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May 29th
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Home News Latest Federal judge grants preliminary injunction against county of Lake over warrantless marijuana searches

Federal judge grants preliminary injunction against county of Lake over warrantless marijuana searches

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LAKE COUNTY, Calif. – A United States District Court judge on Tuesday granted a group of medical marijuana patients a preliminary injunction against the county of Lake's enforcement of marijuana cultivation rules through warrantless searches.

US District Judge Thelton Henderson enjoined the county of Lake, its employees and officers from enforcing Ordinance No. 2997 – known also as Measure N – “through warrantless searches or summary abatement actions without consent, unless doing so is necessary to prevent immediate physical harm to persons or property, the destruction of evidence for a criminal case, or the escape of a criminal suspect.”

Henderson's action, however, does not invalidate Measure N.

Voters passed Measure N, which provides guidelines for medical marijuana cultivation in June. It originally had been passed unanimously by the Board of Supervisors last December as Ordinance No. 2997 but early this year was forced to a referendum through a signature gathering effort.

Measure N – which went into effect on July 11, following the final certification of the June primary election's results – includes rules that govern the size of indoor grows and also prevent outdoor grows in neighborhoods, specifically in community growth boundaries.

In early August, the Lake County Sheriff's Office – which is responsible for enforcing Measure N – carried out a series of eradications throughout different communities in the county, including Spring Valley near Clearlake Oaks.

In late August a group of medical marijuana patients who had their plants eradicated sued the county of Lake, Sheriff Francisco Rivero, Undersheriff Chris Macedo, Lt. Loren Freeman of the California Department of Fish and Wildlife, Community Development Director Rick Coel and 50 unnamed individuals.

The plaintiffs included Mona Allen, Carl Ray Harris, Jonathan Holt, Shaun Jones, Scott Outhout, Elvin and Nina Fay Sikes, Nicole Van Schaik, Preston Warren, the California Chapter of the National Organization for the Reform of Marijuana Laws and 200 unnamed individuals.

The plaintiffs argued that their state and federal constitutional protections against unlawful search and seizure, invasion of privacy and a denial of due process had been violated as their properties were searched without consent. In some cases, they alleged that law enforcement cut gate locks to get into their properties.

Following an early September hearing on a request for a temporary restraining order, Henderson denied the plaintiffs' request, saying he did not find that their claims met the legal standard required to grant the order.

However, he left open the possibility that they could pursue the preliminary injunction, and in granting it on Tuesday Henderson noted that, “while Plaintiffs were denied a TRO based on their failure to adequately demonstrate a likelihood of irreparable injury absent the issuance of injunctive relief, they have successfully done so in the intervening weeks.”

Judge faults county for failing to obtain warrants

In his 16-page decision, Henderson noted that the plaintiffs didn't have a heightened standard for obtaining a preliminary injunction as the county had argued.

As a result, Henderson explored four “prongs” for determining whether the plaintiffs should receive the preliminary injunction: they were likely to succeed on the case's merits, they were likely to suffer irreparable harm absent the injunction, the balance of equities favors the plaintiffs and an injunction is in the public interest.

“Given the evidence currently before the Court, Plaintiffs are likely to succeed on the merits of their claim that the warrantless summary abatement of their medical marijuana plants is unconstitutional,” Henderson wrote.

He found unconvincing the county's argument that the warrantless searches were needed due to exigent circumstances, which provide exceptions to general warrant requirements in some cases.

The county had argued that the exigent circumstances exception should apply due to the state's ongoing water crisis and the large amount of water use attributed to marijuana grows. Henderson said the county could easily have obtained a warrant and followed Ordinance No. 2997's five-day nonsummary abatement procedure to stop the water usage.

“The Court is utterly unpersuaded by Defendants’ claim at oral argument that Lake County should not be required to get a warrant for these abatement actions because it has not fully developed the institutional process required to do so,” Henderson wrote.

“The County’s inexperience in obtaining warrants before conducting a search and seizure does not excuse the requirements of the United States Constitution,” Henderson continued. “Moreover, Defendants explained that, even with their lack of institutional capacity, it would take only about a day to obtain a warrant. Defendants give no reason for why they cannot wait one day to search the premises in these cases.”

In justifying the warrantless searches, the county also failed to convince Henderson that there existed an “immediate threat” to public health and safety in some cases and not others.

“The apparent arbitrariness of the Ordinance’s razor-thin distinction between emergency violations and permissible growth delegitimizes the Ordinance’s summary abatement and, consequently, Defendants' argument that the exigency exception applies,” he wrote.

