POT-RETURN ORDER ANGERS SHERIFF

JP Told Cochise Cops To Give Back Drug To Oregonian In Medical Program

Cochise County lowercourt judges have been instructed that they cannot
order law enforcement authorities to return seized illegal drugs or other
contraband to the people caught with such items.

The instructions from Cochise's presiding judge followed a March 20 order
issued by Douglas Justice of the Peace Michael Herbolich that required
deputies to return 1.5 ounces of marijuana to a man, based on his
possession of a medical marijuana program card issued by the state of Oregon.

The order angered Cochise County Sheriff Larry Dever. Sheriff's dep-uties
have since been instructed not to follow any future court orders to return
seized drugs.

Possession of that amount of marijuana is illegal even under the provisions
of Oregon's Medical Marijuana Act, which allows registered users to possess
up to an ounce of marijuana when traveling within the state.

The state's Internet site also includes a notice that the medical marijuana
program card is not valid outside Oregon.

The order involved Frederic H. Starkweather, 56, of Gold Beach, Ore., who
was detained by U.S. Customs inspectors at the Douglas Port of Entry March
19 as he walked back from Mexico.

Federal authorities refused to prosecute the case, so the Sheriff's
Department was called, and deputies took custody of Starkweather.

Starkweather reportedly is still traveling in Arizona and could not be
reached for comment.

When contacted yesterday, Herbolich seem surprised by the reaction to his
decision, but he expressed no regrets.

"They pay me to make decisions, and I made a decision," he said. "I wasn't
releasing a load to a mule," the judge said, referring to the term used for
a person who smuggles drugs by carrying them in a backpack.

"I was releasing medication to a sick man."

He said he was not aware that the 41 grams of marijuana Starkweather had
violated Oregon's medical marijuana law.

In an April 6 letter to Superior Court Judge Stephen Desens, Dever wrote
that he considered Herbolich's order an order to violate the law, and had
he known of the situation at the time, "The marijuana would not have been
released."

Desens is the presiding judge over Cochise County's courts.

Dever said yesterday that he has since spoken with Desens about the case.
He said the judge assured him that this first-of-it's-kind court order in
Cochise County would likely be the last unless Arizona law changes in
regard to the medical use of marijuana.

"We're just not going to give contraband to people, that's the bottom
line," Dever said. "The last time I checked, in the state of Arizona it is
still unlawful to possess marijuana, and it is also unlawful to transfer
contraband. We're just not going to break the law."

Desens said yesterday he agrees with Dever's position and he conveyed that
opinion to the county's lower court judges on Friday.

He said lack of clarity over Arizona's own situation regarding the use of
marijuana for medical purposes may have contributed to the confusion in the
case.

At the time of his arrest, Starkweather declared other merchandise in his
possession, including prescription medications, but he made no mention of
the marijuana until the customs inspector asked him about what he was
carrying in his right shirt pocket, which turned out to be the marijuana.

He produced the program card and told inspectors he did not buy the drugs
in Mexico.

The following day, Herbolich found Starkweather not guilty of the charges
and told him he could pick up his marijuana from the Sheriff's Department.

But when Starkweather showed up at the sheriff's substation, a deputy
balked and went to Herbolich to verify Starkweather's claim.

When Herbolich confirmed that the marijuana was to be returned, the deputy
insisted that the judge issue a court order.

Even then, the deputy contacted his supervisors and the county attorney's
office for instructions. He was advised to obey the court order.

County Attorney Chris Roll said the deputy county attorney contacted that
day gave the deputy the correct advice when he told him to obey the court
order.

He said the Legislature eventually will have to address the status of
medical use of marijuana in Arizona. Voters in Arizona approved a medical
marijuana law in 1996 that allows doctors to prescribe marijuana under
certain conditions. So far, however, there has been no enabling legislation
to put the law into effect.