LAYTONVILLE MAN DEMANDING CONFISCATED POT BACK

County Facing Two Cases Where Medical Marijuana Taken But Patients' Status
Upheld

A north county AIDS patient will ask a county court Thursday to order the
return of marijuana seized during an October raid on his Laytonville-area
home.

Even as attorneys prepare to argue that case, a challenge to a judge's
order that police return medical marijuana seized from a Willits couple has
been filed with the state's highest court.

That appeal was filed with the California Supreme Court on August 31 by the
state Attorney General's Office. The seven-justice court has until October
30 to decide whether it will review the case or not.

Returning the marijuana to the couple would violate state and federal drug
laws, Deputy Attorney General Michael O'Reilly claims.

If the high court upholds Judge Joseph Orr's December 1997 ruling in the
Willits case, or decides not to hear the case, the marijuana would have to
be returned to its owners or the case appealed to the United States Supreme
Court.

If the court does decide to hear the case, it will mark the first time
justices have waded into the medical marijuana controversy.

Charges Dropped in Willits Case

The Chain of events leading to the Supreme Court challenge began when
Mendocino County sheriff's deputies responded to a domestic dispute call at
the Brooktrails home of Christopher Brown and Dorris Perrine in February 1997.

Entering the house, they discovered about 45 marijuana seedlings growing in
a living room corner.

Obtaining a search warrant, deputies seized the plants as evidence, found
another one-half pound of processed marijuana in a closet, and arrested
Brown and Perrine for cultivation of marijuana and possession for sale.

Five months later, however, the Mendocino County District Attorney's Office
dismissed the charges. Both Brown and Perrine argued doctors had
prescribed the marijuana for medical conditions. Brown suffered "chronic
low-back pain" while Perrine's doctor said the marijuana would help with
her fibromyalgia (a condition akin to chronic fatigue syndrome and
arthritis) and mood and appetite problems.

Judge Orders Pot Returned

In December 1997, the two went to court to ask for their pot back. They
emerged with an order from Judge Orr that "all indicia, personal property
and medical marijuana, including dried marijuana, marijuana seeds, and
formerly growing marijuana plants shall be returned."

At that point, the California Attorney General's Office stepped in, asking
Judge Henry Nelson to overrule Orr's order. Instead, Nelson upheld the
ruling. The First District Court of Appeal also refused to overturn the
ruling.

"The magistrate in this case issued an order directing persons who were not
caregivers"--sheriff's deputies--"to provide one-half pound of a Schedule I
controlled substance to an individual," O'Reilly argues in his petition for
review to the Supreme Court.

"The magistrate's order," he said "commands law enforcement to commit a
federal crime."

Second Case Involved AIDS Patient

While justices ponder whether or not to tackle the medical marijuana
controversy, AIDS patient Richard Mark Walker of Laytonville will go to
court this week to try to get his medical marijuana back, too.

The pot was seized during an October 1997 raid on Walker's Woodman Peak
Road home West of Laytonville.

Six officers -- including three agents form the Mendocino Major Crimes Task
Force, the Mendocino County Sheriff's Office, the California Highway Patrol
and the Mendocino County District Attorney's Office -- were en route to a
probation search when Special Agent Matthew Kendall smelled "the strong
odor of fresh marijuana" in the air as they passed Walker's home.

The officers stopped, and CHP Officer Glenn Revheim, who had his canine
partner Keanu with him, said he would walk the dog, the report states. "I
could smell the strong odor of marijuana around the residence and I could
see several marijuana plants growing on a small deck on the second story of
the residence."

Walker, 48, a registered nurse on disability after contracting AIDS, told
the Daily Journal he had called District Attorney Susan Massini's office to
seek information concerning medical marijuana guidelines after Proposition
215 passed.

Massini, Walker claims, never returned his calls. But her office did tell
Walker Massini could not provide "free" legal advice concerning the new
law. Sheriff Jim Tuso also failed to respond when Walker sought information
from the Sheriff's Office.

A year later, Walker said, the six men arrived, "rude, homophobic and
AIDS-phobic."

"They didn't even knock," he said. "They just walked in; my door was open."

He calls the alleged probation search, to which the officers were heading,
"an entirely fabricated pretense," and claims police were tipped off to his
marijuana plants by "a speed dealer living in the area who was working off
a beef with the cops." Before the officers appeared, he said, an aircraft
had been circling the area over his home for about five hours.

Walker said his home is located some five miles from Highway 101 beyond a
locked gate. "You don't make it there unless you intend to."

The man who was the subject of the probation search arrived with police,
Walker claims, "and pointed out where my plants were." Walker says he
believes police brought the man with them in order to claim probable cause
to search his property.

