COUNTY BALKS AT RETURNING MARIJUANA SEIZED IN RAID

Employee of Guerneville pot club never charged with crime

The scent of burning marijuana is uncommon around the Sonoma County
courthouse, but it was unmistakable as a group from the west county
awaited the next battle in the medical-marijuana wars.

At issue is marijuana seized from a man who said the pot was for
Marvin's Garden, a dispensary in Guerneville that claims 1,100 members.

Ken Wilson, an employee of the club, wasn't charged with a crime, and
his attorney said he informed the county right after the March raid
that they wanted the marijuana back.

But the Sheriff's Department, acting on a court order, destroyed most
of the 47 plants and up to 25 pounds of processed marijuana.

About 10 pounds remain and Wilson and the county are sparring in court
over its fate and whether the county should pay for the pot that was
destroyed.

The case highlights the shifting sands of medicinal-marijuana law,
which has developed, sometimes in a contradictory fashion, in state
and federal courts since California voters approved Proposition 215 in
1996.

"We have a situation here," Judge Raima Ballinger said, "where case
law is developing as we're all sitting here, which doesn't happen very
often."

About 30 members of the Guerneville club were in Ballinger's courtroom
Thursday for a scheduled hearing that was postponed until December.

Some people in Sonoma County and elsewhere in the state have gotten
marijuana back but county lawyers say that happened before an appeals
court ruling issued last year that set new standards.

One issue in deciding Wilson's case is going to be whether he had the
marijuana legally in the first place.

Citing the appellate-court ruling from September 2004, Ballinger said
he will have to prove that he lawfully possessed the pot taken from
his home.

Anne Keck, a deputy county counsel, said Wilson is neither a qualified
user nor a primary caregiver under Proposition 215.

The processed marijuana was found in small baggies inside two plastic
bins stored above panels in Wilson's bathroom ceiling. Deputies
thought the quantity seemed excessive for one person, Keck said.

But attorney William Panzer, a co-author of Proposition 215 who
handles medical-marijuana cases, said the pot was stored at Wilson's
place because of a prior break-in at the dispensary.

Sheriff's deputies, he said, had advised the club to store most of its
inventory off-site to try to avoid thefts.

Panzer contends the county must return the pot and should reimburse
the club for what was destroyed.

The club hasn't attached a value to the marijuana but the U.S. Drug
Enforcement Administration says a pound costs as much as $9,000.

Keck said authorities could find themselves in violation of federal
law if they transport the marijuana because medical use isn't recognized.

Panzer pointed to a provision of the federal Controlled Substances Act
that provides immunity to officials engaged in law enforcement
activities, but Keck said California's law lacks any requirement that
authorities return marijuana deemed to be for medicinal purposes.

A hearing is set for Dec. 16.