DEA Raids Aurora Medical Marijuana User
by Ari Armstrong, July 12, 2004
See Medical Marijuana in Colorado for links to more articles about this issue.
On the afternoon of May 27, around 20 armed agents from the DEA, the Aurora PD, and possibly other agencies stormed the home of a licensed medical marijuana user and provider and confiscated small amounts of marijuana and around $3,000 worth of gardening equipment, according to the license holder and his lawyer.
Dana (he preferred I not use his last name), the Aurora man whose home was searched based on a state-issued warrant, said he is licensed through the state of Colorado to grow marijuana for medical purposes for himself and one other person. According to the Colorado Constitution, each license permits six marijuana plants and two ounces of marijuana, or an amount that is medically necessary. Dana said he had 12 growing plants and less than an ounce of dry marijuana and thus was within the state's numerical guidelines.
Dana said the DEA is counting 19 plants. Dana's lawyer, Robert Corry, confirmed this afternoon that official documents list 19 plants seized, but Corry said seven of the plants were dead, non-producing, and intended to be thrown away, as Dana said previously.
If Dana is charged at the state level, he will be able to raise as an affirmative defense his medical use of marijuana, according to Colorado law. If he is charged federally, however, federal law admits no such defense.
Dana said he kept his caregiver card posted on his basement wall and the license for his own use in his wallet. "Two days before this [raid] happened, somebody broke into my car and stole my wallet," Dana said, though the state registry can verify the license. The agents who searched his house "took the one that was on the wall." Dana said that he told the DEA agents on the scene that he was licensed to grow marijuana for medical purposes. He said the response he got was something like, "It doesn't matter to us, because we're federal, we're DEA."
Dana said that, when the agents came to his home, they wore bullet-proof vests and "they all had their guns drawn." His wife was at work and he was about to go pick up his three children at school. "At least they were nice enough to let me call my wife, so she could get the kids," Dana said.
Dana said that, at first, he saw a single car from the Aurora PD coming down the street. "After that, there were just a ton of cars." He said the agents' guns were "kind of pointed upward at shoulder height," and they did not point the guns at him. "It was something else; I'll never forget it," Dana said.
At this point, Dana said, "I want my equipment back. I'd like to get my stuff back in working order."
Dana suffers from reflex sympathetic dystrophy. Dana said this disease of the central nervous system affects different people differently -- mostly it affects his feet. "It burns like you just can't believe... It feels like my feet are inside a deep fryer... My feet will swell, they'll turn white or blue. It's always there. Sometimes it gets worse, sometimes it's not as bad. A lot of times I've passed out from the pain, or thrown up," Dana said.
"I know when it's going to start coming on," Dana added: "Stress is the big one."
He described his experience in the past: "Once the pain gets away from me, I can't get it back without some kinds of intervention, medically." However, "I haven't done that since I started with the marijuana."
Dana said of marijuana, "It's twice as effective as morphine is for me. I've got a prescription for morphine right now. It's not anywhere near as effective as marijuana is. Not even in the same ballpark." He said he "could just take handfuls and handfuls" of his prescribed pain killers, but over time they became increasingly less effective. "I was in the emergency room so many times before I started taking marijuana. I hated that part of my life, and it scares me to think I might have to return to that... Why me? Why would they mess with me? I don't understand it. I just don't understand it," Dana said. The doctor who signed off on Dana's license application declined to comment.
Referring to a case in Steamboat Springs, in which federal agents seized a cancer patient's medical marijuana and refused to give it back, Dana said, "It drives me nuts, how they have access to all these medical marijuana cases."
Corry wondered how in-home gardening qualifies for federal investigation. He believes the commerce clause has been interpreted too broadly. "It's going to take many years to recover the commerce clause, though I think things are going in the right direction," he said.
Dana said he has no idea how he became the target of an investigation: "How did I get on the radar screen to begin with? I'd sure like to have an answer to it, because it's just driving me nuts."
Dana said that, five or six months ago, his home was broken into and a few of the supplies in his basement were stolen. However, according to Corry, the DEA has denied a paid or unpaid informant was used for the case. Dana also said he's discussed his medical case "one on one" with a number of people, he has purchased gardening supplies, and he's conducted a lot of research over the internet.
Corry also wondered why his client became the target of a federal investigation: "It's not like we don't have enough crime already. This guy's not hurting anybody. He's suffering now, and he'll continue to suffer while law enforcement wrings their hands." Today Corry added, "My client is getting progressively worse" as he relies more on "heavy prescription drugs."
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Representatives from law enforcement and prosecution either refused to provide me with much additional information or they didn't know it. While on the phone with Daniel Reuter, the Public Information Officer for the local DEA, he responded with skepticism after he asked me where I got my information, and I said Dana and his attorney. But when I pointed out the precise purpose of my call to Reuter was to verify the information I'd been told and acquire additional facts, Reuter said, "My understanding is that's probably an ongoing case, and we don't talk about ongoing cases." (Reuter was willing to discuss a number of other matters, though.)
