JUDGE WEIGHS DROPPING TRIDENT BUST

GLENWOOD SPRINGS -- In a case that could set precedents for dealing
with Colorado's medical marijuana law, a district judge is weighing
whether or not to dismiss a drug case after investigators admitted on
the witness stand on Thursday that they wrongly destroyed marijuana
belonging to a licensed grower, violating the state constitution.

The attorney for marijuana grower Jennifer Ryan asked District Court
Judge Jim Boyd to either toss out the case or the evidence -- some
131 marijuana plants that were seized when officers with the
interagency Two Rivers Drug Enforcement Team raided a Rifle apartment
last August.

Officers said they uprooted and smashed the plants before they knew
about a constitutional provision that requires them to be preserved
until the case is settled, then after learning about the provision,
they buried them in a landfill.

Under cross-examination by Ryan's attorney, Kristopher Hammond, both
TRIDENT task force commanders Jeremy Ownbey, a Glenwood police
officer, and Tim Fisher, a Garfield County sheriff's deputy assigned
to TRIDENT, admitted they knew they were violating the state
constitution when they destroyed the plants.

"So your excuse is ignorance of the law?" Hammond asked Fisher.

"No sir," Fisher said. "I don't have an excuse."

Deputy District Attorney Jeff Cheney, who said the case is on the
"sacrificial altar," said it shouldn't be thrown out because the
officers were acting on good faith, and that protecting property
shouldn't trump a legal investigation.

"The medical marijuana argument is a guise," he said. "It's a
disguise for growing marijuana and distributing it" to people not
authorized to smoke it.

Acknowledging the constitutional issues involved, Boyd said he may
take weeks before rendering a decision.

"This is a new constitutional provision," he said. "I'm not going to
give that decision casually."

TRIDENT officers arrested Ryan, husband Gene Brownlee and two others
after they said they found 131 marijuana plants growing in the Rifle
apartment they were moving into. Ryan admitted the plants were hers,
but said she was allowed to have them because she was a licensed
medical marijuana caretaker for five clients, including
Brownlee. She's pleaded not guilty to cultivating marijuana and said
recently she's divorcing Brownlee.

Authorities said even if she was a licensed caregiver, she was far in
excess of the amount she was allowed to possess.

Colorado voters passed Amendment 20 in 2000 allowing pot to be used
for medicinal purposes. It allows those holding permits to possess
six plants, three of which can be flowering, and as much as 2 ounces
of the drug. It also allows suspects to argue in court the need for
more marijuana than the law allows.

It also requires that police hold marijuana seized by a licensed
caregiver until the case is resolved.

Cheney said the officers didn't know any better when they destroyed
the plants, and that if they had, they had no easy way to preserve
them. The point of the constitutional provision, he said, was to
protect private property, and that shouldn't trump a police investigation.

He argued the destruction of the plants failed to meet legal
precedents that say sanctions shouldn't be imposed if the evidence
couldn't help the defendant and wasn't destroyed in bad faith.

He urged Boyd to impose a lesser sanction if any at all.

"There's no bad faith and there shouldn't be a sanction," he said.

Hammond charged that TRIDENT officers flouted the voter-approved
amendment and should be sanctioned by having the case dismissed or
the evidence thrown out.

"I believe that law enforcement needs to be sent a message that if a
law is on the books that changes the way you do your job ... if they
don't bother to find out what the law is four years after it's been
on the books, I don't think they can hide behind bad faith," Hammond
said. "I think it is bad faith. It's willful ignorance."

He argued the destroyed plants could provide important
evidence. While some of the plants were as tall as four feet, many
were tiny, he said, and may have been no more than leaf cuttings
placed in soil that hadn't taken root. They might not be considered
plants, he said, and Ryan wouldn't be in violation.

"I don't believe we can come up with a more clear and more flagrant
violation of the Colorado constitution than what's happened in this
case," he said.

Investigators said they raided the apartment after an apartment
caretaker noticed the smell of chemicals coming from the apartment
and investigated. He found the plants in the basement in a
hydroponics growing system underneath grow lights.

TRIDENT officers obtained a search warrant and seized the plants,
keeping a single leaf as evidence from the larger plants and bagging
the smaller plants in whole. That evidence returned from a Colorado
Bureau of Investigation crime lab on Wednesday, investigators
said. Officers also took video and still images of the plants, and
showed the video in court on Wednesday.

Hammond has also filed motions to suppress evidence and a search
warrant. He argued Ownbey embellished on his affidavit for a search
warrant, and that police had no right to raid the residence before
they found out if Ryan was authorized to grow pot. Cheney disputed
those allegations.

The seizure led to the arrest of Ryan, Brownlee, his nephew Justin
Brownlee and family friend Drew Gillespie. Gillespie pleaded guilty
to cultivation charges and is on two years' probation. Gene Brownlee
is accused of growing and possessing pot with the intent to
distribute. He says he is allowed to smoke marijuana to deal with a
chronic esophagus ailment that can lead to cancer. Justin Brownlee
is accused of unlawful cultivation.

Boyd said he hopes to make a written decision before an April 28
pretrial conference.