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State of California v. John Bearden (2007-2009, Solano County)

posted Jan 28, 2013, 4:40 AM by The Editor   [ updated Feb 25, 2013, 3:24 AM ]
Senior Citizen Prosecuted in Microscopic Medical Marijuana Case
by Vanessa Nelson  
Thursday, 07 May 2009

FAIRFIELD, CA -- How much medical marijuana is too much?

Calculating the amount appropriate for a patient’s medical use is a complicated matter, requiring insight into personal circumstances and methods of use.

But one California county has made a relatively straightforward determination.

According to Solano County law enforcement, too much medical marijuana means nine adolescent plants, a half-gram of bud and a quarter-gram of hash.

At least, that’s what sheriff’s detectives and a deputy district attorney asserted during a recent preliminary hearing in superior court.

The hearing was for John Darrell Bearden, an elderly medical marijuana patient who was arrested for a tiny outdoor grow in August 2007.

Allegedly sparked by a tip from Bearden’s neighbor, the bust was carried out by sheriff’s detectives working as part of the federally-funded task force known as the Solano County Narcotic Enforcement Team. It appears, however, that SOLNET didn’t get enough funding to hire detectives who could count to ten.

The team made their share of mistakes in the Bearden case, the most visible of which was the supposed miscalculation of the plant count. Although the detectives initially reported a plant count of fifteen, this number was amended down to nine when the evidence was re-examined a week after the bust.

It remains unclear whether this mistake was due to an honest slip in counting or more sinister motives, but theories abound.

Courtroom observers have whispered conjecture about plants being stolen from the evidence locker, but defense attorney William “Bill” McPike insists on an entirely different explanation. He contends that detectives purposefully exaggerated the plant count at the time of the bust.

“If there were nine immature plants, how would that justify the arrest?” McPike asked during the hearing, citing twelve immature plants as Solano County’s accepted medical marijuana quantity limit at the time of the bust. “It wouldn’t have gone this far if the plant count hadn’t been inflated.”

Although there may be some truth to the accusation, the matter of plant limits is not quite so simple. Legal wrangling over the implementation of California’s landmark medical marijuana law has put quantity rules in limbo.

Approved by voters in 1996, the Compassionate Use Act states that Californians with a valid doctor’s recommendation may legally possess and cultivate marijuana for personal medical use. Quantity rules weren’t introduced until 2003, when Senate Bill 420 was signed into law.

This legislation set a threshold amount of six mature or twelve immature marijuana plants per qualified patient. Individual cities or counties could put higher limits into effect, but could not go below the numbers set forth in SB420.

In May 2008, however, an appellate court declared these quantities to be in violation of the state constitution. As written in the appellate ruling in People v. Kelly, the California Constitution requires that amendments to voter-enacted laws be made through the initiative process, not through the legislature.

The Kelly case is currently being reviewed by the California Supreme Court. Until its ruling, the matter of legal medical marijuana limits remains an unanswered question.

Further complications have arisen from difficulties with the legal definition of maturity, and this has certainly been the case with John Bearden.

During Bearden’s preliminary hearing, expert witness Chris Conrad testified that the plants “hadn’t yet formed the morphological structures of what are called buds.” When sheriff’s detectives pulled them out of the ground in August of 2007, Conrad noted, they had been “a month away from the earliest time the plants can be mature.” Instead, as Conrad put it, the plants were at the “emerging flower stage” at which a person “can identify the sex but they’re not mature yet.”

The prosecution countered with its own expert witness, Detective John Arabia. When asked whether Bearden’s plants had been mature, Arabia responded, “Oh yeah. If you wanted to, you could extract THC from them.”

The discrepancy prompted Judge E. Bradley Nelson to seek a legal definition for plant maturity. He was unsuccessful, and this failure contributed heavily to his decision to leave cultivation charges against Bearden intact.

Defining maturity was not the only problem with the case, however.

Detectives also had difficulty verifying that Bearden was a valid medical marijuana patient at the time of his arrest. Older documents were on display, and Bearden wasn’t exactly forthcoming when it came to showing his most current doctor’s recommendation to the detectives. He was unresponsive, and investigative questioning consequently fell upon his wife.

