cannabisnews.com: Debate Over Search Warrant Delay Medical Pot Trial Debate Over Search Warrant Delay Medical Pot Trial Posted by FoM on August 31, 2000 at 13:42:07 PT By Wayne Wilson, Bee Staff Writer Source: Sacramento Bee Jurors who were scheduled to hear opening statements today at the medical marijuana trial of Steven and Michele Kubby have been told to wait until next Wednesday to report for duty. A dispute erupted Wednesday over a recent California Supreme Court decision that, if applied to the Kubby case by Judge John L. Cosgrove, could result in dismissal. The defense asked Judge Cosgrove to re-examine the constitutionality of the search that led to the Kubbys' arrest in light of the Supreme Court's "Camacho" decision, and the judge, over the prosecution's objections, agreed to do so.The Kubbys claim their right to privacy was violated by police, who gathered on a hill in a forest at the rear of their Squaw Valley home and peered in the windows to obtain information used to obtain a search warrant.Cosgrove ordered an evidentiary hearing on the matter and listened Wednesday to testimony from the deputy sheriff who obtained the Kubby search warrant.The hearing will continue this morning.At issue is the contention that the police had no legal right to be where they were when they looked through the Kubbys' windows.The "Camacho" ruling, issued July 22, reversed the conviction of a man arrested by police who "looked through a window and observed defendant packaging cocaine in his home."Because they were trespassing in the man's side yard, "a place they had no legal right to be," their observations and subsequent actions violated Camacho's Fourth Amendment right to be free of unreasonable searches and seizures, the high court ruled."Although the line we draw today lets an unquestionably guilty man go free," the justices wrote, "constitutional lines have to be drawn … and constitutional lines are the price of constitutional government."In the Kubby case, Placer County authorities obtained a search warrant based on nighttime observations made by officers peering through a rear window of the Kubby home from their vantage point on adjoining property.An affidavit filed by sheriff's Deputy Michael Lyke, a member of the North Lake Tahoe Narcotics Task Force, declared that officers "believed" the property next to the Kubbys' was U.S. Forest Service land.On Wednesday Lyke testified that the basis for that belief was something an area firefighter told him.But it turns out that the parcel is private property owned by the Poulsen Foundation and administered by Plumas County District Attorney James Reichle, defense attorney J. David Nick informed the judge.According to Nick, detectives could have and should have ascertained the property's ownership at the same time they verified the residency of the Kubbys through records in the assessor's office.By spying on the Kubbys in the middle of the night after trespassing on private property next door, the police violated Steve and Michele Kubby's right to the expectation of privacy, Nick said. "This kind of intrusion is unlawful," he said.Deputy District Attorney Christopher M. Cattran argued that the officer's "belief" that he and the other investigators were on Forest Service land did not constitute a "purposeful misleading of the magistrate."Steve Kubby, 53, a former Libertarian candidate for governor, was a leader in the campaign that led to passage of Proposition 215, the initiative legalizing the medical use of marijuana by ill Californians.He and his wife, Michele, 34, face trial on two counts of conspiracy, possession of marijuana for sale, cultivation, and possession of various other controlled substances and ingestion devices.Both had marijuana use recommendations from doctors at the time of their arrest on Jan. 19, 1999. Published: August 31, 2000Source: Sacramento Bee (CA)Copyright: 2000 The Sacramento BeeContact: opinion sacbee.com Address: P.O.Box 15779Sacramento CA 95852Website: http://www.sacbee.com/Feedback: http://www.sacbee.com/about_us/sacbeemail.htmlForum: http://www.sacbee.com/voices/voices_forum.htmlRelated Articles & Web Site:The Kubby Fileshttp://www.kubby.org/Kubby Smokes Marijuana While Waiting for Courthttp://cannabisnews.com/news/thread6875.shtmlKubby Trial Begins http://cannabisnews.com/news/thread6864.shtmlJudge OKs Poll of Pot Trial Jurors http://cannabisnews.com/news/thread6804.shtmlCannabisNews Search - Kubbyhttp://cannabisnews.com/thcgi/search.pl?K=KubbyCannabisNews Medical Marijuana Archives:http://cannabisnews.com/news/list/medical.shtml END SNIP --> Snipped Home Comment Email Register Recent Comments Help Comment #7 posted by Dan B on September 01, 2000 at 13:43:02 PT: Phillips is a Prohibitionist I should point out the Harold Phillips is not only in favor of continuing drug prohibition, but is in fact in favor of the death penalty for some drug offenses. Here is a quotation regarding drugs from the Constitution Party's web site: "The Constitution Party will uphold the right of states and localities to restrict access to drugs and to enforce such restrictions in appropriate cases with application of the death penalty. We support legislation to stop the flow of illegal drugs into the United States from foreign sources. As a matter of self-defense, retaliatory policies including embargoes, sanctions, and tariffs, should be considered. At the same time, we will take care to prevent violations of the Constitutional and civil rights of American citizens. Searches without probable cause and seizures without due process must be prohibited, and the presumption of innocence must be preserved."With the second statement, they try to mitigate the effects of the first statement, but bear in mind the sinister proposal of the death penalty in the first paragraph. Furthermore, his party is in favor of interdiction efforts that waste taxpayer dollars and have been proven ineffective. Although he claims to be in favor of American liberties as provided under the Constitution, his reading of the Constitution is such that I believe he will bring only more prohibitionist propaganda to these debates.However, I am glad to see that Harry Browne will