WHY WORRY?

Sheriff Hedges Obtained the Confidential Records of Medical Marijuana
Users. Could That Be a Problem?

Elaine McKellips vomits three to four times every day. When she sits,
her legs knock together uncontrollably at the knees, a condition she
apologizes for offhandedly. McKellips suffers from several chronic,
debilitating maladies ranging from gastroparesis, which severely
impedes digestion of even the most benign liquids, to restless leg
syndrome. Nausea keeps her at home most of the time and when she does
move it's in labored, deliberate steps with the aid of a cane. She
employs a caretaker. Despite it all, she said life is better than
before she started smoking prescription marijuana.

"I was throwing up between 12 and 15 times a day," McKellips said. "I
could wake up from a nap and it would just hit me, throwing up bile.
Nothing has to be in my stomach. And so I was confined to my bed, and
I had a bucket near my bed, and what kind of a life is that? So my
caregiver read in the paper about the dispensary opening, and about
medical marijuana, and said maybe I should try it. It worked immediately."

Her frame may be petite and frail but McKellips is capable, and
matter-of-fact about her circumstances. She is sick and, in
accordance with California law, wants her medicine. She also wants
her medical records returned with an apology from Sheriff Patrick
Hedges, who solicited federal Drug Enforcement Administration agents
to raid the home of Charles Lynch and his Morro Bay business Central
Coast Compassionate Caregivers, in March last year.

To lawmakers who backed Proposition 215, and Assembly Bill 420--the
so-called medical marijuana laws--McKellips is a model candidate for
"alternative" pain relief; she can't digest the pill Marinol, a
synthesized version of tetrahydrocannabinol (THC), the active
compound in marijuana.

To federal prosecutors trying to convict Charles Lynch on five
charges of distributing, cultivating, and trafficking in marijuana
from the Morro Bay dispensary, McKellips is a liability.

Prosecutors actually made a formal motion to keep "sick looking"
people off the stand. It didn't work. McKellips will likely testify
in Lynch's defense, but she has her own legal battle to wage. On June
20, she filed a lawsuit against the County of San Luis Obispo, the
San Luis Obispo Sheriff's Department, and Sheriff Hedges himself,
seeking unlimited damages for his role in busting the dispensary.

The Origins of Safe Access

"I filed the lawsuit to ensure that other patients in San Luis Obispo
County have the same rights as patients in other counties," McKellips said.

Although it was a federal agency, the DEA, that raided the
dispensary, she can't seek redress in federal courts. She claims she
was denied medicine; but what California recognizes as legitimate
medicine, the federal government considers nothing more than a fix of
a dangerous, illegal controlled substance. So McKellips's suit is
with the state courts against a local agency over an allegedly
illegal search and seizure of medical records that was never
warranted by the state.

She claims invasion of privacy and HIPAA (Health Insurance
Portability and Accountability Act) violations. HIPAA is a federal
patient privacy law. She also alleges violations of due process and
alleges the raids violated equal protection statutes, arguing that
the sheriff selectively enforced the law by choosing to ignore
Proposition 215. McKellips is seeking compensation for the alleged
privacy violations, as well as the time she spent without medical
marijuana. She is also calling on the county to investigate whether
the sheriff improperly used public funds for the investigation or the raid.

Since Proposition 215 was passed in 1996, (followed by Assembly Bill
420, which was designed to fill in legal gaps left by 215) 11 states
have legalized the use of marijuana for certain medical relief. But
federally, marijuana remains a prohibited Schedule 1 drug. That
classification doesn't recognize any medical benefits of the plant,
and puts it in the same category as cocaine.

Between 2005 and 2007, there were about 60 DEA raids in California
and about as many convictions in federal courts. Although most
prosecuted dispensary owners forgo jury trials and take pleas, the
raids, the investigations, and the court time cost tax payers dearly.
Americans for Safe Access, a medical marijuana advocacy group,
estimates that between 2005 and 2007 the DEA spent more than $10
million on dispensary raids in California alone. That doesn't take
into account the cost of investigations leading up to the busts.

Prosecuting these cases federally is like shooting fish in a bucket.
There are receipts, client lists, and tax documents that show how
much marijuana was sold, and to whom. And unlike most drug busts, the
contraband is clearly labeled, packaged, and conveniently stored in
one not-so-secret location. In federal court, Lynch's status as a
provider of medicine can not be considered. His patient lists and
transaction receipts will be viewed as a roster of illicit drug users
and records of deals.