According to Kendall's report, Walker "pointed to a note from the Long
Valley Health Center signed by Dr. Clint Thompson, M.D. The note advised of
medical problems stemming from HIV infection; further the note advised Dr.
Thompson's belief that the use of marijuana should be allowed in its
medicinal fashion."

Kendall said he counted 21 plants growing inside Walker's house, ranging in
size from 10 to 18 inches. "There was marijuana hanging in the residence,
which Walker stated he had grown and was currently drying," the report stated.

"I estimated the total usable marijuana to be approximately two to three
pounds," Kendall said. "Walker stated what he had in the residence would be
enough to get him through the year."

When officers left the house, Kendall said he spoke with Walker's neighbor,
Iona Westwood. Westwood, Kendall said, told him "she had some marijuana
growing across the road on her property." She also told him she was growing
the pot for Walker's use.

Neighbor's Pot Taken, Too

Westwood informed Kendall she was Walker's in-home health care provider and
showed him a time sheet. Westwood also agreed to show him the plants she
was growing.

On a small hill some 30 yards behind Westwood's home, Kendall discovered 16
marijuana plants ranging in size from four to six feet. "Some of the plants
had branches cut from them," Kendall noted in his report, "and there were
13 coat hangers hanging from a small tree (that) contained several
marijuana branches with buds on them."

The plants had all been planted under manzanita brush, Kendall observed,
and there were water jugs painted in camouflage colors near the bases of
several plants. "It appeared from all indicators that the grow had been
hidden."

Westwood allegedly told the officers she was in the process of harvesting
the plants when they arrived at Walker's house. She "seemed upset over
losing the plants and stated several times these were the best she had
grown," Kendall noted in his report.

She also said her husband, Kent Westwood, apparently did not know she was
growing marijuana.

Westwood and police walked back to her house, where officers "received
consent to search," Kendall said. Under the house, in a large, brown
plastic barrel, police found two plastic bags containing about 120 grams of
marijuana. Kendall said Westwood told him "the marijuana was from last
year. I seized it as evidence."

Also taken in evidence were 16 four to six-foot high marijuana plants. Not
only was the marijuana seized, Walker said officers also confiscated all
his prescription medications, including medicines to prevent grand mal
epileptic seizures. He was forced to travel from Laytonville to Ukiah that
evening to obtain new medications.

Kendall added he "advised Westwood and Walker I would seek a complaint
through the District Attorney's Office for the violation."

Walker Never Charged

Walker, in fact, was never charged. But about eight months after the
October 21, 1997, incident -- on June 5 of this year (1998) -- a complaint
was filed against Westwood for felony cultivation of marijuana and
possession for sale.

In the meantime, Westwood had retained the services of Bay Area defense
attorney William Welch.

"Mark (Walker) and Iona (Westwood) had come to me at the beginning of April
to get some sort of resolution" to the problem, Welch said.

Westwood rejected an offer from the DA's office to plead guilty to a
misdemeanor possession charge. Instead Westwood, Walker and their
supporters held a rally on the courthouse steps "in an attempt to raise
"awareness" concerning the medial marijuana dilemma, Welch said. "Within
days, a complaint was filed."

Deputy DA Signature Forged

But the case never came to trial. Earlier this month, the DA's office
dismissed the charges on the grounds there was "insufficient evidence to
prosecute" Westwood.

Westwood denies she was growing marijuana commercially. The plants she was
tending, both she and Walker maintain, were for medical his medical use alone.

Welch charges the sheriff's and DA's offices "made up the case (against
Westwood) from the beginning."

He also said Kendall's investigation report "as written was not the same
report I was originally furnished." The final report, Welch charges,
contains inconsistencies and had been backdated.

Welch also claims that while the complaint against Westwood bears the name
of then-Deputy District Attorney Myron Sawicki, the signature is not his.

Sawicki also denies signing the complaint.

All complaints filed by the DA's office must be signed by an attorney,
Sawicki explained. Were another attorney to sign a complaint for him, they
would be required to sign their name and then add "for Myron Sawicki."
Anyone simply signing Sawicki's name to a complaint would be breaking the
law, he said. Such an action would also render the complaint invalid.

Sawicki said he did not know who in the DA's office signed the complaint
against Westwood, "but it wasn't me."

For Welch, "the most disappointing part of the case is that Iona and Mark
never had an opportunity to confront their accusers or have an impartial
judge hear the case."

At the moment, he added, Walker and Westwood "are in no better position
than they were in last year. There's still no legal parameters or
requirements set for medical marijuana in Mendocino County."

Welch said he has filed a court motion to have Walker's medical marijuana
returned to him. That motion will be held Thursday.

He added he is "also interested in pursuing a grand jury inquiry in the case."

If nothing else," Westwood said, "I hope this motivates the county to
establish a policy regarding medical marijuana right now; our pleas are
being heard by deaf ears."

Checked-by: Richard Lake