Salem police arrested Henry Guist after a SWAT raid located stolen property and a medical marijuana grow. KATU reports that “Guist is an Oregon Medical Marijuana Program card holder but police said he was operating well outside the program restrictions.”
According to KATU, leading up to the arrest, Guist’s house was “the subject of several drug house complaints from the community and when officers asked to inspect his medical marijuana grow operation, the man was uncooperative.” By "uncooperative," they mean that he invoked his civil rights to be free from unreasonable search and seizure when the police thought that they could just come in and look around with no probable cause.
KATU continues:
Guist was also a suspect in several stolen property cases and police got a search warrant so they could find out what was going on inside the man's home. During the search of the home, officers found:
- A shotgun reported stolen from the Monmouth area
- A handgun reported stolen from Salem
- Tools reported stolen during a burglary in Salem
- 19 computers that had been stolen from the Salem-Keizer School District
- An elaborate marijuana growing operation with 80 mature plants and 50 immature plants
- Two ounces of dried marijuana
- Drug packaging materials
- Scales
Police often point to these cases to illustrate that the Oregon Medical Marijuana Program has “excessive abuses.” However, if this man is growing for multiple patients, the only thing indicated by the above seized evidence is that the 12-inch rule for determining plant maturity can turn a legal grower into a felon nearly overnight. ** (see note at end of article)
Guist's listing in the inmate roster for Marion County lists multiple charges:
GUIST, HENRY
GUIST, HENRY SID: 15859044 LODGED
Lodged: 02/28/2011 20:53 Max: DoB: 08/20/1976
Arrest: SMP Type: PROBABL Docket: 11C41701 Hold Auth: MARION
Charge Bail Status Next Court Release
1 DEL SCHOOL 100000 PRETRIA03/10/2011 08:30 CIRCUI
2 MAN MARIJ CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
3 SELL MARIJ CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
4 POS MARIJ CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
5 THEFT I CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
6 THEFT I CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
7 UN USE VEH CO BAIL PRETRIA03/10/2011 08:30 CIRCUI
What is overshadowed by the propaganda of medical marijuana is that multiple stolen items were recovered at this location. THAT was the story that should have been told. A more appropriate, less sensational, headline might have read: “Search recovers 19 computers stolen from Salem-Keizer School District” for instance.
Instead, the story highlights one of the problems that many legitimate patients face: Law enforcement does not respect the law that requires that they use the Oregon Medical Marijuana Program database information for verification purposes only. This information is not subject to public disclosure, according to the Oregon Medical Marijuana Act (OMMA) passed by voters in 1998 (emphasis added):
(3) Authorized employees of state or local law enforcement agencies that obtain identifying information from the list as authorized under this section may not release or use the information for any purpose other than verification that a person is a lawful possessor of a registry identification card or the designated primary caregiver of a lawful possessor of a registry identification card or that a location is an authorized marijuana grow site.
Other headlines from the story as they appeared in multiple media sources:
KATU:
Police bust medical marijuana grower
MSNBC:
Salem medical pot grower arrested for theft, dealing
Salem Police Dept.:
Multi-Agency Investigation Leads To Marijuana and Stolen Property Arrests
This area of law is a continuing source of controversy within Oregon – using Washington County as the example to illustrate the ongoing violation of the OMMA by law enforcement:
2008: Washington County Sheriff’s spokesman Dave Thompson justifies why they are “going against what the state advises” and releasing the confidential information contrary to the law:
With narcotics sales, or even when growers tell others about their operations, armed take-over robberies and serious assaults inevitably occur, Thompson said.
While these crimes occur in the county and throughout Oregon, the public is unlikely to know about crime trends because Oregon law says law enforcement cannot release or use OMMP participant information except to verify the person has a valid card, Thompson said.
“At this point, we are going against what the state advises,”Thompson said. “This law was designed to help sick people. But when they go out of compliance, or use the law to buy and sell marijuana, that’s not OK.”
2010: Washington County continues to release confidential information regarding OMMP cardholders, both suspects and victims of crime, and Oregon NORML issues a letter to desist:
While it might be true that those involved in the aforementioned releases were accused of criminal activity involving marijuana, this should not negate their right to confidentiality under the OMMA. Even if they were found guilty of marijuana-related crimes, the protection afforded by the OMMA is neither suspended nor does it grant allowances for release of patient information by law enforcement for the prosecution of a crime. Indeed, their status as an OMMP cardholder is irrelevant in the prosecution of a crime if they are in violation of the program. If they are found guilty of a marijuana-related charge, there are sanctions under the OMMP in addition to any criminal penalties.
