Michigan in 2010, Oregon in 2013.  Search warrant demand of ‘medical’ marijuana patient records shows that Federal DEA is far from giving up on Controlled Substances Act enforcement.

This activity should send chills up the spines of the legislators considering joining in the “medical” marijuana fray, as well as the administrators of the health departments who are facilitating drug traffickers.

(Click here for a .pdf of the Federal Petition on Michigan)

The truth is that the conflict between federal and state law, which can’t be resolved except through Congressional action (no matter what Holder says, the Obama administration can’t grant immunity to anybody for violating federal law), is not going away any time soon. Meanwhile, state and local officials should get their heads out of the sand and start acting in the best interests of their residents.

There is no such thing as “routine” in actions by the U.S. Attorneys these days. The feds are not throwing in the towel just yet.

The recent action in Oregon is significant. This was not a subpoena like they talk about in the article. This is a search warrant signed by a Federal Magistrate Judge stating that ‘probable cause exists to believe that records from the Oregon Medical Marijuana Program will contain evidence and instrumentalities of marijuana manufacturing and trafficking and conspiracy to commit marijuana manufacturing and trafficking offenses, (all violations of federal law).

The Oregon Medical Marijuana Program (OMMP) is attempting to downplay this saying that the Health Department routinely hands over records pursuant to a court order. Rather, it is likely that federal agents believed that they wouldn’t get the records they wanted through an informal request – meaning that OMMP would either drag its feet or hold back information, so a search warrant was obtained.

Federal search warrants in this climate suggests that something serious is going on.

The following two articles from Oregon are on the same subject:

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Feds scoop up medical marijuana patient records in Oregon investigation

Despite Oregon’s best efforts to keep medical marijuana patient records private, a federal search warrant forced the state agency to hand over some records, according to recently discovered court records.

The warrant was executed in November of last year against the Oregon Medical Marijuana Program, the state agency that administers the Oregon Medical Marijuana Act, voted into law in 1998.

As part of an investigation into growers in Oregon suspected of dealing on the black market (the PI doesn’t name suspects in investigations unless they have been charged with a crime), a special agent with the Drug Enforcement Administration obtained the warrant to aid in his investigation.

“I know that in order to effectively pursue this investigation,” wrote special agent Michael Gutensohn in his application for the warrant, “I need to investigate each of the patients, growers and caregivers associated with” names discovered in the investigation.

“I have probable cause to believe that records from the Oregon Medical Marijuana Program will contain evidence and instrumentalities of marijuana manufacturing and trafficking and conspiracy to commit marijuana manufacturing and trafficking offenses,” he wrote.

A spokeswoman for the U.S. Attorney’s Office for Oregon confirmed that only records specifically listed in the warrant were seized. However, Gerri Badden said no other records related to the investigation were publicly available and that the investigation may be ongoing. In that case, no other records related to the investigation would be public at this point.

Prosecution and privacy fears

Because marijuana is still illegal on the federal level – and it’s only by letters of understanding that the U.S. Department of Justice has held off taking action against medical marijuana growers, suppliers and buyers – related records can be seen as evidence of wrong doing.

In Oregon, the state has become responsible for administering the medical pot laws and keeping records of patients, suppliers and growers.

No similar agency currently exists in Washington, though as Initiative 502 begins to take shape, the Washington State Liquor Control Board will have recorders of, at least, licensed growers and sellers.

Oregonians were worried enough by the prospect of law enforcement combing through medical marijuana records to set up a firewall.

When asked about the warrant and the records taken, officials with the Oregon Public Health Division, which runs the cannabis program, said the agency “routinely releases records pursuant to a court order.”

However, “it is also true that OMMP does what it can to avoid releasing medical records when it gets a court order if medical records are not needed,” Jonathan Modie, a spokesman for the health division, wrote in an email.

He added the following:

“…the Oregon Medical Marijuana Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession or delivery of a controlled substance. However, the Act does not protect marijuana plants from seizure or individuals from prosecution if the federal government chooses to take action against registered cardholders under the Federal Controlled Substances Act.

“I want to emphasize, though, that unless compelled to do so by a court order, the OMMP does not give out information about patients, caregivers, or growers. Law enforcement personnel may contact the OMMP or access the 24/7 Law Enforcement Data System (LEDS) only to verify a specific name or address of a patient, caregiver or person responsible for a growsite. The OMMP will tell law enforcement staff if the patient, caregiver, grower, or growsite address in question is registered, or if an application is in process. The OMMP will disclose patient information to others only at the specific written request of the patient. The OMMP computer files are secure and paper files are kept locked when not in use.”