On July 8, just before noon, I called Jeff Dorschner, spokesperson for the U.S. Attorney's office. He said of Dana's case, "The matter's still under investigation." Which agencies were involved? "I think it was one of these drug task forces... I think it was the South Metro Drug Task Force, but I'm not certain." However, the next day, a woman from Aurora's Vice and Narcotics division said that task force doesn't handle that area, so which agencies were involved in the raid remains unclear.
Which agency initiated the investigation, and why, is also unclear. I'd been told the warrant was signed by a state-level judge, and a DEA agent referred the case to a state-level prosecutor. Today, Corry confirmed that, according to official documents he's received, Arapahoe County Judge Ethan D. Feldman signed the warrant, and DEA Special Agent Brian Villella initiated a search warrant and filed an affidavit. Corry said he has not received all the information pertaining to the warrant.
Dorschner said, "Based on limited information we have, I don't think we're pursuing any court action" at the federal level. However, Reuter left a voice message during the evening of July 9, and he said, "My understanding is that it's in the federal courts now."
On July 8, around 4:50 pm, I spoke with Eva Wilson, Senior Chief Deputy District Attorney whose office handles Arapahoe County (and who is also a candidate for District Attorney). She said, "No decision has been made, but it has been submitted for filing of charges." She said she thought the DEA referred the case, but she wasn't sure. A representative from the Aurora PD said a DEA agent referred to case to Wilson's office.
Both Wilson and Reuter suggested I can obtain copies of the affidavit used in connection with the search warrant, along with a list of items seized. However, I called the courts, and representatives told me they have no such information for this case. Today Corry said he does have the list of items seized, along with part of the information pertaining to the search warrant, which he described as "not very helpful."
I called the Aurora PD to discover more information about the action of May 27. An agent there referred my name to a DEA agent, who in turn referred my name back to Reuter. In his voice message, Reuter said, "It's in a judicial phase... under Department of Justice guidelines, we need to defer all our questions to [Jeff Dorschner] about the specifics of the case... He can answer all your questions about whether it was filed locally, and then went federal, or vice versa."
I left a message with Dorschner this morning in another attempt to verify the details of the case. My call had not been returned as of the release of this story. Previously, though, Dorschner did not provide information about which agency initiated the investigation or which agencies were involved in the raid. He said his office learned of the case two weeks after it happened. "I can't provide details, because it reveals means and methods of criminal investigative techniques."
Dorschner emphasized the DEA is not intentionally seeking out licensed medical marijuana users: "During the normal course of the investigation, using traditional investigative techniques, they came across a location that was suspected of growing marijuana. They used other investigative techniques to obtain probable cause. They used probable cause to approach a state judge to obtain a state search warrant. Upon executing that search warrant, they came across a marijuana grow... I continue to reinforce to you that the U.S. Attorney's office is not targeting medical marijuana users in compliance of state law... We target large-scale traffickers." He said the DEA's role also is to investigate large-scale traffickers, though the agency is obligated under federal law to seize even small amounts of marijuana it finds.
When I suggested to Dorscher that local agents sometimes seem to bring in the DEA in order to skirt state law, Dorschner said, "I vehemently disagree with your premise... That is just outright wrong." Instead, he said the DEA cooperates with local agencies, and sometimes deputizes local agents, to "promote interagency cooperation... without having to worry about" regional boundaries. He added, "The DEA would naturally be a part of any such [drug] task force... These task forces exist because the DEA has facilitated them... It's important for you to understand that we're not walking down a list of medical marijuana users..." However, he granted, sometimes an investigation will lead to an action against someone like Dana.
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[The following information was provided by Robert Corry, who is representing Dana, the man whose house was raided by the DEA. Obviously, Corry has an interest in this matter. The documents are provided in order to compile the most complete information about the case possible. I would be happy to add any information or statement sent to me from officials from the DEA, the U.S. Attorney's office, the state-level prosecutor's office, or any other agency involved in this case. -- Ari Armstrong]
June 22, 2004
James J. Peters, Esq.
Re: Request for Forthwith Return of Marijuana, Registry Cards, Paraphernalia, and Growing Equipment of Dana *****
Dear Mr. Peters:
This law firm represents Dana *****, of *****, Aurora, CO 80015. On the afternoon of May 27, 2004, Mr. *****'s home was raided by at least twenty unknown police officers, seeking marijuana and other unspecified items. The police parked their numerous cars in front of Mr. *****'s home on a peaceful suburban cul-de-sac, causing extreme embarrassment to Mr. *****, his wife, and their three children, ages 9, 9, and 14.
After the police conducted their lengthy and extensive search -- trashing Mr. *****'s basement in the process -- officers were surprised to find only twelve* live marijuana plants (the oldest of which was 3-4 weeks from harvesting), grow equipment, and Mr. *****'s State-issued licenses indicating that he is both a patient and a primary caregiver under the Colorado Constitution, Article XVIII, § 14. This popularly-enacted constitutional provision permits Mr. ***** to grow and possess twelve marijuana plants, because he has a debilitating condition and both a State-issued valid patient card and serves as a caregiver for another patient.