It's a states' rights issue that has taken center stage with several
bills in Congress aimed at clearly defining the jurisdictions of
state and federal law enforcement. They would bar the DEA from
raiding state-sanctioned dispensaries, or prevent local agencies from
participating in such DEA raids. So far Congress has passed none, but
San Francisco and other cities have resolved that cops must adhere to
state law. However, DEA raids on legalized medical marijuana
dispensaries are increasing.

On April 29, Chairman of the House Judiciary Committee John Conyers
sent a public letter to acting DEA Administrator Michele Leonhart
criticizing a perceived increase in the agency's "paramilitary-style
enforcement raids." Conyers openly questioned the DEA's use of
resources for raids on people and their caregivers who are conducting
themselves legally under California law.

With the lawsuit, McKellips claims that Hedges, as a locally elected
law-enforcement agent, should never have been involved in enforcing
the federal law in contradiction of state law. Furthermore, because
he never secured a state warrant, he should never have been given
access to evidence, which includes patients' names, addresses, and
phone numbers, and perhaps other personal medical information.

In short, Hedges had access to a Rolodex of marijuana users in the
county, and that prospect has many patients worried that he won't
respect their rights under Proposition 215. Earlier this year, Hedges
refused to return a patient's illegally confiscated marijuana until
faced with a court order. That patient was Craig Steffens, a retired
aircraft mechanic and veteran, who is known locally for his advocacy
of medical marijuana and hemp. Sheriff's spokesman Rob Bryn said
Hedges previously was concerned that releasing the marijuana could
violate federal law and had been waiting to see if the California
Supreme Court would take up an appeal of a related case. It didn't.

McKellips is angry that her privacy has already been violated, but
worries more that it will continue to be violated.

"I'm asking for punitive damages," McKellips said, "because I feel
like they have those records, and they're just investigating
everybody, when they don't really have a right to. They raided
Charles Lynch, not me. Why are my records in the hands of the sheriff?"

McKellips is not the only one who's worried. Steffens, who was a
member and grower for Compassionate Caregivers, said it's not a
question of if or when Hedges will use personal information to go
after patients. Steffens believes he already has.

"He already used his power to investigate the dispensary without any
probable cause," Steffens said. "He started investigating as soon as
they opened in Atascadero. I believe he has an agenda, he is doing
everything he can to go after patients, and people who provide care
for patients."

Steffens expects to join McKellips's lawsuit.

The Year of the Stakeout

For local enforcement agencies to be involved in a raid or an
investigation is not unheard of, according to Americans for Safe
Access spokesman Kris Hermes. But several factors make the raid of
Compassionate Caregivers egregious, in his eyes.

For example, Hermes said, federal law enforcement agencies have been
called to participate in raids when local officials have not
sanctioned dispensaries. That was the case in Kern County, where
several dispensaries were investigated and raided with the help of
local officials. Compassionate Caregivers, however, was welcomed to
Morro Bay. Mayor Janice Peters was at the ribbon-cutting ceremony,
and Lynch was a member of the Morro Bay Chamber of Commerce. Besides,
Morro Bay has a police department, and they were strictly instructed
to enforce state law, Peters said in an interview.

Hedges also conducted a yearlong investigation before the feds were
ever called. During that time he spent thousands of dollars on
marijuana and prescriptions alone and, according to the investigation
report that the DEA compiled to obtain a warrant, officers from the
sheriff's department went to Los Angeles County twice, running
surveillance while their informants got prescriptions from a
seemingly questionable source. This "doctor," who is also being
charged with Lynch, allegedly smoked pot with informants at these appointments.

During the year Compassionate Caregivers was open, there was never a
time when McKellips visited that she didn't see a surveillance truck,
but she never felt threatened, because she believed she was operating
within the law.

"It was so obvious," McKellips said, "the undercover police that were
surveying it. I knew what car they had. I knew where they parked. I
saw them watch me, I saw them making notes, so the minute I went in,
the first time I went, I knew I was being watched, but that's
different than them having my medical records."

The investigation report indicates that they were present almost
daily, taking down license plate numbers, and taking note of what
went in and what came out. The cost of the year-long investigation is
unknown, but Hedges was apparently unable to produce probable cause
to justify a state search warrant and therefore turned to the DEA. To
date, one Compassionate Caregivers' employee, Abram Baxter, was
arrested on suspicion of selling marijuana to undercover officers
outside the dispensary. Even that case was unusual. Baxter plead
guilty and was ready to move on with his life, only to find that his
file was confused with that of another man, whose last name was also
Baxter. Abram is still waiting to be retried and sentenced all over again.

To date, there have been no charges whatsoever at the local level
against either Lynch or the dispensary.

