Excessive Force In Marijuana Search?

by Daniel Mintz, April 4, 2012

A 66-year-old Arcata medical marijuana patient has filed a lawsuit against the City of Arcata and police officers who allegedly carried out an illegal search of her home that included excessive force against her seriously ill husband.

Zehndner Avenue resident and medical marijuana patient Barbara Sage filed the civil lawsuit last week and is seeking punitive and other damage awards for alleged police misconduct that contributed to her husband’s death.

According to the lawsuit, the June 1 search of Sage’s home was carried out by at least ten officers and eight of them – some “with guns drawn” — entered the house after an officer dressed as a utility worker knocked at the door.

Sage’s husband, Charles, who was 67 years old at the time and is now deceased, is alleged to have been treated with excessive force. The lawsuit states that Mr. Sage, a medical marijuana patient who had lung disease and Hepatitis C, was in the living room of the house when police entered. The officers handcuffed him too tightly, the complaint continues, and “made him lie on the floor.”

A press release from Sage’s Arcata-based Attorneys, Peter Martin and Jeffrey Schwartz, includes more detailed allegations. “Charles Sage was sleeping in his bed with the assistance of oxygen tubes in his nose,” it states. “Officers pulled the tubes from his nose before they forced him to the floor.”

A subsequent search yielded no marijuana and according to the lawsuit, none had been present since May 5. No charges were filed against the Sages, who had grown about 50 marijuana plants in their house well prior to the search, according to the lawsuit.

The lawsuit claims that the actions of police caused “physical injury” to Charles Sage’s wrists and triggered “severe emotional distress, depression and a shortened lifespan.” The alleged police misconduct is described in the complaint as elder abuse and the “rough treatment” is alleged to have caused depression severe enough to have “hastened his death.”

Another main aspect of the complaint is its allegation that the search warrant was based on sketchy leads.

A May 27 search warrant affidavit by Arcata Police Officer Brian Hoffman – who is the only officer specifically named in the lawsuit – states that a jogger noticed the smell of marijuana coming from the Sages’ home during his morning runs and he reported it to police.

On May 11, Hoffman and Officer Kevin Stonebarger went to the home and in the affidavit, Hoffman states that he smelled the “strong odor of marijuana” on the west side of the house. He noted that there was no other residence immediately to the west.

Hoffman also obtained PG&E records and said they showed “electrical usage that is indicative of past and/or current indoor marijuana cultivations” at the house.

The lawsuit complaint describes the warrant’s claims as “defective” and notes that the electrical usage records cited in it show a decrease of 47 percent, “Which would lead to a conclusion that even if cultivation had previously occurred, it had now ceased.”

The lawsuit argues that the search warrant affidavit included “false statements or omissions of material facts” and failed to establish probable cause.

In the press release on the lawsuit, Schwartz said one of its goals is to influence a change of approach. “Maybe, just maybe, a lawsuit of this kind may make the police departments in

Humboldt County think twice before invading a person’s home to check out their Prop. 215 status,” he said.

Arcata City Attorney Nancy Diamond was out of town and unavailable for comment. Arcata Police Chief Tom Chapman said he couldn’t comment on the specific allegations included in the lawsuit but he generally talked about some of the procedures and issues involved with searches.

Chapman said search warrants are approved by judges who look for sufficient evidence and “I feel more comfortable if our officers have a deputy district attorney look at it to make sure we meet those standards.” Hoffman’s affidavit was also reviewed and approved by Deputy District Attorney Max Cardoza.

Proposition 215, the state’s medical marijuana law, allows an “affirmative defense” against prosecution, Chapman continued, but does not bar police from carrying out searches and enforcement actions.

The odor of marijuana is not enough to establish probable cause for a search, Chapman said, although it can be weighed as evidence along with other factors such as electricity usage.

He added that “it’s a waste of time and not necessarily appropriate or consistent with community values to expend resources on small medicinal grows.”

Asked about searches that fail to yield marijuana, Chapman said not finding it at a suspected grow scene doesn’t necessarily refute the conclusions of warrant affidavits. They cite evidence of suspected criminal activity that has occurred, is occurring or will occur but marijuana and other evidence can be removed from a location between the time a warrant is prepared and its execution, he continued.

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