During the Sept. 2 hearing on the temporary restraining order, the county had argued that the plaintiffs consented to the searches, with the county telling the court it would submit proof of this consent by providing declarations under penalty of perjury.

“To date, they have provided no such evidence,” Henderson said.

The county had argued that the searches could take place due to the “open fields doctrine,” which allows for warrantless search outside of a dwelling's “curtilage,” or the land immediately surrounding it.

Henderson found that in the case of the plaintiffs – each of whom had properties of one acre or smaller – the plants were within the curtilage of their homes, precluding application of the open fields doctrine.

Weighing further arguments

Henderson's decision noted that the plaintiffs failed to state a claim against the individual defendants, with the county raising legitimate concerns about the sufficiency of the factual allegations as they relate to some of the individual defendants in this case.

“Specifically, the Court is concerned that the Complaint does not allege sufficient facts regarding the individual Defendants’ specific involvement in the alleged constitutional violations,” wrote Henderson, noting that in the complaint those factual allegations “are vague and conclusory.”

As a result, absent an amended complaint, Henderson suggested that the plaintiffs' claims regarding the individual defendants are likely to be dismissed because they aren't likely to succeed.

Henderson said the plaintiffs had provided sufficient evidence to show that they are likely to suffer injury from future raids within this growing season not just from Ordinance No. 2997, but also from what appears to be “a pattern or practice on the part of the County to conduct repeat searches and seizures,” which is suggested by the testimony of a medical marijuana patient whose property was seized by the Lake County Sheriff’s Office in July 2013, as well as this past March and again in August.

Denying the preliminary injunction, Henderson said, “would leave numerous medical marijuana patients in Lake County vulnerable to future warrantless seizures of their medicine, which could lead to significant pain and suffering. While it is true that these patients could secure medical marijuana elsewhere should they need it immediately, California law explicitly allows for cultivation, so that patients are not required to do so.”

Also weighing in favor of the preliminary injunction, he said, is the protection of constitutional rights and “the immediacy if the situation,” as it's cultivation season and “allowing further warrantless seizures in the near-term would likely have lasting consequences for Plaintiffs' medical marijuana supplies.”

Henderson didn’t agree with the county's arguments that granting a preliminary injunction poses potential harm to the general public. The county's reasons included inordinate water usage, water pollution and safety hazards resulting from the conditions of cultivation used by alleged violators of the ordinance.

Absent a compelling argument, Henderson wrote, “there is little reason to believe that requiring a five-day notice period, or the time it takes to obtain a warrant, before abating noncompliant cultivation would exacerbate these harms to a level that outweighs the burden on Plaintiffs.”

He found the public interest to be “a largely neutral factor when weighed in this case.”

California residents who are authorized to use and cultivate medical marijuana under the state’s Compassionate Use Act have a strong interest in being protected from warrantless seizure of their medicine, and the state has an interest in seeing that its laws are faithfully protected against municipal intrusion or overreach, he said.

“Conversely, residents of Lake County passed Ordinance No. 2997 by 51.6%, and therefore have an interest in the protection of local laws enacted through the democratic process,” Henderson wrote.

There is a public interest in favor “of enforcing reasonable municipal nuisance ordinances” when marijuana cultivation taxes public utilities, endangers the water supply, attracts crime and causes a nuisance – whether from noise or smell – to neighbors, Henderson said.

“Ultimately, however, the protection of constitutional rights and the guarantee of access to state-recognized medicine tilts the scales in favor of Plaintiffs,” he said, noting that the plaintiffs' strong showing on the other elements required for a preliminary injunction “compensates for the close nature of this specific element.”

Henderson granted the preliminary injunction, concluding, “Plaintiffs have met their burden in showing the need for a preliminary injunction stopping the warrantless summary abatement actions against medical marijuana patients by the County of Lake, except in situations of true emergency, pending a full trial on the merits.”

Also on Tuesday, Henderson stayed the county's pending motions to dismiss the case until the plaintiffs' filing – expected on Oct. 20 – of a motion for leave to amend their complaint.

An initial case management conference regarding the steps ahead has been scheduled for Dec. 4 in San Francisco.

Email Elizabeth Larson at . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

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Comments (2)Add Comment
task force dose not care
written by Fishn, October 16, 2014
Even with warrants the task force dose not care about measure N.
heck yeah!
written by clanciano, October 16, 2014
book mark that greg

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