Attorney: Value at ‘several hundred thousand dollars’

A Gasquet man will have the chance to receive the cash value of his marijuana plants that were destroyed by authorities after a search warrant was served three years ago on a Crescent City home he owned.

According to his attorney, Jon Alexander, that value is “several hundred thousand dollars.”

Judge Philip Schafer ruled Friday that a 2009 civil suit against Del Norte County asking for the cash value of the marijuana plants that were destroyed can proceed, with the value of the marijuana plants converted to cash value.

The judge also agreed that the suit can go forward with the allegation that the Del Norte County Sheriff’s Office violated the due process of law.

The marijuana cultivation charges stemming from a 2007 search warrant were dismissed in 2008, but the 93 plants that had been confiscated had been destroyed.

“This is where they really failed,” said Schafer in Del Norte County Superior Court on Friday. He was referring to the Sheriff’s Office and the marijuana being destroyed before charges were dismissed.

“I think the City of Garden Grove was dispositive of that,” said Schafer, citing the 2007 case of the City of Garden Grove versus Felix Kha, in which it was determined that Garden Grove had to give Kha back his marijuana after charges were dismissed against him in a 2005 case.

Kha had a valid medical marijuana license, which was why the charges were dropped. So did Kirk David Stewart, 47, who filed suit against the county Jan. 2, 2009, with attorney Jon Alexander, claiming it was the responsibility of the county to pay back the cash value of the destroyed plants.

Stewart, a medical marijuana caregiver, had a valid medical marijuana caregiver license at the time of the search warrant, according to court documents.

According to Alexander, Stewart is still a medical marijuana caregiver.

The search warrant had been served on a Crescent City home on Union Street that Stewart owned in January of 2007.

Schafer threw out other aspects of the lawsuit, including a request that the court rule that authorities could no longer be allowed to investigate his residence, that the search and seizure be deemed unreasonable and that the court find that Stewart’s civil rights had been violated.

Alexander said he has 30 days to refile the suit with the allegations the judge approved.

In April 2008, all charges in the case had been dismissed, because Stewart was found to be in compliance with the Compassionate Use Act of 1996, according to the suit.

All the growing equipment had been returned by May 2008, but a scrawled note on the evidence sheet stated the marijuana had been destroyed, according to the suit.

Although no cash amount was set forth in the lawsuit, Alexander valued the plants at “several hundred thousand dollars.”

Attorney William Mitchell represented the county during Friday’s civil hearing and said that authorities “were operating under the search warrant, so immunity applies.”

Mitchell was arguing that the county was immune to returning the cash value of the plants because it was evidence confiscated during a search warrant.

The judge disagreed, saying regardless of the search warrant, legal property must be returned if the case is dismissed.

Stewart still faces separate charges of marijuana cultivation and sales, possession of marijuana for sale and being a felon in possession of a firearm, according to Del Norte County District Attorney Mike Riese.

The charges stem from a joint federal Drug Enforcement Agency and Sheriff’s Office search warrant served in April 2008 at Stewart’s trailer in Gasquet.

The Sheriff’s Office reported that Stewart and Fred Otremba, then 48, were trimming marijuana when they arrived.

Otremba is currently charged with being a felon in possession of a firearm.

One-hundred pounds of marijuana were confiscated, along with 22 firearms and 84 plants, according to the Sheriff’s Office.

Riese said the DEA did not file charges, so he filed charges “because it happened in my county, I wanted them to face judgment here.”

The case was set for trial earlier this year, but a mistrial was declared due to there not being enough jurors, Riese said Friday.