East Fork Justice Jim EnEarl refused to suppress a search warrant and evidence that led to two arrests and the seizure of 50 pounds of marijuana, but invited the suspects' lawyers to revisit the issue at a Jan. 13 preliminary hearing.
He heard arguments Nov. 22 by defense attorney Derrick Lopez that his client, James Gilbert, had a permit for medical marijuana, therefore officers should not have raided his Ranchos residence on Oct. 5.
Lopez said officers had enough time to check with the state Department of Agriculture to determine whether Gilbert, 42, and homeowner Teresa Jo Ortega, 43, had permits.
Both claimed they did, and Ortega said hers was confiscated by officers along with $7,100 cash which she petitioned to have returned.
Gilbert and Ortega face several felony charges in connection with the cultivation of 11 marijuana plants with a street value of $400,000 according to authorities.
Gilbert's prior record includes a 1997 arrest in Barstow, Calif., after officers found 1,184 marijuana plants. He served three years in federal prison.
The search warrant was obtained after a probation officer knocked on the door at the home on Kathy Way looking for a fugitive and could smell the marijuana from the sidewalk.
"The information was only a telephone call away," Lopez said. "The Department of Agriculture can release information to law enforcement agencies."
He said officers had three days to investigate whether Gilbert had a permit.
"The information is in the state's hands and they don't check. If that's not reckless omission, then what is?" Lopez asked.
Prosecutor Mike McCormick argued that the defense was asking the court to require law enforcement officers to rule out all possible defenses before applying for a search warrant.
"It never occurred to me as a reasonably prudent person that my government would ever issue a medical marijuana permit to someone with Mr. Gilbert's background," EnEarl said.
According to court files, Ortega obtained a medical marijuana permit to treat pain she suffered following traffic accidents in 1994 and 2000.
She had a prescription for Marinol, a drug that contains the main ingredient for marijuana which she claimed was ineffective in treating her pain.
She obtained a permit for medical marijuana in January.
Lawyer Jack Sheehan, requesting the return of Ortega's money, presented loan agreements that showed the amounts she borrowed and when.
Ortega faces charges of possession of a controlled substance for sale and possession of drug paraphernalia.
Gilbert was charged with possession of a controlled substance, possession of marijuana, possession of drug paraphernalia and failure to appear on a Carson City traffic warrant.
EnEarl denied the motion to suppress at the conclusion of a one-hour hearing and set the matter for preliminary hearing Jan. 12.
At that time, the state is required to prove probable cause that a crime occurred and Gilbert is the suspect.
"This may well not survive the preliminary," EnEarl said, "but you are welcome in bringing the issue back up in District Court. I would encourage you to appeal it to the Supreme Court, if necessary."
EnEarl said he found no evidence that officers concealed knowledge of the medical marijuana permits prior to the arrests.
Sheehan asked that the Ortega preliminary hearing be set after Gilbert's.
McCormick added there was "high probability" that her money would be returned at the end of the week.
