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MODESTO, CA -- In a move that delighted a courtroom full of medical marijuana defendants on Friday, Superior Court Judge Nancy Ashley threw out the warrant used to raid the Oakdale Natural Choice collective.
As the judge put it, she made her decision because the affidavit that was used to obtain the search warrant “left out facts that were important.”
Defense attorneys argued that investigators made a showing of probable cause for the warrant only by intentionally or recklessly omitting references to medical marijuana. Such omissions, the defense insisted, could have misled the magistrate who signed the search warrant.
In particular, the affidavit described an undercover marijuana buy without disclosing that it was done by a medical marijuana patient who used his valid physician’s recommendation to access the dispensary.
“It’s clearly an omission and it’s clearly material,” defense attorney Ean Vizzi said Friday while arguing the matter. “The affiant told the magistrate this was a clandestine marijuana distribution ring. Nothing could have been further from the truth.”
For three days before Judge Ashley’s ruling, deputy district attorney Shawn Barlow attempted to salvage the case while questioning the investigators on the witness stand. The resulting hearing was a debacle in which all the testifying cops pointed fingers of responsibility at each other and ultimately failed to provide a solid reason for the omissions on the affidavit.
When it was all said and done, Barlow ended up relying on the claim that vague language in the business license application justified the raid of the Oakdale Natural Choice collective. According to case evidence, the application said the business would sell “soaps, lotions and natural therapeutic products” but did not specifically mention medical marijuana.
At the very worst, the defense asserted, such a discrepancy would just be a potential breach of the municipal code. That’s a gray area, since the opening of the Oakdale Natural Choice collective coincided almost precisely with the city’s passage of a moratorium on medical marijuana dispensaries. “The prosecution is attempting to turn a simple zoning violation into a violation of state Health and Safety Codes,” alleged defense attorney William Daley.
Predictably, Barlow considered the issue to be far more significant. “We know the business was hiding behind a faulty business license,” he argued in court. “That’s enough to send in a search warrant.” The prosecutor even went so far as to speculate that, if medical marijuana had been listed on the application, “we probably wouldn’t be here today.”
In the end, Judge Ashley’s ruling suggested that she was more worried about the omissions in the search warrant affidavit than she was about the language used in the business license application. “My concern is that what was presented in the hearing was not presented in the affidavit,” she said as she quashed the search warrant.
 That ruling left Barlow with little option but to dismiss charges against former dispensary operator Addison DeMoura and his wife Jessica, as well as former dispensary workers Michael Cadiz, Angel Herrera and Russell Green. A sixth defendant, Joseph Young, missed most of the hearing due to confusion over scheduling, and must return to court in December for a likely dismissal of his charges.
The path to this victory wasn’t short. The Oakdale Natural Choice collective and several employee residences were raided over two years ago, on July 31st, 2007. The defendants were arrested, but their arraignment was conspicuously delayed for the better part of a year. They were required to make regular court appearances during that period, but each time they were told that the district attorney was “still reviewing the case” and “no charges had been filed yet.” Only now, after the public demise of the case, is the reason for the district attorney’s hesitance so apparent.
While he was waiting for the charges against him to take shape, Addison DeMoura went on the offensive and filed a federal civil lawsuit against the local governments whose law enforcement agencies were responsible for his raid. The suit alleges a variety of damages related to the bust, including lost property and lost wages, as well as the emotional trauma Addison says his son suffered after police officers held the toddler at gunpoint during the search of the family home.
The defendants also used the district attorney’s stalling time to assemble a patchwork dream-team of attorneys to represent them. It seemed at first to be a motley grouping of lawyers from various approaches, but they came together with devastating success during this week’s preliminary hearing. They handled each round of cross-examination with intuitive coordination and diligence, leaving more than one witness looking dizzy by the time he stepped down from the stand.
The victory was unambiguous, but that’s not to say the case is definitely over for good. The district attorney could decide to re-file charges against the defendants, and for now this possibility prevents them from being able to get their seized property returned to them.
There is also the chance that the DeMouras and their associates could be indicted on federal charges as a result of their raid. Such a development would deprive them of the defense that they were following state medical marijuana laws and would almost certainly leave them with criminal convictions, but it’s an unlikely scenario. Though it was done on many occasions during the Bush Administration, the handover of medical marijuana cases from local district attorneys to federal prosecutors has become increasingly rare. And, as demonstrated by their poor performance on the stand, relying on the testimony of the investigators in this case may be more trouble than it’s worth for federal prosecutors.
 While acknowledging the possibility of a federal handover, Vizzi was highly doubtful. “This was a fiasco,” he said of the preliminary hearing and the law enforcement testimony. “You do that in front of a U.S. Attorney and they’re not going to be very impressed.”
Still, it’s a sure bet that the U.S. Attorney’s office is already well aware of Addison DeMoura and his case. He’s an energetic marijuana activist and entrepreneur, and he’s not known for keeping a low-profile. Also, some of his co-defendants were employed by another dispensary whose operators – Luke Scarmazzo and Ricardo Montes – were convicted after a federal trial last year. Investigators in the DeMoura case put a great deal of emphasis on this association.
And, of course, there’s the civil lawsuit that Addison filed in federal court in Fresno. He was thinking about this next legal battleground even while his preliminary hearing was in full-swing this week, and it was what was on the tip of his tongue as he left the courthouse after yesterday’s victory in state court. “I’m looking forward to going to Fresno,” he said earnestly. “Not so much for the fiscal reasons, but to exonerate my wife – she’s from this town – and also, as an activist, for a win for the movement.”
That lawsuit is scheduled for a hearing in January 2010.
Check back soon for a longer story detailing the preliminary hearing for DeMoura et. al.
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