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. . . a weekly service for the media on news items related to marijuana prohibition.

November 20, 1997

Key West Cannabis Buyers' Club Founder To Appear In Court
Will Present First Ever "Medical Necessity Distribution Defense"

        November 20, 1997, Key West, FL:   The founder of a Key West club that distributed medical marijuana to seriously ill patients who possessed a physician's recommendation will appear in court on December 8 to face felony marijuana charges.
        Zvi Baranoff, who ran the approximately 60 member club until August 1996, remains hopeful that a jury will acquit the charges against him.  Legal analysts speculate that the verdict may have national significance.
        Baranoff says he will raise a "defense of medical necessity" against the marijuana distribution charges.  Last September, Judge Richard Payne ruled that Baranoff could legally raise the unique defense.
        "The rational for the marijuana medical necessity distribution defense is this: If a person has a medical necessity for marijuana, then he has a right to use it and a right to buy it -- and therefore, there should be a right for someone to coordinate access," Baranoff explained.  He noted that his attorney, NORML Legal Committee Member Norm Kent, won a 1988 legal victory which affirmed a glaucoma patient's right to use marijuana as a medicine.
        The Key West club, known locally as the Medical Cannabis Advocates of Key West (MCA), operated publicly for 14 months before being raided by law enforcement on August 14, 1996.  Both Baranoff and club member Jamie Levario were charged with second-degree felony possession and distribution of marijuana.  In a February 19 court ruling, Judge Payne dismissed charges against both men contingent upon Baranoff's participation in a Pre-Trial Intervention Program.  When Department of Corrections officials refused to allow Baranoff to complete the program, prosecutors revived the charges against him.  No charges were reinstituted against Levario.
        "If I'm guilty, let them put me in jail," Baranoff told reporters in March.  "If I'm not, and I believe that I'm not, let's get this thing over with."
        For more information, please contact either the Medical Cannabis Advocates @ (305) 293-0190 or Attorney Norm Kent @ (954) 763-1900.

California County Okays Going Ahead With Plan To Distribute Medical Marijuana In
Government-Run Facilities

        November 20, 1997, San Mateo, CA:   San Mateo County supervisors unanimously agreed Tuesday to propose regulations to distribute medical marijuana through government-run facilities.
        The proposal, first raised by Supervisor Mike Nevin, enjoys the apparent backing of Attorney General Dan Lungren who called the approach "enlightened" and assigned a staff attorney to work on the proposal.  Nevin said that the establishment of a public medical marijuana dispensary would most likely require special state legislation, and approached Sen. John Vasconcellos (D-Santa Clara) about introducing such language in the 1998 Legislature.  Nevin stated that he expects the proposal to be ready by early next year.
        "I'm trying to find a compassionate way of getting this drug, that is now legal [in California], to the sick and dying people who need it," Nevin explained.
        Local sheriff Don Horsely said he wholeheartedly supported the idea of county-run dispensaries.  "I believe that [this] is the most humane approach that I can think of to help the terminally ill, and people with AIDS and glaucoma," he said.
        Supervisors also agreed to develop guidelines for issuing identity cards to qualified patients, and extended a county-wide ban on cannabis buyers' clubs.  Dr. Dennis Augustine, who heads the a buyers club in nearby Santa Clara, criticized the embargo on private clubs and called efforts to establish county-run dispensaries unnecessary.
         "Why not provide our center as a pilot project?" he suggested to county officials.  "We're doing an excellent job [distributing medical marijuana to those who need it] already."
        The notion of distributing medical marijuana through government-run facilities is not entirely new nor unique to California.   During the late 1970s and early 1980s, many states -- including California -- established pilot programs where federally grown marijuana was distributed to state-approved patients.  Recent attempts in Massachusetts and Washington state to revive these programs have been delayed indefinitely while awaiting federal cooperation.
        San Mateo supervisors suggested distributing marijuana that had been previously confiscated by law enforcement rather than relying on government grown strains.
        For more information, please contact either Dale Gieringer of California NORML @ (415) 563-5858 or Allen St Pierre of The NORML Foundation @ (202) 483-8751.  A report outlining the history of state-run medical marijuana research programs is available from The NORML Foundation upon request.

Ohio Supreme Court Strikes Down Auto Search Despite Driver's Consent

        November 20, 1997, Columbus, OH:   The Ohio Supreme Court recently reaffirmed limits on the admissibility of evidence seized during common vehicular searches.  In a November 12 ruling, the Court found that consent cannot be presumed voluntary merely because it is given without overt coercion.
        Writing for the Court, Justice Evelyn Lundberg Stratton stated that voluntariness must be determined under the totality of circumstances surrounding the incident and must be decided on a case by case basis.  Stratton cited the U.S. Supreme Court decision in Florida v. Royer which determined that "[T]he State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority."
        Defendant Robert D. Robinette was cited for speeding in 1995 and given a verbal warning.  Officer Roger Newsome then asked Robinette if he had contraband.  When Robinette replied, "No," the officer requested permission to search Robinette's car.  Robinette testified that he did not feel he could refuse the officer's request, so he agreed to the search.  The officer found a small amount of marijuana and one methamphetamine pill and Robinette was subsequently charged with a drug offense.
        The Ohio high court declared that any reasonable person in Robinette's position would have felt compelled to submit to the police officer's request.  Hence, Robinette's consent grew out of implied coercion and was not truly voluntary.  The court held that pursuant to the totality of circumstances, Robinette did not voluntarily consent to the search and evidence collected in that search cannot be used against him.
        The court noted that the government can bolster its proof of consent by demonstrating that police officers clearly and unambiguously tell drivers when they are free to go and that they do not have to consent to a search.   However, the Court stopped short of requiring police to make such statements.   Even if an officer makes such a statement, the totality of circumstances must still be evaluated to determine that consent is voluntary.
        Justice Lundberg Stratton concluded her opinion by acknowledging that the Ohio Supreme Court is "very mindful that police officers face the enormous and difficult task of fighting crime....  But allowing police officers to do their jobs must be balanced against an individual's right to be free from unreasonable searches.  At some point, individual rights must prevail.  This is just such a case.
        The case is cited as Ohio v. Robinette.
        For more information, please contact Attorney Tanya Kangas of The NORML Foundation @ (202) 483-8751.



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