Sheriff is ordered to release marijuana, for patients in collective!

Court of appeals won't rule on legality of pot order to DCSO

John Sowell
The News-Review

Monday, December 21, 2009

The Oregon Court of Appeals has dismissed the Douglas County Sheriff's
Office challenge of an order forcing the agency to provide marijuana
seized in a drug raid to three patients prescribed medical marijuana.

Three years ago, police raided the Dixonville home of Dwight Ehrensing,
a designated caregiver and grower for several people who are cardholders
under the Oregon Medical Marijuana Act.

They seized more than 120 pounds of processed marijuana, some of which
was processed for sale. They also seized 80 pounds of marijuana butter,
produced by slow cooking marijuana leaves with butter or margarine and
then straining out the leafy material. The butter, which contains high
levels of THC, the active ingredient in marijuana, is then used as a
food spread.

The raid also yielded 45 large marijuana plants, 10 grams of hashish,
psilocybin mushrooms and more than $7,000 in cash.

Ehrensing, 64, a medical marijuana cardholder himself, was charged with
manufacture, delivery and possession of a controlled substance. He was
accused of selling pot to others who weren't medical marijuana
cardholders.

Under the law, a caregiver can have six mature plants per person and 18
immature plants and can grow for four people. The seized amount far
exceeded that, authorities alleged.

Upon motion by the defendant, Douglas County Circuit Judge William
Lasswell ordered then-Sheriff Chris Brown to return 8 ounces each of the
marijuana to the three other patients for whom Ehrensing was growing
marijuana. Brown asked for reconsideration of the order after arguing
the county could be in violation of federal laws prohibiting delivery of
a controlled substance.

Lasswell rejected that argument, saying he had empathy for the patients
and the pain they were enduring. None of the three patients was accused
of a crime.

On appeal, the county and the Oregon Department of Justice argued
Lasswell erred when he ordered the sheriff to release some of the seized
marijuana. Although that marijuana was presumably used up, the state
argued its appeal was not moot because the county still has the rest of
the seized pot that Ehrensing contended should be released.

The three-member panel of the Court of Appeals disagreed.

"Here, in light of the state's concession at oral argument that it
cannot retrieve the released marijuana, any determination about the
lawfulness of the trial court's order would have no practical effect on
the parties," Judge Robert Wollheim wrote in the 17-page decision
issued Wednesday.

The court noted that although Ehrensing could have asked that more of
the seized marijuana be distributed, no request had been made. As a
result, there weren't any grounds for a ruling, the panel concluded.

"Any dispute over the marijuana still being held by the sheriff
would therefore be based on future events of a hypothetical nature. As
such, the issue that the state raises as to the marijuana that is still
in the sheriff's possession simply is not ripe at this time,"
Wollheim wrote.

In a dissent, Judge Walter Edmonds said that by concluding the question
was moot, the Court of Appeals effectively prevented the state from
appealing.

"The majority's reasoning effectively denies the state a statutory
right to appeal because it obeyed the trial court's order," Edmonds
wrote.

Ehrensing is set to go to trial on the drug charges Jan. 27. A 12-member
jury will hear the case in Judge Joan Seitz's courtroom. She was
assigned the case after Lasswell retired earlier this year and went on
senior status.

Ehrensing has filed a motion to have the charges dismissed for lack of a
speedy trial. A hearing on that motion is scheduled for Dec. 29.

• You can reach reporter John Sowell at 957-4209 or by e-mail at
jsowell@nrtoday.com.