Soft-spoken and amiable, Sandra Bearden identified herself to the detectives as a non-user of marijuana and reported that her husband had planted the marijuana patch the prior spring. When one of the detectives disputed Sandra’s claim that it was her husband’s first time growing marijuana, the ever-agreeable lady offered a more acceptable answer and said that he did do it before.

Although she would come to rue the consequences of her statements, it is clear that Sandra did her best to explain that the small medical garden was legal. As Detective Ed Hipol testified, however, Sandra also gave hints that the raid had been anticipated. “She said, ‘John said we were going to get busted someday,’” Hipol revealed on the stand.

As for his own interpretation, Hipol claimed that the detectives were perfectly willing to accept the legality of the garden. “If the individual had a current physician’s statement, it would have ended right there,” he stated on cross-examination.

Though pleasant-sounding, Hipol’s assertion was difficult to swallow. Based on what the detectives had found during their search of the home, they had already pinned Bearden as a drug dealer.

Amongst the seized items were a typewriter, blank labels, labels reading “For Medical Use Only,” an assortment of prescription-style bottles bearing labels with the same phrase, 78 empty plastic baggies, a triple beam scale and a smaller digital scale.

During the hearing, the judge challenged McPike for questioning Hipol on the reason the typewriter was confiscated. “I found it unusual they confiscated a typewriter,” the defense attorney stated.

“I found it unusual that someone still had a typewriter,” Judge Nelson returned.

But detectives had a definite theory about the function of the typewriter, and the district attorney later adopted it in full: that John Bearden was packaging his own marijuana for sale.

As Deputy District Attorney Julie Underwood characterized it, Bearden was “someone who was growing marijuana and has a whole room set up for the purpose of separating marijuana, putting it in pill bottles and putting labels on it.”

However, the defense had another explanation. Expert witness Chris Conrad testified that labeling was not necessarily evidence of sales. Some patients, he said, mark their own marijuana as being “for medical use only.” This informs law enforcement that the marijuana is medical, Conrad suggested, and also makes other people less likely to ask the patient to sell them any of the marijuana.

Still, it appeared to Conrad that some of the labeled bottles weren’t made by Bearden, but had been leftover from purchases made at an Oakland dispensary called CARES.

Plastic baggies had been seized, Conrad admitted, but he asserted that medical marijuana patients often have containers for personal use. That way, he explained, the patients can sort out different strains of marijuana or package a small amount of the medicine for use while traveling.

Detective Arabia scoffed at the theory. “If I finish using a medicine, I throw away the container,” he said.

Suggesting that Bearden’s grow was non-commercial, Conrad emphasized that no sales records were found and that there were no conspicuous luxury items at the modest home. Conrad dismissed the significance of the triple-beam scale and testified that drug dealers no longer make frequent use of them. Triple-beam scales are “old-fashioned,” according to Conrad, and are utilized mostly to weigh food for cooking purposes. Small digital scales are more typically used by modern drug dealers, Conrad claimed, but they are also used by patients who want to check the weight of marijuana they’ve bought for personal use.

Arabia disagreed outright, basing his claims on his experience interviewing suspects about their personal use of marijuana. “I have never known a person to weigh out the amount used in a dose,” he said. When he asked his subjects about a single dose of marijuana, Arabia explained, none of them gave an answer based on weight.
Bill McPike
Defense Attorney Bill McPike (left)

Nonetheless, McPike prodded the detective to acknowledge Conrad’s theory. “Do individuals weigh out marijuana when they use it in food?” the defense attorney asked.

Arabia’s answer was simple. “No, I think they just put it in the food,” he presumed.

Rather than tackling Conrad’s assertions one-by-one, Deputy District Attorney Julie Underwood attempted to undermine the expert witness wholesale.

She began by asking whether he had ever testified in a case where he gave an opinion that the marijuana was possessed for sale. When Conrad answered in the affirmative, the prosecutor hit him with a confusing flurry of quotes from the court transcript of his testimony in another case. The awkwardly-worded slices of testimony vaguely implied that Conrad would always have the opinion that marijuana was possessed for personal use. Still, the message was garbled and ambiguous.

Claiming no specific memory of this old testimony, Conrad shrugged off the comments by saying they sounded like he was verbally working through a misunderstanding with the judge. He then explained more precisely some of the factors on which he bases his opinions.

