PROSECUTORS WEIGH OPTIONS IN POSSIBLE MEDICAL POT CASES

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 Tri-City 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 Wednesday, 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
lif e."

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 that a dealer gets a permit, then 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.