Ultimately, we are writing to request that your office revisit the issue of patient confidentiality concerns with all law enforcement staff, and return to your stated policy of not releasing protected confidential information to the public. Further, we request that your office, in conjunction with DHS, provide the public with the statistics of the number of sanctions that have been levied so that the public can “understand the challenges faced by narcotics investigators.” The statistics alone should be sufficient to demonstrate the “increasing number of illegal marijuana grows associated with the Oregon Medical Marijuana Program (OMMP).”[vi]
The public and the OMMP patients do have a right to know the extent of the abuse of the Oregon Medical Marijuana Program so that we can all work together to resolve the issues surrounding the illicit trafficking of marijuana. However, patients should not stand for their right to patient confidentiality being violated, regardless of whether or not they have committed a crime. The criminal record and OMMP status are only relevant to the two authorized agencies – law enforcement and DHS. Please desist from further violation of such confidential information.
2008-2011: Washington County Sheriff Rob Gordon is also involved in a court case after denying Concealed Handgun Licenses to lawful Oregon Medical Marijuana Program patients. Oral argument in the Oregon Supreme Court was heard today. Gordon argues that he can refuse to issue a Concealed Handgun License to medical marijuana cardholders because federal law "trumps" state law. Another similar case, Held v Hanlin, addresses the unlawfully “fishing” in the Oregon Medical Marijuana Program (OMMP) database to determine if those applying for a Concealed Handgun License were medical marijuana cardholders, an activity that is not allowed under the current statute and confirmed by the Court of Appeals in December 2010 (emphasis added):
In this case, respondent did not access the database merely to determine whether petitioner was a lawful medical marijuana cardholder or a designated primary caregiver. Respondent testified that his office checks the database for every CHL applicant "[t]o determine whether or not they use [a] controlled substance, specifically marijuana." Respondent's use of the database for that purpose was not authorized by ORS 475.331.
2011: A bill to change that has been introduced to the Oregon Legislature, and a hearing will be held on March 10, 2011 at the Capitol in Salem at 1:00 PM in Room 343. The bill, HB 3129, will allow law enforcement to access the OMMP database for any reason without regard for patient privacy. It will also require that the OMMP database provide the number of cardholders the person is designated as caregiver for, the number of cardholders for whom a person is a grower for, and the number of persons responsible for a growsite at any given address. Further, the bill eliminates the clause that prevents law enforcement from using this information as propaganda (although clearly the law hasn’t stopped them so far) by allowing law enforcement to use the information “only for the purposes for which it was obtained”, a vague clause that doesn’t really assure any confidentiality for patients.
** Under Oregon law, a cardholder is allowed to have 6 mature plants and 18 seedlings or starts:
ORS 475.306 3) The Oregon Health Authority shall define by rule when a marijuana plant is mature and when it is immature. The rule shall provide that a plant that has no flowers and that is less than 12 inches in height and less than 12 inches in diameter is a seedling or a start and is not a mature plant.
A seedling or start grows rapidly, quickly exceeding the 12 inch rule. Patients are expected to keep those 18 seedlings or starts below the 12 inch arbitrary line while they wait for their mature plants to be ready for harvest. While a mature plant will require anywhere from 8-12 weeks to finish flowering after the light has been changed to a flowering cycle of 12 hours light/12 hours dark, a seedling could easily grow 24-36 inches during those 8-12 weeks.
Many patients are forced to continue to cut their plants down to 12 inches repeatedly while they wait for the mature plants to finish, or they must take additional clones to turn one plant into more seedlings. Many patients will take those many clones and distribute them at the various patient resource centers around the state; this allows new patients to have access to plants – since they cannot buy the seeds or plants anywhere legally in Oregon.
Most patients feel that the 12-inch rule is counterproductive and turns otherwise legal patients into felons nearly overnight. While advocates have sought to have plant limits determined based on horticultural reasons, the 12-inch rules continues to remain law. Many of those that have been arrested for “operating well outside the program restrictions” have simply had plants that exceeded the 12-inch limit in an otherwise legal grow.
These arrests are then used to demonstrate the “excessive abuses” in the medical marijuana program. Ultimately, more often than not, it boils down to legal harassment against medical marijuana patients using technicalities – not excessive abuses. While disturbing that law enforcement would harass the disabled and sick on technicalities, it is even more disturbing that law enforcement would violate the law just to make a point – as in the above story, releasing confidential information that is protected by the law.
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