“A person can have one marijuana cigarette and intend to sell it,” Conrad pointed out. Therefore, he concluded, quantity itself was not a strong determinant of whether the marijuana was meant for sales. “A person would have to have at least a gram, half a gram minimum,” Conrad answered when asked about the minimum quantity that could be intended for sale.

However, as Arabia later testified, less than half of a gram of processed marijuana was found in Bearden’s home.

When it came to reporting the precise amount of processed marijuana seized from the Bearden residence, Arabia’s revelation brought light snickers from the audience.

After looking through his notes, the detective testified that the search yielded less than a half-gram of bud and less than a quarter-gram of hash.

Although he admitted that the search turned up a miniscule amount of actual marijuana, Arabia insisted that the garden was heavy-laden with potential marijuana. The detective guessed that the plants would have yielded up to a pound apiece, putting Bearden’s potential harvest to a maximum of nine pounds. The estimate appeared to be reasonable enough, but Arabia went on to avow that such a quantity of marijuana was inconsistent with personal use.

Possession for personal use usually involves amounts that are less than a half-ounce, the detective testified. “They buy enough for that moment, and that’s all,” Arabia said of marijuana users he has interviewed. “If they’re going to have a weekend party, they buy some for that, and that’s it.”

Conrad offered an opinion that was in direct opposition, stating that the plants would not yield a quantity inconsistent with personal use. Before being cut off by objections from the prosecutor, Conrad pointed out that the federal government distributes twelve pounds of marijuana annually to one of the patients in its Investigational New Drug program.

Underwood flatly refused to accept the possibility. “You’re not going to have nine pounds of marijuana for one person,” the prosecutor said, emphasizing the weight. “That doesn’t make sense.”

McPike refused to concede on the estimate, however. “We can’t go to the yield of the plants – they haven’t even been weighed,” the defense attorney argued. “He’s automatically not guilty,” McPike concluded of his client.

But acquittal was not so easily achieved, especially when confronted with some particularly damning evidence.

Detective Hipol testified that, at the time of the bust, Sandra Bearden made statements indicating that her husband distributed marijuana. “She admitted the plants growing outside were not just for personal use,” Hipol recalled. “She said they gave marijuana away.”

The defense found itself in a difficult position. There is little possibility of overcoming such a claim during the preliminary hearing, when the judge’s objective is merely to determine if there is sufficient evidence to make the charges stick. And even though the testimony about Sandra’s statement did not mention any sales, giving away marijuana is enough to qualify as “distribution.”

Still, expert witness Chris Conrad offered a different take on the incriminating statements. He had read Sandra’s quotes in the police report, and he remembered her saying that her husband shared marijuana with other patients. “I don’t recall her talking about anything other than medical use,” he said of Mrs. Bearden.

The prosecutor had her argument readily prepared, however. Underwood defined sharing as a form of distribution, just like selling, and she claimed that the legal consequences of the two are the same in this situation. “It’s not legal to sell or possess with the intent to sell under the medical marijuana law,” she said, then went a step further. “I would argue that the Compassionate Use Act doesn’t even apply here.”

While Judge Nelson wasn’t ready to fully disregard medical marijuana law, he also wasn’t ready to let Bearden off the hook for his hash. Upon examining the Compassionate Use Act, the judge announced that he had been unable to find an indication that hash was included in the medical marijuana law.

“There’s nothing in the law that restricts the amount of THC,” McPike tried to point out. “The Health and Safety Code talks about extracted resins from the plant, and that’s all concentrated cannabis is.”

The defense attorney’s argument was made in vain. The judge decided that the hash charge would stick, leaving Bearden to hope that a jury would give the matter more careful consideration.

Alternatively, if McPike succeeds with his present strategy, a jury may not be necessary at all. The next move for the defense is to argue a series of motions to dismiss, which could potentially get the case thrown out prior to trial.

John Bearden is forced to wait in the meantime, but there’s no denying him certain things.

He will continue to be accompanied to court by a small but dedicated group of local supporters.

He will continue to sit at the defense table proudly wearing a t-shirt that shows a marijuana leaf upon a red cross.

And he will continue to offer gentle smiles that light up his pale blue eyes and convey the assurance that, eventually, everything will be all right.

Originally published at www.medicalmarijuanaofamerica.com (now defunct).
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