MEDICAL POT POSING DILEMMA FOR OFFICERS

It would have been an easy decision many years ago.

Last July, Modesto police reported the discovery of about 150 marijuana
plants growing in a man's garage and back yard. They arrested him and sent
the case to the Stanislaus County district attorney's office.

The district attorney's office rejected it a few weeks later. Now it is
being re-examined at the request of Modesto police, but prosecutors still
have made no decision.

Why? The main reason is Proposition 215, the 1996 statute that legalized
medical marijuana. Since then, it has become increasingly difficult for
prosecutors to convince juries to convict medical marijuana cases.

"We look at each case individually," Assistant District Attorney Carol

Shipley said. "But if we're convinced a jury wouldn't convict, we may
decide not to prosecute. What they have to have is a legitimate purpose for
the use of the marijuana that is recognized under the law."

One case that particularly frustrated local prosecutors began in July 2000.
Police arrested Barbara Varley of Modesto on charges of marijuana
cultivation after police found her growing 300 marijuana plants, Shipley
said. Varley used a medical marijuana defense.

A Superior Court judge eventually declared a mistrial when a jury could not
return with a verdict, Shipley said. Seven of the 12 jurors favored a
conviction.

That is how most every medical marijuana case in Stanislaus County has
ended during the past five years. The exception came Dec. 7 when a jury
convicted Kip Charles Dali of Modesto on charges of possessing marijuana
for sale.

Last March, police found Dali sitting in his car with about 1 pound of
marijuana in two small plastic bags, Shipley said. He also had scales used
to weigh the drug as well as a membership card to an Oakland cannabis club.

Dali was sentenced to 120 days in jail -- county prosecutors' first win
against a medical marijuana defense to date, Shipley said.

"There are citizens in Stanislaus County who would find it difficult to
vote guilty in marijuana cases," she said. "That's one of the obstacles
we're trying to overcome."

The problem facing law enforcement and prosecutors is that the medical
marijuana law's wording is extremely vague.

It calls for a note from a physician who has recommended the drug to treat
cancer, chronic pain, spasticity, arthritis or other illness for which
marijuana provides relief. Since those other illnesses are not defined,
theoretically any ailment could qualify.

Also, the law allows possession and cultivation of plants for medical use.
But it does not specify how many plants or how much marijuana is allowable.

Gray Area For Authorities

"This is definitely murky water," said Sgt. Dave Van Diemen, a supervisor
with the Stanislaus Drug Enforcement Agency. "It's confusing for the cop on
the street, the dope cop, it's confusing for everybody, really. It varies
from county to county. We haven't even gotten a definitive answer from the
attorney general's office."

The problem has drug units everywhere sticking more to the pursuit of drugs
like methamphetamine, crack cocaine and heroin -- cases that rarely find
sympathetic juries.

"We don't look at marijuana the way we used to," said officer Craig
Gundlach of the Modesto Narcotic Enforcement Team. "When I used to come
across a cultivation, I'd look at it as a good case. Now there's just so
much gray area involved. Everybody's got a (doctor's) note."

The case involving Kenneth Beams, 43, of Modesto is a good example. He was
the man arrested last July on charges of growing about 150 marijuana plants
at his home. The collection included 44 plants from 4 to 6 feet tall and
approximately 100 inch-high seedlings. It was the second time that Beams
had been arrested for growing marijuana.

Beams, who said he suffers from a multitude of ailments including chronic
knee and neck problems, said he had so many plants because he did not know
how to properly grow them and that many of them died regularly. Sgt. Tim
David, supervisor of the Modesto Narcotic Enforcement Team, agreed that the
plants were in very poor condition.

Beams, who had a marijuana recommendation note from a Modesto doctor,
claimed that he smoked 2 ounces a week, or about 6 pounds a year. David
estimated that Beams' mature plants could produce about 25 pounds a year.

"This all falls back on the fact that he had 150 plants," David said.
"There's no need to be growing all these plants. That's way more than
personal use."

Shipley said the district attorney's office expects to make a decision on
the case in the coming weeks.

Stanislaus County Not Alone

Stanislaus is hardly the only county wrestling with the medical marijuana
issue.

Mendocino County District Attorney Norm Vroman has said medical marijuana
users are allowed to grow 25 marijuana plants, flowering or immature, and
still be within the legal limit. Mendocino and other counties have set
varying limits.

Last April, a Sonoma County jury found two men innocent of cultivation and
possession charges after police arrested them for growing 899 marijuana
plants. The men claimed that they were growing the plants for a San
Francisco medical marijuana club.

In August, a San Joaquin County judge ordered the Manteca Police Department
to return property that included 174 marijuana plants and five pounds of
the drug to David Willson, who said he used marijuana to treat severe
headaches and anxiety.

Modesto Police Chief Roy Wasden said his officers are in limbo regarding
marijuana cases. He has asked the district attorney's office to set
guidelines regarding how many plants and how much of the drug can qualify
as medical marijuana.

"It puts us in a very difficult position," Wasden said. "On the front end,
officers don't know what amount can legally be possessed for medical purposes.

"On the back end, if it's found to be medical marijuana, what is the
expectation of the Police Department? You could easily have a situation
where a state court tells us to return the marijuana, yet federal law tells
us it is illegal to distribute the drug."