C.A. RULES PEACE OFFICER NO EXPERT ON 'MEDICAL' MARIJUANA

Panel Says Jury Wrong to Rely on Police Testimony About Defendant's
Intent to Sell

Police officers who have only limited experience dealing with people
who possess marijuana legally do not have a sufficient basis to
determine whether such persons intend to sell it, the Fourth District
Court of Appeal ruled Friday.

In a unanimous opinion, Div. Three reversed Christopher James Chakos'
conviction for possessing marijuana for sale based on a lack of
evidence, saying the police officer upon whose expert testimony the
conviction was based had no expertise in differentiating between
individuals who possess marijuana lawfully for their own consumption,
and those who possess it unlawfully with the intent to sell.

Writing for the court, Justice David G. Sills said:

"Mere and undefined 'contact' with undefined "investigations" is
manifestly not substantial evidence that an officer is in any way
familiar with the patterns of individuals who, under state law, may
lawfully purchase marijuana pursuant to a physician's certificate
under the Compassionate Use Act, nor does it show any expertise in
the ability to distinguish lawful from unlawful possession."

Traffic Stop

Chakos was arrested in 2004 after officers from the Orange County
Sheriff's Department conducted a traffic stop of his vehicle that
revealed the presence of 28.5 grams of marijuana, or just under a
quarter of an ounce, as well as $781 in cash and a doctor's medical
slip for lawful marijuana use.

A subsequent search of his apartment uncovered almost six more ounces
of marijuana divided amongst glass jars and plastic baggies in
differing, "irregular" amounts, 99 empty baggies, a digital gram
scale, and a closed circuit camera system displaying the walkway
leading to Chakos' front door.

Under California's Compassionate Use Act, Chakos was entitled to
possess up to eight ounces of marijuana. However, Deputy Sheriff
Christopher Cormier concluded, based on the "totality of the
circumstances," that Chakos possessed the marijuana for sale, a
conclusion Cormier offered as an expert while testifying as the sole
witness at Chakos' trial.

In support of his expert qualifications, Cormier pointed to 680 hours
of "general" training at the police academy, and 270 hours of
"narcotics training." He also said that he had been in the
department's narcotics unit for six years, where he had assisted more
than 100 investigations for possession or sale of narcotics.

Precise Quantity

Cormier told the trial court that the precise quantity of marijuana
found in the car, as well as the scale, the packing material and the
surveillance system, supported his conclusion that the amount was
more consistent with a sale than with personal use.

However, on cross-examination, he admitted that he had never actually
arrested an individual who possessed marijuana legally. He also
conceded that Chakos was a phlebotomist who used similar baggies as
those found in his room to take blood specimens, and that Chakos'
relatives had told him that the surveillance system was the property
of Chakos' step-brother, who sometimes stayed at the apartment with
Chakos and their mother.

On appeal, Chakos argued that insufficient evidence existed to
sustain his conviction given his physician's certificate and
Cormier's area of expertise on lawful marijuana possession.

Relying on People v. Hunt (1971) 4 Cal.3d 231, where the California
Supreme Court held that a narcotics officer's expert opinion that a
defendant intended to sell a controlled substance that he possessed
by prescription was insufficient to sustain a conviction for
possession for sale because the officer did not have sufficient
expertise with the lawful use of the drug, Sills agreed.

Noting that Cormier's experience was limited to cases where he had
"contact with investigations" concerning defendants who had engaged
in unlawful conduct, Sills wrote that "expertise in distinguishing
lawful patterns of possession from unlawful patterns of holding for
sale... is what is conspicuously missing in the case before us."

He also said that a reasonable trier of fact could conclude that the
presence of "irregular" amounts of marijuana in Chakos' apartment
demonstrated an intent not to sell the drug.

"[W]hile marijuana may be lawfully possessed under the Compassionate
Use Act, it is not exactly easily obtainable in open, licit
circumstances...," he wrote. "One might posit, then, that
individuals who may lawfully possess marijuana under state law for
medicinal purposes will have patterns of purchase and holding that
will reflect the practical difficulties in obtaining the drug."

Sills opined that these practical difficulties could also explain the scale.

"[A]nyone with the lawful right to possess marijuana will need to
take precautions not to insure that he or she does not get 'ripped
off' by a dealer, but that he or she does not possess more than the
eight ounces contemplated by the Act," he said. "Practical
difficulties of obtaining the drug also explain why a patient
entitled to possess it under state law might want to keep an extra
supply on hand within the legal amount, since supplies would not be reliable."

Conceding that these arguments were speculations that that could be
contradicted by expert testimony on the record, Sills said Cormier's
inability to do so because he lacked sufficient expertise was
precisely the point.

"The record fails to show that Deputy Cormier is any more familiar
than the average layperson or the members of this court with the
patterns of lawful possession for medicinal use that would allow him
to differentiate them from unlawful possession for sale.

Sills was joined in his opinion by Justices Richard M. Aronson and
Richard D. Fybel.

A phone call to the Attorney General's Office seeking comment was not returned.

Chakos' attorney Kristin A. Erickson told the MetNews that she was
"absolutely thrilled" by the decision. She said that it meant that
the government could no longer "put the same old expert on, even
though times and the law have changed," and predicted that law
enforcement agencies would now need to update their training to
address lawful, as well as unlawful, marijuana possession.

The case is People v. Chakos, 2007 S.O.S. 7464.