JUDGE REFUSES TO TOSS OUT WARRANT IN KUBBY TRIAL

It's taken more than a year, but opening statements will finally be heard
next week in the marijuana trial facing Steven and Michele Kubby.

Both sides wrapped up pretrial motions Thursday afternoon with Placer
County Superior Court Judge John L. Cosgrove denying two defense motions to
dismiss a search warrant that led to a Jan. 19, 1999 raid on the Kubbys'
Olympic Valley home.

Steven Kubby was the Libertarian candidate for governor in 1998 and a key
proponent of the successful 1996 Compassionate Use Act, or Proposition 215.

Cosgrove ruled the Kubbys did not prove they had a reasonable expectation
to privacy when investigators observed them at night through windows and
searched their garbage can.

A search warrant affidavit completed by Placer County narcotics officers
stated they observed alleged criminal activities by the Kubbys through a
back window of their Olympic Village home in January 1999. According to
Deputy Michael Lyke of the multi-agency North Lake Tahoe Drug Task Force,
he believed he was on U.S. Forest Service property while watching Steven
Kubby and another man trim a marijuana plant. Lyke said he acquired his
information about ownership of the neighboring property from the Squaw
Valley Fire Department.

But records and maps at the Placer County Assessor's Office proved the
hillside, which begins 30 feet to 40 feet behind the Kubbys' rental home at
1102 Sandy Way, was part of the Poulsen Foundation, the Kubbys' attorneys
asserted. The foundation is a nonprofit entity dedicated to the protection
and preservation of roughly 50,000 acres for public enjoyment.

According to Placer County Assessor Bruce Dear, the trust has been exempted
from certain state taxes since 1994 because it meets the criteria for a
welfare exemption. One of the tests in determining exemption status is
public access to land, which Dear testified must be open and reasonable.

But one of the documents produced during Dear's testimony stated the trust
was established "exclusively for religious, charitable, scientific and
educational purposes." Defense attorney J. David Nick, who represents
Michele Kubby, argued access to foundation land would not include police
sneaking around at night and peeking in windows.

Nick argued earlier in the week that Lyke demonstrated a reckless disregard
for the truth by not fully researching to whom the land belonged and
instead, went along with an explanation that was convenient for his
investigation.

"There's a reasonable expectation of privacy that you're not going to have
somebody tracking down that hillside in the middle of the night and looking
in the window," Nick said.

Furthermore, Nick stated he bumped into Sandra Poulsen Wednesday night in
Squaw Valley and was told the land was not dedicated for the public to have
access. Cosgrove, however, would not grant a continuance so the defense
could bring Poulsen in to testify.

But Deputy District Attorney Christopher Cattran argued the police have a
right to make observations from land on which they have a legal right to be.

"It's a well established law," he stated.

In denying the motion to suppress the search warrant, Cosgrove said any
mistake made by Lyke in determining if he stood on private or public land
was not intentional or reckless. Moreover, since the Kubbys apparently
placed notes alerting investigators to their status as medical marijuana
users in the garbage cans, they expected those fliers to be found, which
does not constitute an expectation of privacy, Cosgrove said.

Cosgrove also stated the seizure of the Kubbys' computer and financial
documents was warranted in terms of showing past, present and potential
cultivation of marijuana.

The Kubbys face 19 criminal counts of cultivation and possession of
marijuana for sale and possession of other illicit drugs, including
psychedelic mushrooms and mescaline. Placer County investigators initially
estimated the street value of the marijuana seized at their home - a total
of 265 plants - at $420,000.

The Kubbys maintain they fall under the guidelines of the Compassionate Use
Act of 1996, which allows them to grow and possess marijuana for medicinal
purposes. Earlier this week, Cosgrove placed the burden on the defense to
prove the Kubbys have medical reasons to use marijuana.

The jury has been ordered to return at 10 a.m. Wednesday for opening
statements. Defense attorney J. Tony Serra, who has been ordered to explain
why he has not appeared in Auburn to date, will reserve opening comments
concerning Steven Kubby, who suffers from a rare form of adrenal cancer,
until October.