POT GROWERS STUCK IN LIMBO OF LEGALITIES MAY HAVE LOOPHOLE

Fremont, Newark men face possible charges after police raids despite permits to
grow

A grower's permit allows the owner to cultivate and use marijuana for
medical purposes.

But how much marijuana is too much marijuana? Is it 21 plants? Is it
79? And if the permit owner isn't using all of what he or she has been
cultivating, what is being done with the rest?

Those questions are at the heart of two cases involving Fremont area
men, including one who was arrested on suspicion of possession with
intent to sell.

The Alameda County District Attorney's Office is considering filing
charges against Robert Filgo, 41, of Fremont, after police seized
about 79 marijuana plants in a raid last month at his Niles home.

Filgo, who was cited and ordered to return to court by Oct. 1, showed
up as required, but he was told no charges had been filed -- at least
not yet. The District Attorney's Office at the Fremont Hall of Justice
sent the case back to Fremont police for further investigation,
Assistant District Attorney Richard Klemmer said.

If Klemmer elects to file charges, a warrant will be issued for
Filgo's arrest.

Police shot and killed Filgo's dog and confiscated two computers
during the Sept. 2 raid, and officers also confiscated his marijuana
plants -- despite the fact he has a grower's permit. Filgo has a
prescription from a doctor to use marijuana for a variety of ailments
and a grower's permit issued by the Oakland Cannabis Buyers'
Cooperative.

Filgo remains in legal limbo, uncomfortably waiting for a decision and
his property.

"I have this fear that all of a sudden they're going to come
storm-trooping down my driveway late at night," he said. "I just want
to get on with my life."

In a similar incident Sept. 25, Newark police raided the home of a
41-year-old man and seized 21 plants -- the majority 6 to 8 feet tall,
police said -- even though the man had a grower's permit posted.
Police are not releasing the man's name.

The Newark man was not arrested, but his case was forwarded to the
district attorney's office seeking a complaint for cultivation of
marijuana and possession of marijuana for sale, Newark police Lt. Tom
Milner said. As with the Fremont case, the district attorney's office
sent the Newark case back to police for further investigation.

When Proposition 215 passed in 1996 -- with 55.7 percent of the vote
- -- it allowed Californians with permission to grow, possess and use
marijuana for medical purposes. But the statute does not authorize
people to possess the drug for the purpose of selling.

"If he's distributing and we can prove it, we'll charge him," Klemmer
said several days after Filgo's plants were seized. "Or if he is in
possession of an amount clearly above what is medically viable, then
he's going to get prosecuted."

Police will continue to investigate similar cases and confiscate any
plants they find, Fremont Detective Bill Veteran said, even if the
grower has a permit.

"We're going to go out and enforce the laws," Veteran
said.

It then would be up to prosecutors to determine who is breaking the
law and who legitimately needs to smoke marijuana for medical purposes.

Klemmer said he would have no reason to prosecute an elderly woman
with cancer who grows one plant and smokes occasionally.

But what tends to happen, Klemmer said, is a dealer gets a permit,
sets up a growing operation -- with large lights and packaging
materials -- and begins distributing the drug.

"Some people see a little opening and try to drive a truck through the
hole," Klemmer said of the law.

While a grower's permit doesn't bar prosecution, said Jeff Jones,
executive director of the Cannabis Buyers' Cooperative, it can be used
as a defense.

A grower tried and found not guilty "can sue for false arrest or for
any type of misconduct," he said.