’t prescribe the drug, the state does allow Nord to register as a legal user and grower of marijuana for medicinal purposes.

“I smoke marijuana to help me relax at night, so I can go to sleep at night,” he said. “Otherwise, I don’t sleep.”

In mid-October, officers with GRAMNET, the Grand, Routt and Moffat County Narcotics Enforcement Team, obtained a warrant to search Nord’s home for drugs and confiscated his plants and growing equipment.

On Monday, Nord has a hearing in front of a Routt County judge to try to get his plants and equipment back. Conflicting state and federal laws may make that difficult.

Under federal laws, Nord can’t have the marijuana. Period.

But under Colorado’s law, he hasn’t done anything wrong.

The rules

In 2000, Colorado voters approved a law allowing people suffering from debilitating medical conditions, such as cancer, HIV/AIDS, glaucoma and chronic severe pain, to smoke marijuana. That clause is now written into the state’s constitution.

Colorado is one of eight states that allow medicinal use of marijuana. The practice also is accepted in Hawaii, Alaska, California, Oregon, Washington, Nevada and Maine.

Science shows that smoking marijuana can help relieve nausea, appetite loss and pain that people with severe illnesses experience, said Bruce Mirken, spokesman for the Marijuana Policy Project, a Washington, D.C.-based advocacy group trying to remove criminal penalties for marijuana use.

“The long-term trend has got to be toward allowing seriously ill people to use marijuana with a doctor’s recommendation,” Mirken said.

Nord, along with 280 other Coloradans, is a registered marijuana user through the Medical Marijuana Registry program, which is administered by the Colorado Department of Public Health and Environment.

To get on the registry and receive an identification card, a Colorado resident with a debilitating illness that can be eased by use of marijuana must submit a letter from a doctor and a $140 fee.

Being on the list isn’t a go-ahead to grow acres of marijuana, though. The Colorado law specifies that a registered user can have no more than 2 ounces of a usable form of marijuana and no more than six marijuana plants, only three of which can be mature. It gives no suggestions for how registered users legally can obtain the marijuana or plants.

According to statistics updated a week ago by the state health department, the average age of applicants for the registry is 45. Almost 70 percent are male. Almost 40 percent of the registered applicants live in the Denver-metro and Boulder areas. In Routt County, there are three registered applicants. Nord has been part of the registry since Aug. 28, 2002.

To date, there have been no marijuana-related convictions of patients or caregivers listed on the registry, according to the health department’s updated report.

“However, reluctance to participate due to the inconsistencies between state and federal marijuana laws has been expressed by doctors and patients alike,” the report stated.

Federal supremacy

To the U.S. Drug Enforcement Administration, the inconsistency is not an issue; in the DEA’s eyes, it simply does not exist.

That’s because federal law does not permit marijuana use, said Dan Reuter, special agent and public information officer for the DEA’s Denver field division.

“We really don’t see it as a conflict because our mission is clear and our mandate is clear,” Reuter said. The mandate, he said, is to crack down on users, sellers and producers of illegal drugs, including marijuana.

The federal supremacy clause of the U.S. Constitution says that federal law overrides state law whenever the two conflict, which means that Colorado’s medicinal marijuana law doesn’t hold up in federal courts, Reuter said.

That’s something the DEA does not want to change. No other medicinal drug comes in a smokeable form, and marijuana is addictive and dangerous, he said. Plus, there is a legal marijuana pill on the market called Marinol.

“There’s really no excuse for using marijuana,” Reuter said. “It’s not a bridge to a better place; it’s not medicine.”

In Nord’s case, some of the officials who searched his house were part of GRAMNET, a federal task force that Reuter said should follow federal law.

Reuter said he is aware of at least 10 other instances in Colorado in which federal officers searched someone for drugs and then found the person was registered with the state’s medicinal marijuana program.

In those cases, the officers seized plants, drugs and growing equipment and did not return them. In Nord’s case, as well, Reuter said, administration officials have decided the confiscated drugs and equipment should not be returned.

