Because marijuana possession is "ubiquitously ... illegal," law enforcement officers are not required to determine if a suspect has a medical marijuana card to establish probable cause of criminal activity, District Judge Dave Gamble ruled last week.
Gamble denied a motion to suppress a search warrant and evidence which led to two arrests and the seizure of 50 pounds of marijuana last October.
Lawyer Derrick Lopez sought the suppression order because he said officers failed to acknowledge his client, James Gilbert, and homeowner Teresa Jo Ortega, had medical marijuana permits before they arrested the couple and confiscated plants with a street value of $400,000.
The seizure took place Oct. 5 after Douglas County sheriff's officers, looking for a felony suspect, smelled the marijuana from outside Ortega's Gardnerville Ranchos home.
Deputies returned a few days later with a search warrant and arrested the couple and seized the plants in a pre-dawn raid.
Charges were dismissed against Ortega, but Gilbert faces charges of possession of a controlled substance, possession of marijuana, possession of drug paraphernalia and failure to appear on a Carson City traffic warrant.
Gamble issued his decision last week after a hearing May 15.
"The courts have long held the plain smell of an illegal substance detected by a qualified officer is sufficient to establish probable cause for a search warrant," Gamble wrote in his decision.
The affidavit for the search warrant also alleged that Gilbert had a significant history of arrests and one major conviction for the illegal sale and/or possession of marijuana.
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.
"Finally, the affidavit reveals officers initially visited the defendant's residence to discover if he was harboring a fugitive," the decision said.
Gamble said Gilbert wants the court to determine state law operates to give medical marijuana cardholders qualified immunity from search and seizure, suggesting the state had the burden of showing Gilbert's use was unlawful prior to establishing probable cause for search and seizure.
Lopez compared the practice of law to marijuana possession, asking whether he could be accused of practicing without a license if the accuser didn't bother to check.
Gamble rejected the comparison, saying the practice of law is a legal activity, sometimes practiced illegally, while marijuana possession is an illegal activity, sometimes practiced legally.
"Given the ordinarily unlawful nature of marijuana possession license status determination is unnecessary under a totality of the circumstances analysis, to establish the reasonable probability of criminal activity," Gamble said.
Authorities confiscated 11 marijuana plants with a street value of $400,000 at Ortega's house, according to authorities.
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.
Lopez said officers had three days to investigate whether Gilbert had a permit.
Gamble said by reconciling provisions of the medical marijuana law with established principles of law, the affidavit included "well-respected indicators of criminal activity" sufficient to establish probable cause for a search warrant, inclusive of the operating effects of the state law.
The case was remanded to East Fork Justice Court. Gilbert had waived a preliminary hearing pending Gamble's decision.
