In a case called “People vs. Christopher James Chakos,” published Dec. 21 -the beginning of the end of darkness- the Fourth District Court of Appeal ruled that a narcotics officer had no expertise enabling him to distinguish between marijuana possessed legally and illegally. The opinion by Justice David G. Sills, in which Justices Richard Aronson and Richard Fybel concurred, is written in a tone of restrained disgust.
Back in December, 2004, Chakos, a phlebotomist in his late twenties, was stopped while driving home from the lab where he worked in Santa Margarita. He permitted Orange County Deputy Sheriff Christopher Cormier to search his car. In Chakos’s backpack Cormier found seven grams of marijuana, a letter from Robert Sullivan, MD, confirming that Chakos used cannabis for medical purposes, and $781 in cash. There followed a search of the apartment that Chakos shared with his mother and half-brother, and which had a videocamera trained on the front door. Chakos led Cormier to his bedroom closet, where he kept a glass jar with 25 grams of marijuana, ziplock bags with 90 and 42 grams respectively, a digital scale, and 99 baggies.
The Orange County District Attorney charged Chakos with possession for sale. Chakos was convicted by a jury solely on the testimony of Deputy Cormier, who appeared both as a percipient witness (to Chakos possessing marijuana) and as an expert (who could deduce from “the totality of the circumstances” that Chakos was dealing).
Chakos was sentenced to three years probation. He appealed. Superior Court Judge Patrick Marion ruled that Chakos’s conviction had been lawful. An appeal to the Fourth District was then made on Chakos’s behalf by attorney Kristin A. Erickson. The prosecution was defended by the state Attorney General’s office. The key precedent was a 1971 case called People v. Hunt, which involved a man who had a prescription for methedrine but was convicted of illegal possession for sale nonetheless. The California Supreme Court ultimately ruled for Hunt on the grounds that the narcotics officer who testified against him “did not have sufficient expertise with the lawful use of the drug.”
The Chakos case was precisely analogous to Hunt, according to the Fourth District judges, who found no evidence in the record that Deputy Cormier “had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell.” Cormier’s alleged expertise was based on “680 hours of ‘general’ training at the academy and 270 hours of ‘narcotics’ training which included ‘packaging, different types of drug identifications, growing marijuana, selling marijuana’ and ‘packaging marijuana.’ He had been in the county sheriff’s narcotics unit for six years. He had assisted more than a hundred ‘investigations for possession of [sic] sale of narcotics.’ He had spoken to people who sell narcotics and to people who buy narcotics, including the amounts bought, sold and used. He had seen marijuana before, and could tell the plant just by looking at it, as well as knowing the plant’s ‘unique odor.’ He had seized ‘indoor grows’ between one small plant and 150 plants.”
Versions of this narcotics’ officer’s resume get recited at every drug-related trial in California and beyond. One hears occasional reference to training seminars held in Las Vegas, Honolulu, and other venues where, one assumes, the intense coursework can be interlarded with a bit of R&R.
Justice Sills’ ruling accuses the state attorney general of “misreading” the Hunt precedent. The AG had tried to distinguish the methedrine in Hunt from the marijuana in Chakos because Hunt had a prescription. “The Attorney General relies on a distinction without a difference,” wrote Justice Sills. “Hunt was decided under state law, and the case involved a prosecution under state laws that forbid possessing certain drugs for sale, specifically sections 11911 and 11910 of California’s Health and Safety Code.
“Hunt’s rationale depended on the possibility of lawful use under state law and therefore the need of an officer-expert to be able to distinguish patterns of lawful from otherwise unlawful use. The fact that the Compassionate Use Act may allow lawful possession under state law pursuant to a physician’s ‘recommendation,’ as distinct from a formal ‘prescription, has nothing to do with what the Hunt case said about expert witnesses, since, in 2007, regardless of whether marijuana is possessed pursuant to a ‘prescription’ or pursuant to a ‘recommendation,’ it can be possessed lawfully under state law the same as the defendant in Hunt could lawfully possess his methedrine under state law.”
Under cross examination Deputy Cormier had said “I don’t think I’ve actually arrested anybody with” a doctor’s approval to use marijuana. “I’ve had contact with investigations, but for me to personally arrest somebody with one, I think this might be the first one.”
Justice Sills wrote: “Mere and undefined ‘contact’ with undefined ‘investigations’ is manifestly not substantial evidence that an officer is in any way familiar with the patterns of individuals who, under state law, may lawfully purchase marijuana pursuant to a physician’s certificate under the Compassionate Use Act, nor does it show any expertise in the ability to distinguish lawful from unlawful possession.
“Indeed, Cormier’s lack of expertise in distinguishing lawful from unlawful possession is revealed in some of his own testimony. He laid great stress on the fact that about a quarter ounce of marijuana was found in Chakos’ backpack when he was arrested. And, of course, intuitively, such a precise amount would seem consistent with drug dealing… But what are we to make of Cormier’s percipient testimony that Chakos was found to have irregular amounts found in his closet? Taking Deputy Cormier’s own testimony at face value, a reasonable trier of fact might infer that the irregular amounts of marijuana were inconsistent with dealing and were consistent with lawful use under the Compassionate Use Act.”
Justice Sills also noted that possession of a scale does not a dealer make. “Anyone with the lawful right to possess marijuana will need to take precautions not to insure that he or she does not get ‘ripped off’ by a dealer, but that he or she does not possess more than the eight ounces contemplated by the Act. Practical difficulties of obtaining the drug also explain why a patient entitled to possess it under state law might want to keep an extra supply on hand within the legal amount, since supplies would not be reliable.
“The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale. In other words, Cormier was unqualified to render an expert opinion in this case. Under Hunt, that means there was insufficient evidence to sustain the conviction.
“The judgment is reversed.”
Dr. Sullivan Comments
Robert Sullivan, MD, was called to testify for the defense when People v. Christopher James Chakos was tried on Jan. 11, 2006, in Orange County Superior Court. Sullivan confirmed that he had authorized Chakos’s use of cannabis, and estimated the appropriate dosage to be 1/8 to 1/4 ounce per week.
About the appellate court ruling, Sullivan commented: “Good for Chris! Good for him for seeing it through. I feel heartened by the rationality of these judges. Too many of our patients get harassed, and this seems like a decision their lawyers can put to good use.”
Inappropriate prosecution of medical cannabis users affects doctors as well as their patients. “We spend a lot of time writing letters confirming that our patients are legitimate,” Sullivan says. He has been called to testify five to eight times a year, and so has his partner, Philip Denney, MD.
“It’s not as simple as it sounds,” Sullivan notes. We have to cancel our patients for the day, travel to the courtroom, and very often we find out that the trial has been delayed for one reason or another.”
Sullivan expects that the Chakos ruling will compel law enforcement agencies in California to provide training that satisfies the Fourth District’s standard of expertise. “Who gives the training and what it consists of will be important,” he says.
To date the California Narcotics Officers Association informs its members that marijuana has no medical uses whatsoever. Training in what doctors and scientists have learned -and what the state Health & Safety code says- can only make the situation better for all concerned.
FRED GARDNER edits O’Shaughnessy’s, the Journal of Cannabis in Clinical Practice. He can be reached at firstname.lastname@example.org