SUSPECT CLAIMS RIGHT TO GROW POT

FREMONT -- A 41-year-old Fremont man whose dog was shot by police
officers when they forcibly entered his house looking for marijuana
plants has a prescription from his doctor to use pot and a certificate
from the Oakland Cannabis Cooperative allowing him to grow and possess
the herb, according to documents obtained by The Argus.

Robert Filgo and his 38-year-old wife, Yvette Filgo, were arrested
Tuesday night after seven police officers served a search warrant at
their Niles home and found 79 plants in the back yard and garage.

Yvette Filgo was booked into Fremont Jail and released with-out
charges Wednesday morning. Her husband was taken to Santa Rita county
jail in Dublin, then to Valley Medical Center in San Jose, where he
was cited and ordered to return to court in October, facing possible
charges of possession of marijuana with intent to sell.

During the raid, their 1-year-old shepherd-Akita mix, Little Bear, was
shot at nine times and killed as he charged officers, police said.

The incident unfolded around 10 p.m., when Filgo heard someone
pounding on his front door. Before he could open the door, officers
burst through shouting that they had a warrant and were going to
search the home, he said.

Filgo was ordered to the floor.

Then, at least one officer fired at the dog three times, striking him
once in the rear.

Although police said they were protecting themselves from a barking,
aggressive dog, Filgo -- and his secretary, Tedra Sheen, who was in
the kitchen at the time -- told a different version of what happened.

The dog was barking at the officers but did not move, said Sheen, 26,
who is 10 months pregnant.

"They never asked him to restrain the dog," Sheen said, contradicting
the officers' version of events. "They overreacted. The dog may have
looked mean, but he never lunged or charged the officers."

The first three shots awoke Mrs. Filgo, who came out of the bedroom,
where she had been sleeping. At least one officer pointed a gun at her
and ordered her to the floor next to her husband.

While that was going on, the wounded dog ran into the kitchen,
knocking over a trash can, before heading back toward a screen door
near the officers, Filgo said.

At that point, police fired six more shots.

"I never heard gunshots like that before," Filgo said. "The flurry of
so many shots in such a short amount of time. ... I couldn't imagine
what was going on."

But police say they have a right to defend themselves.

"While executing the search warrant, they felt the dog was endangering
their safety, and they have the right to defend themselves," Detective
Bill Veteran said.

A Fremont police division commander will investigate the shooting, as
in any incident that involves an officer firing his or her weapon,
Veteran said.

During the search, some officers interviewed the couple and Sheen,
while others found 79 plants -- one-third of which were seedlings --
along with a smoking device, Filgo's medical marijuana cards, several
bags of marijuana and his computer. But they left behind several other
bags of marijuana, a scale and all of Filgo's growing ma-terials,
including lights, fertilizer and hoses.

Now, the Alameda County District Attorney's Office -- which received
the case Thursday but returned it to police for further investigation
- -- must decide whether to file charges.

While no one will say specifically what that investigation entails,
the district attorney, in order to convict Filgo, must be able to
prove to a jury that he was growing the marijuana with the intent to
sell.

Deputy District Attorney Richard Klemmer would not comment about this
case specifically, but did say he looks at each incident on an
individual basis based on all of the evidence.

"If the case and the evidence establish that the individual is
selling, and we believe we can prove it to a jury, then that
individual -- whether he has authorization or not -- will be
prosecuted," said Alameda County Assistant District Attorney Richard
Klemmer.

Jeff Jones, executive director of the Oakland Cannabis Buyers'
Cooperative, said state law allows people with a doctor's prescription
to possess, use and grow marijuana for personal use. But that law does
not delineate what constitutes personal use, putting the district
attorney's office in the position of distinguishing between those who
use the drug because they're sick and those who use the certificate as
a shield to grow and sell the plant for profit.

For his part, Filgo just wants his marijuana and his computer
returned.

He's self-employed in the high-tech industry, calibrating
quality-control equipment.

"I can't work," he said. "They have my computer with my customer list
and billing information."