be there, and I look forward to hearing what he has to say. [ Post Comment ] Comment #6 posted by kaptinemo on September 01, 2000 at 07:45:49 PT: Now that really *is* good news! Because this matter of ethics is especially relevent to the WoSD, for obvious reasons. And Browne and Phillips, though at odds in some regards, could be expected to agree that the major parties have truly f*****d up, creating graft and corruption under the aegis of the WoSD, and say so quite eloquently. This will be the most important debate of all, and not just to us reformers; much of what Browne and Phillips stand for speak directly to the heart of the matter: the overbearing, crushing power of government to destroy liberties we once thought were inviolable. Power assumed by the major parties. Assumed under the false pretense that adults need to be treated like children. Which in large part is the (public) rationale behind the WoSD.Oh, yes, this should be real interesting. [ Post Comment ] Comment #5 posted by FoM on August 31, 2000 at 20:40:06 PT More Good News! Harry Browne Accepts Judicial Watch's Presidential Debate InvitationFor Immediate ReleaseAugust 30, 2000 Judicial Watchhttp://www.judicialwatch.org/Libertarian Joins Democrat Gore, Reform Buchanan, Constitution Phillips, And Expected Others:(Washington, D.C.) Judicial Watch has been orally notified by Presidential Candidate Harry Browne of the Libertarian Party that he will be joining Democratic Party Presidential candidate Albert Gore, Jr., Reform Party Presidential Candidate Patrick J. Buchanan, Constitution Party Presidential Candidate Howard Phillips, and others expected to accept Judicial Watch's invitation to debate the issue: How To Restore Ethics To Government?The debate, which will be held in prime time at 8 p.m. on Friday, October 20, 2000, in the spanking new, state-of-the-art amphitheater of the Ronald Reagan Building, is garnering widespread acclaim. Indeed, just yesterday, Republican Presidential Candidate George W. Bush, who is also expected to accept, reiterated that he is seriously considering debates held by interests other than the Presidential Debate Commission."Given the professed emphasis of the Bush Campaign on ethics, and its criticism of the Clinton-Gore Administration, how would it be if everyone else appeared for Judicial Watch's debate except the Republican Presidential candidate? It is obvious that George W. Bush will, therefore, accept Judicial Watch's invitation, and indeed the public-interest watchdog has been led to believe that this will occur," stated Judicial Watch Chairman and General Counsel Larry Klayman."Judicial Watch is sponsoring this debate as an educational activity, in order that all Americans will understand how the Presidential candidates propose to handle the issue of government ethics and corruption, particularly in Washington," added Judicial Watch President Tom Fitton.Contact: Richard Tomkins - 202-646-5172 Published: August 30, 2000© 2000, Judicial Watch, Inc., ® [ Post Comment ] Comment #4 posted by FoM on August 31, 2000 at 15:39:00 PT Important E-Mail News! MPP's Rob Kampia To Debate Congressman Bob Barr On National TVDear Friend,Tonight I will be debating Congressman Bob Barr (R-Georgia) on National TV:The Edge with Paula ZahnFOX News Channel (nationwide)Air Times:TONIGHT (Thursday, August 31) at 10:00 p.m. ET, 7:00 p.m. PTRepeated at 3:00 a.m. ET, midnight PTPossibly repeated Saturday at 6:00 a.m. ET, 3:00 a.m. PTPossibly repeated Sunday at 3:00 p.m. ET, noon PTMPP will be mailing a videotape of this debate and MPP's other recent national TV coverage to all supporters who donate $250 or more to our efforts.Barr, of course, is the member of Congress who first spearheaded the effort to block the release of the results of Initiative 59, the medical marijuana initiative in Washington, D.C. This occurred in the fall of 1998.Then, in September 1999, a federal court ruled that his amendment was unconstitutional. After the results were released showing that 69% of D.C. voters had actually passed the initiative in November 1998, Barr passed another amendment that overturned the results of the initiative, preventing it from taking effect.To protest Barr's anti-medical marijuana crusade, MPP sponsored a protest in October 1999 -- a group of patients and other protesters took over Congressman Barr's office, chanting "Stop Arresting Patients!" One arrest was made that day.So we will have a lot to talk about tonight ...Sincerely,Rob KampiaMPP Executive DirectorCannabisNews Articles On Bob Barr:http://www.cannabisnews.com/thcgi/search.pl?K=Bob+BarrHOW TO SUPPORT THE MARIJUANA POLICY PROJECTMPP is funded entirely by the contributions of its dues-paying members nationwide. To support MPP's work and receive the quarterly newsletter, "Marijuana Policy Report," please send $25.00 annual membership dues to: Marijuana Policy Project (MPP) P.O. Box 77492 Capitol Hill Washington, D.C. 20013 202-232-0442 FAXBecause MPP devotes 100% of its efforts toward influencing public policy, contributions are not tax-deductible. However, donations to MPP Foundation, MPP's educational branch, are tax-deductible and can be made on-line at: http://www.mpp.org/join-mpp.html Marijuana Policy Project [ Post Comment ] Comment #2 posted by JustusGrown on August 31, 2000 at 14:59:23 PT not a purposeful misleading , we just dumb cops! When the cops from adjacent property conduct a visual search of an area where there is an expectation of privacy, they must obtain a search warrant before the observations occur. Therefore;if someone calls the cops to report dope being grown within a backyard, the cops must get a warrant to search for that dope before peeping over fences lawyers sometimes forget these kind of things, sucessful growers dont. [ Post Comment ] Comment #1 posted by fivepounder on August 31, 2000 at 14:38:29 PT Pray for those guys This could be a way they skip the trial and the resulting media hype. As well as dealing with the real issues. Lets hope the Kubby nightmare is nearly over. [ Post Comment ] Post Comment Name: Optional Password: E-Mail: Subject: Comment: [Please refrain from using profanity in your message] Link URL: Link Title: