California Court of Appeals, First District, Third Division
Pub. Order 7/25/13 (See End of Opn.)
Humboldt County Super. Ct. No. DR090888 Hon. Christopher G. Wilson.
Counsel for Plaintiffs and Appellants: Karen Diane Olson, Roscoe Littlefield, et. al., Donna Bader.
Counsel for Defendant and Respondent: William Forrest Mitchell, County of Humboldt, MITCHELL BRISSO DELANEY & VRIEZE.
Sheriff’s deputies seized and destroyed approximately 1, 500 pounds of marijuana under cultivation in a remote area of Humboldt County (the County). Plaintiffs Roscoe, Sylvia, Richard, Timothy and Jeffery Littlefield, each of whom has a written physician’s recommendation for up to two ounces of marijuana per day, sued the County for conversion and violation of their constitutional and statutory rights to be free from unreasonable search and seizure and deprivation of property without due process. On cross-motions for summary judgment, the trial court found the deputies had probable cause for the seizure, that the County lawfully destroyed the cannabis, and that plaintiffs failed to proffer admissible evidence that their possession was lawful. It accordingly granted the County’s motion and denied plaintiffs’ motion. We agree, and affirm.
The facts are largely undisputed. Humboldt County Sheriff’s deputies, assisted by CAMP (Campaign Against Marijuana Planting) agents, conducted open field marijuana eradication operations in a remote area of Humboldt County. Following aerial surveillance, deputies and CAMP agents entered a garden that contained 118 marijuana plants ranging from three to eight feet tall with an average diameter of six to seven feet. The flowering plants were heavily laden with buds. A loaded rifle with an attached 50 round “banana clip” was found in a small tent inside the garden.
Four medical marijuana recommendations written by Dr. Norman Bensky, for Sylvia Littlefield, Timothy Littlefield, Roscoe Littlefield, and Jeffrey Libertini, were posted on the front gate and inside the garden. The recommendations for Sylvia, Timothy and Roscoe Littlefield indicated the use of up to two ounces of cannabis per day, the equivalent of 45.6 pounds per year. The recommendation for Libertini was not issued by Dr. Bensky, and did not identify a dose or the ailment or symptoms to be treated with cannabis. Sylvia’s recommendation specified it was for degenerative joint disease and glaucoma, Roscoe’s specified degenerative joint disease and low back pain, and Timothy’s specified low back pain and anxiety.
A well-worn footpath led from the site to a second plot on the Littlefield property, where deputies located an additional 96 flowering marijuana plants from three to eight feet tall and averaging four to six feet wide. Medical marijuana recommendations for Richard Littlefield and Summer Brown, each of which indicated up to two ounces daily for degenerative joint disease and low back pain, were posted in this garden. Deputies observed a number of other marijuana plots on the Littlefield property, but left them undisturbed.
Timothy Littlefield arrived during the search and told Deputy Fulton that the medical recommendations allowed each of the posted users to possess 45.6 pounds of marijuana per year. Deputy Fulton provided this information by radio to Sergeant Wayne Hanson, who responded that he believed the recommendations were invalid and the marijuana should be seized.
Hanson determined that the aggregated canopies of both gardens clearly exceeded the 100 square foot canopy per person limitation determined to be reasonable under County guidelines for medical marijuana prosecutions. The total canopy of the two gardens was approximately 5, 862 square feet, or 977 square feet of canopy per person, nearly 10 times more than the 100 square foot canopy considered reasonable under the guidelines. The combined weight of the marijuana in both fields was approximately 1, 508 pounds.
Officers removed a 10-pound bulk cannabis sample and five subsamples. The remaining cannabis was removed from the two plots and destroyed pursuant to Health and Safety Code section 11479. Deputy Cyrus Silva executed an affidavit on information and belief that the destruction complied with section 11479. It states: “The Sheriff of Humboldt County has determined that it is not reasonably possible to preserve the marijuana in place or at another location. This determination was based on the fact that Humboldt County does not have adequate storage facilities, or sufficient personnel to guard the marijuana. In addition, recently harvested marijuana gives off great volumes of heat and may erupt into fire. [¶] On 9:30, 2008, all of the marijuana [in] excess of ten pounds was destroyed. The remaining marijuana is retained by the Humboldt County Sheriff’s Office at Eureka, California.”
No arrests or criminal charges resulted from the raid, but the Littlefields sued the County for damages for, among other things, the replacement value of the confiscated cannabis, physical and mental suffering, emotional distress, and medical expenses. Plaintiffs estimate its replacement value between $683, 724 and $1, 367, 448.
Plaintiffs and the County filed cross-motions for summary judgment. Following briefing and argument, the trial court issued an 12-page ruling granting the County’s motion and denying appellants’. The court identified the critical question as “whether the officers engaged in the marijuana eradication operation possessed, at the time the marijuana here was seized, ‘facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” The probable cause inquiry, the court observed, “must include the officer’s consideration of the individual’s status as a qualified medical marijuana patient.” The court concluded that, despite the posted medical marijuana recommendations, “[t]he amounts possessed were of such a quantity to lead a person of ordinary caution or prudence to believe, and conscientiously entertain a ...