Mr. ***** has suffered from Reflex Sympathetic Dystrophy ("RSD") nerve disease for approximately eight years. Symptoms of RSD include acute back pain, severe unrelenting pain in feet and legs, swelling in feet, and depression. He has had back surgery, and surgery to remove nerves from his left leg. He has had surgery three times to install an internal morphine pump, and surgery three times to remove it due to infections. The last surgery he contracted spinal meningitis, and he has had over a hundred spinal blocks. He had tried every known medication for this condition, and marijuana far and away provides the most relief for Mr. *****'s pain, at a fraction of the cost and side effects of pills and other modern medication.
The value of Mr. *****'s growing equipment is at least $3,000.00, and the value of the marijuana taken is at least $1,000.00. Mr. *****'s medical marijuana, equipment, cards, and other property are gone, but the excruciating pain from his medical condition remains. It is difficult to put a monetary value on such acute pain and suffering.
When the police arrived at Mr. *****'s home to execute the search warrant, he politely informed them that he had State-issued cards permitting him to grow medical marijuana. In response, the police confiscated his State-issued cards. No criminal charges were filed, and it appears that your office has made the correct decision not to prosecute Mr. ***** for any criminal violation stemming from this seizure. It is clear that Mr. ***** has complied with the law in every way, and there is no basis for any criminal prosecution of him. Article XVIII § 14 establishes a clear constitutional right for Mr. ***** to grow and use medical marijuana, and an affirmative defense against any criminal prosecution. Accordingly, Mr. ***** hereby requests that you make a determination that Mr. ***** is entitled to the protection of Article XVIII § 14 and instruct the police to return his property and marijuana immediately, pursuant to Article XVIII, § 14(2)(e). Mr. ***** believes that, because the police pulled the plants from the soil, the police killed his marijuana plants when they were seized, in violation of the Colorado Constitution.
Whatever your opinion of Article XVIII, § 14, it is undisputed that a majority of Colorado voters added a right to medical marijuana to the Colorado Constitution, the supreme law of our state. It is time for law enforcement to respect the law they are sworn to uphold.
We look forward to your prompt response to our request for the return of the equipment, cards, and plants. If we do not hear from you by June 25, 2004, we will file an appropriate action with the District Court shortly thereafter. Please treat this letter as notice under C.R.S. § 24-10-109. If you have any questions, please call me at 303-634-2244. Thank you for your consideration.
CORRY & FELLOWS, LLP
Robert J. Corry, Jr.
* The police report states that "nineteen" plants were found, but the seven extra plants were dead immature plants a few inches long, had been dead and in the trash can for two weeks, had not flowered, and were totally useless. At any rate, Article XVIII § 14(4)(b) provides that possession of more than six plants is permissible if medically necessary.
July 2, 2004
Byron L. Jones
Re: Medical Marijuana Patient in Extreme Pain; Immediate Decision on Your Part Requested
Dear Mr. Jones:
This law firm represents Dana *****, of *****, Aurora, CO 80015. On the afternoon of May 27, 2004, approximately twenty police officers raided Mr. *****'s home, taking his medical marijuana and growing equipment. Mr. ***** had all the appropriate state-issued marijuana licenses and has a complete defense to criminal charges under the Colorado Constitution, Article XVIII, § 14. DEA agent Brian Vallela [actually spelled "Villella"] has informed me that the DEA will not present this case for federal charges to be filed, and specifically noted that he sent the case to you for review. My earlier letter to District Attorney Peters resulted in the enclosed response from Eva Wilson of your office [not included].
Mr. ***** suffers from Reflex Sympathetic Dystrophy ("RSD") nerve disease. Symptoms of RSD include acute back pain, severe unrelenting pain in feet and legs, swelling in feet, and depression. He has had surgeries on his back, to remove nerves, to install an internal morphine pump, and to remove it due to infections. He has spinal meningitis, and has had over a hundred spinal blocks. Marijuana far and away provides the most relief for Mr. *****'s pain.
Without his medical marijuana, Mr. ***** is suffering from extreme pain, which gets worse by the day. Mr. *****'s physician is deeply concerned that his condition is rapidly worsening. Your office has no basis to bring state criminal charges against Mr. *****, and he needs medicine and/or growing equipment immediately.
It is time for compassion on your end, and quickly. In this instance, justice delayed is justice denied.
Mr. ***** hereby requests that your office make an immediate determination that he is entitled to the protection of Article XVIII § 14 and instruct the police to return his property and marijuana immediately, pursuant to Article XVIII, § 14(2)(e).
We look forward to your prompt response to this letter. Please call me at 303-634-2244 or write at your earliest convenience. Thank you for your consideration.
CORRY & FELLOWS, LLP
Robert J. Corry, Jr.
Enclosure [not included]