EVIDENCE LEGAL IN CANNABIS CENTER CASE

SAN JOSE -- In a crucial ruling for prosecutors in the criminal case against
medicinal marijuana activist Peter Baez, a Santa Clara Superior Court judge
Friday refused to throw out key evidence seized during a March 23 raid of
his now-defunct San Jose-based marijuana dispensary.(P) Attorneys for Baez,
the 35-year-old former director of the Santa Clara County Medical Cannabis
Center, had argued the evidence should be tossed out because police
improperly searched the center, going beyond the scope of their warrant.

But Judge Diane Northway found that police had probable cause to believe a
felony had been committed and had lawfully seized and scrutinized patient
files and financial records. Baez, who has AIDS and suffers from colon
cancer, is charged with five counts of illegally selling and furnishing
marijuana. He is also charged with grand theft and running a drug house.

In making her decision, Northway relied on a 1997 ruling by the San
Francisco-based 1st District Court of Appeal that found Proposition 215 did
not permit commercial operations to sell marijuana.

Attorney Gerald Uelmen, who represented Baez in the latest legal motion,
said afterward that the judge's ruling sent a clear message.

The message is that anyone who operates a medical marijuana dispensary in
Santa Clara County has to have rocks in their head," said Uelmen. He
had argued that the center operated with the open approval of police, city
and the district attorney who then later turned on Baez and labeled him a
drug dealer.

"If you open a medical marijuana dispensary in San Jose and rely on the
assurances of police that you'll be allowed to operate, that assurance is
worthless,"; Uelmen added.

But during the hearing, Northway suggested that the defense wanted it both
ways. "You want the benefits of the ordinance but not the burdens?" she
asked.

Deputy District Attorney Rob Baker had argued that Baez's cannabis center
was not a legitimate business and was not protected by Prop. 215 because he
had not complied with the ordinance. Among other things, Baker said, Baez
did not have a permit and was accepting patients without recommendations or
approval.

"They used the ordinance to justify opening up the center and then decided
to make up their own rules, so they put themselves in jeopardy," Baker said
later, calling the ruling a vindication for the police officers who
conducted the search.

Northway's ruling came after four days of hearings over two months that
included testimony from police officers about regulations for medicinal
marijuana in the wake of Prop. 215, the 1996 voted-approved initiative
allowing the creation of such institutions to distribute marijuana to
seriously ill patients with a doctor's recommendation.

Uelmen argued the March 23 search was a violation of the Fourth Amendment,
which protects against unreasonable searches and seizures, and that
authorities had no right to seize all 265 patient files since they suspected
one patient file -- belonging to a San Jose man named Enrique Robles -- did
not contain a physician's recommendation. But Baker argued one illegal sale
of pot was sufficient to trigger the search of the center.

Police contend sales to five members of the center were illegal because none
had obtained a doctor's recommendation. They also allege that Baez was using
center money to pay for such personal expenses as his home satellite
television bill. He was also charged with grand theft because, prosecutors
say, he received a $14,000 federal housing subsidy that stipulates he have
no other income.