Feds versus state laws

Nevertheless, with the federal government still able to pursue all marijuana use, possession, production and sales prosecutions – these kinds of record seizures are one key friction point where state laws and federal laws collide.

In fact, on Wednesday, federal efforts to seize records in Mendocino County, Calif., were officially rebuffed and the county has so far been able to keep the records private.

In October, the U.S. Attorney for Northern California sent a “chilling subpoena” to the county seeking records related to that county’s unique medical marijuana arrangement with growers, reported the East Bay Express newspaper.

The subpoena sought “names and locations of pot gardeners, county bank records, ‘any and all’ legal correspondence, etc. The grand jury subpoena stepped all over medical record privacy laws, and the attorney client privilege, lawyers in the case noted.”

However, county officials there hired a lawyer and fought the subpoena.

The paper reported:

“An agreement has been reached which voids the need for further court action,” Mendocino Supervisor John McCowen wrote on Tuesday. “No personal identifying information will be reported to the U.S. Attorney.”

According to a report out of a closed session of the Mendocino Board of Supervisors April 9:

“County Counsel issued the following statement: ‘The Mendocino County Board of Supervisors and the United States Attorney’s Office for the northern district of California have reached an agreement on the nature and scope of documents to be provided to the Federal Grand Jury, pursuant to the subpoenas of October 23, 2012. The information to be provided will not include personal identifying information involving individuals. This consensus is reflective of the law enforcement needs of the United States Attorney’s Office, as well as reflecting the public policy goals of the Mendocino County Board of Supervisors. The scheduled hearing on April 16, 2013, will not be held in light of this consensus.”

Is this how the black market works?

In his application for a warrant to get the Oregon records, Gutensohn wrote, interestingly:

“I am familiar with narcotics traffickers’ tactics in using the Oregon Medical Marijuana Program to shield their activities in cultivating and selling marijuana. Often narcotics traffickers in Oregon, who are cultivating and selling marijuana for profit register with the Oregon Medical Marijuana Program, and then recruit other individuals to obtain OMMP patient cards listing the narcotics trafficker or an associate as the patient’s marijuana grower or caregiver, enabling the narcotics trafficker to increase the number of marijuana plants permitted under Oregon state law, and to make it more difficult for local law enforcement officers to investigate. I know that the marijuana growers often grow more marijuana than permitted under state law, and that they often illegally sell the “over-production” in other states where the marijuana sells at a better price.”

Here’s the first page of the search warrant showing what the DEA was after (the rest of the warrant lists specific names and addresses among 22 line items detailing the records sought):

The items to be searched for, seized and examined are the premises and/or items described in more detail in Attachment B, that contain evidence and instrumentalities of narcotics manufacturing and trafficking and conspiracy to commit narcotics manufacturing and trafficking offenses, in violation of Title 21, United States Code, Sections 841(a)(l), 846, 952, 960 and 963 and attempts to commit these crimes in in violation of Title 18, United States Code, Section 2. The items to be seized cover the period of April 1, 2011, through November 5, 2012.

Representatives of the Oregon Medical Marijuana Program are ordered not to disclose the existence or contents of the search warrant, except to the extent necessary to carry out the warrant.

1. The items to be searched for, seized and examined include the names, addresses, telephone numbers, birthdates, Oregon Driver’s License numbers or other Government Issued ID number for Patients, Growers and Caregivers in the Oregon Medical Marijuana Program database or files.

2. The items to be searched for, seized and examined includes Oregon Medical Marijuana Applications, Registration Information, including Record Number, Issue Date, Effective Date, Expiration Date and Audit Number, as well as the Denial of Application for Patients, Growers and Caregivers in the Oregon Medical Marijuana Program database or files.

3. The items to be searched for, seized and examined includes identification of persons associated with marijuana manufacture and distribution, evidence of communications between members of the conspiracy, and evidence of the use of apparently legitimate Oregon Medical Marijuana Program participants to disguise profits from drug trafficking.

Jake Ellison can be reached at 206-448-8334 or jakeellison@seattlepi.com. Follow Jake on Twitter attwitter.com/Jake_News. Also, swing by and *LIKE* us on Facebook.

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