The search

Attorney Kristopher Hammond is representing Nord at the hearing Monday in front of Routt County Judge James Garrecht. He said that the search warrant and charges against Nord were filed through a state court with a state judge, and so he believes that state law should be followed.

That means, he said, Garrecht should order that the usable marijuana, marijuana plants, paraphernalia and growing equipment be returned to Nord.

“I’m hoping the judge follows the Colorado Constitution, which requires the police to give the stuff back,” Hammond said. “It requires them to take care of it and to return it.”

The state law that Hammond referred to says that any property connected with the use of medicinal marijuana “shall not be harmed, neglected, injured or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana.”

It also states the property should be returned “immediately” when officials decide the user was legally registered and that charges would not be pressed.

The search at Nord’s house took place Oct. 14. A warrant for the search was issued by Garrecht. Hayden Police Chief Jody Lenahan said officers were expecting to find a large growing and selling operation in Nord’s house.

But they didn’t.

They found three marijuana plants, a baggie with some usable marijuana at the bottom, and dried marijuana leaves, which Nord said he was using for fertilizer, in a closet along with seeds, some growing equipment and several other items.

After the search was finished, Nord was issued a ticket charging him with possession of between 1 and 8 ounces of marijuana and possession of drug paraphernalia, according to court documents.

The ticket, which called for a court appearance Nov. 4, was not turned in to the courts until Nov. 6 because it was misplaced, Lenahan said.

Garrecht dismissed the charges Nov. 17 because they were filed late. Charges could be refiled, however, if officials desired.

Deputy District Attorney Marc Guerette, who is representing GRAMNET in the case, first filed a response to Hammond’s Nov. 17 motion Nov. 20. In that response, Guerette contended that under Colorado law, a person with a medical marijuana license can possess no more than 2 ounces of usable marijuana, so that any amount seized exceeding 2 ounces should not be returned.

Guerette then changed his motion five days later to state that, after consulting with the U.S. Attorney’s Office and GRAMNET detectives, it was apparent that the return of drugs and equipment would be against federal law. The amended response asked the court to deny Hammond’s motion to return the property.

“GRAMNET is required not to return the property because … possession of (the property) is a violation of federal law, and GRAMNET is a federal agency,” Guerette said.

If the judge denies the request, Hammond said he and his client will appeal to a higher court.

Both Guerette and Hammond agree the case is novel for the state. Depending on how far it goes in the legal process, it could set a precedent for other conflicts between state and federal rules on medicinal marijuana.

The waiting game

Nord’s grow room is now mostly empty, except for a few florescent tube lights and pots of leftover soil.

Nord spends his days as he did before the search, watching television, driving to the post office and running errands, and sometimes visiting or talking on the phone with friends.

Sitting in his living room, he’s surrounded by paintings and statues of eagles, which he said give him a feeling of freedom.

There’s a Bible on the mantle above the fireplace, and a picture of Jesus that reads: “Jesus, I trust in you.”

God, Nord said, helps him deal with his loneliness and pain.

So does marijuana, he said. Without his plants, during the past few weeks he’s had to find the drug where he can.

He said he knows that the medical marijuana card he carries is a privilege, so he is careful to stay within the parameters of the state law.

When his house was searched, he said he felt confused and upset.

“I didn’t know what I did wrong,” he said. “I said to them that day I didn’t know I did something wrong. I said that over and over.

“After they left, I broke down pretty hard. It made me feel like I didn’t want to be here anymore.”

He wouldn’t mind officials looking around his house to make sure he’s legal, he said. And, though he used marijuana when he was younger, he says he’s not proud of that and doesn’t think anyone without medicinal reasons should use the drug.

What he wants from the hearing on Monday is to get his plants and equipment returned.

— To reach Susan Bacon, call 871-4203

or e-mail sbacon@steamboatpilot.com


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