Had neighbors complained, Hermes said, that could have led to an
investigation by a local agency, but they would probably call the
Morro Bay police, not the sheriff. Mayor Peters said that she
personally met with every business owner in the immediate vicinity of
the dispensary and gave them her card, with an invitation to call her
if they had any problems. No one called, she said.

March 29, 2007: The Raid

On March 29, 2007 Sheriffs' officials, with the DEA, raided Central
Coat Compassionate Caregivers at 780 Monterey St. in Morro Bay. TV
news crews milled around outside the building for hours, with the
dense Morro Bay fog surrounding them, just waiting to get a shot of
the confiscated goods. Then-spokesman Brian Hascall, of the Sheriff's
Department, gingerly flittered between news crews, defending the
sheriff's role within the Morro Bay city limits by noting that,
before the dispensary began business bayside, it operated briefly in
Atascadero. That city was less than hospitable and Lynch moved the
business after about a month, but the sheriff had already started an
investigation. Hascall explained at that time that the relocation
made Compassionate Caregivers a county issue.

Hours after the news crews arrived, the spoils of the raid were
finally hauled out in shopping bags and plastic boxes, labeled with
marijuana names such as "Diesel" and stacked on the sidewalk for a
photo-op. The raiders also loaded seized computers, credit card
processing machines, telephones, answering machines, prescriptions,
and stacks of paper. Local deputies, many of them members of the
county's elite Narcotics Task Force, were present in numbers equal to
or greater than those of federal agents. Baxter was arrested that
day, and though Hascall would not then release any details of the
investigation, citing the sealed federal warrant, everything would
become crystal clear, he said, when the indictments were announced.

During the discovery phase of Lynch's case, the details of the
investigation did indeed come to light.

For example, when Lynch's home was raided the same day, Lynch was
naked and held at gunpoint while the DEA searched the home for
weapons. According to the affidavit--a sworn statement that leads to
a warrant--federal agents take into account certain behaviors of
dispensary owners, such as a tendency to keep cash on hand and
whether they have armed guards at the dispensary (Lynch did not keep
an armed guard). About $30,000 was found at Lynch's home, which was
seized with the rest of his assets. Otherwise, the affidavit cites
information that is more appropriate for the fall of a major drug
cartel: "Drug dealers commonly have in their possession ... firearms,
including handguns, pistols, revolvers, rifles, shotguns ..." Lynch
had none. He had several guitars, and a piano, on which "Chopsticks"
was played by one of the agents, according to Lynch's sworn statement.

McKellips's case is based on details from the discovery phase of
Lynch's case. Until discovery, the extent of Hedges' investigation
was unknown. And, according to McKellips's suit, Hedges not only went
over the heads of the Morro Bay Police Department, but circumvented
the district attorney and all other county officials in seeking help
from the DEA. The result, according to the suit, was a quid pro quo
arrangement in which Hedges received access to seized information in
exchange for inviting the feds.

According to court documents, Hedges took possession of evidence,
including medical records, in early April, less than two weeks after
it was seized. It's unknown how long the sheriff actually had
possession of sensitive documents.

Bryn said that he could not speak to any case details, because he and
several other deputies from the Sheriff's Department have been
subpoenaed to testify in Lynch's case. But he said, wherever the
records were being stored previously doesn't matter, because they're
all in Los Angeles now, ready as evidence for the trial.

After the Raid

It was unclear immediately after the raid weather the dispensary
would re-open. May patients held their breath, some sought marijuana
from less wholesome sources. McKellips waited, and her nausea
returned with punishing ferocity. She said she was bedridden,
throwing up 12 or more times a day, but she was afraid of buying
marijuana illegally. McKellips gets her medicine from the Santa
Barbara dispensary now, which is more than an hour away and more
expensive than was Compassionate Caregivers, she noted.

Before the raid, McKellips said that she knew Lynch on a purely
professional level, and she never imagined the acquaintance would
become any more than that. Lynch is facing prison time. He's confined
to his home; his assets, including money, cars, and his house, have
been all been seized. And McKellips worries about him: "After the
raid I got to know him a little bit personally, enough to talk on the
phone; right now I try to call him at least once a week to make sure
that he's hanging in there."

Addendum

Two of the federal charges Lynch is facing are related to selling
marijuana to minors younger than 21 years old. One such minor was a
17-year-old amputee with bone cancer, whose parents were buying the
prescription for him.

Regarding patients' fears of prosecution that may stem from seized
confidential records, the American College of Physicians (ACP) is
unequivocal, "ACP strongly urges protection from criminal or civil
penalties for patients who use medical marijuana as permitted under
state laws." The ACP is composed of 126,000 members, including
internists, medical students, residents, and fellows.