Monday, January 26, 2004
The U.S. Attorney's Office has asked a federal judge to dismiss contempt citations against six federal agents who seized marijuana from a Hayden man with a medicinal marijuana permit.
In a simultaneous action, the U.S. Attorney's Office removed the case from the state court, taking the case -- for the most part -- out of the hands of Routt County Judge James Garrecht.
Garrecht issued the contempt citations Jan. 6. The U.S. Attorney's Office took its action Friday.
Nine officers were involved in the Oct. 14 search, which has highlighted a conflict between a voter-approved state rule allowing medicinal marijuana and federal laws that do not allow anyone to use marijuana.
The motion from the U.S. attorney asks the federal court to dismiss contempt citations for six officers who participated in the search, in which marijuana and growing equipment was taken from medical marijuana user Don Nord.
One officer is a special agent for the U.S. Drug Enforcement Administration, and the other five are deputized officers of the DEA through the Grand, Routt and Moffat Narcotics Enforcement Team.
The other three officers are Hayden police officers and so are not federal officers. Those officers are scheduled to appear in county court before Garrecht on Feb. 2 to show why they should not be punished for contempt.
Cases are removed to federal court "when there is a federal question and the government feels it necessary to intervene," said Jeff Dorschner, spokesman for the U.S. Attorney's Office.
The motion to dismiss the contempt charges said that the six officers should not be held in contempt of court because of the supremacy of federal law, which considers marijuana a controlled substance that is illegal contraband.
Colorado cannot, the motion said, allow someone to possess marijuana, because it pre-empts federal laws.
The motion later read, "From a federal law standpoint, all actions taken by (the officers) were lawful and, indeed, furthered Congress's mandate to keep drugs off the street."
The U.S. Attorney's Office offered to represent the Hayden police officers, said Hayden Police Chief Jody Lenahan, but the Hayden officers had to go through their insurance company first to determine whom their lawyers should be. Late last week, the insurance company said it would handle the case only if a lawsuit were involved.
The Hayden officers are to appear in court Monday and will be represented by Hayden town attorney Michael Holloran.
Dorschner said the U.S. Attorney's Office has been in limited contact with the Hayden officers, and that though the U.S. attorney is not legally representing them, the office believes the arguments for why the federal officers should not be held in contempt applies to the Hayden officers as well.
The U.S. Attorney Office's request to dismiss the contempt citations will be heard by U.S. District Court Judge Walker Miller. Miller has several options, including holding a hearing for oral arguments, asking for Nord's attorney to file a response or simply giving a ruling.
Attorney Kristopher Hammond, who represents Nord, said he and his client are considering their options. Traveling to Denver for hearings could be prohibitively expensive, Hammond said.
The DEA agent involved in the case is Doug Cortinovis. The GRAMNET officers involved are: Dan Kelliher of the Routt County Sheriff's Office, Dwight Murphy of the Steamboat Springs Police Department, Mike Lovin of the Grand County Sheriff's Office, Jenny Hoefner of the Craig Police Department and Todd Reece of the Moffat County Sheriff's Office.
Hayden officers who received contempt citations are Lenahan, Ed Corriveau and Darin Falk.