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Case Challenges Oregon's Medical Marijuana Law
Two men face charges after a 2004 raid in Clackamas County netted 100 plants grown without paperwork
Sarah Hunsberger | The Oregonian | 07/28/2005

OREGON CITY -- Criminal proceedings that began Wednesday will test the limits of Oregon's medical marijuana law.

Clackamas County sheriff's deputies arrested Shawn Flury, 44, and David Thomas Howard, 51, more than a year ago during the raid of an Oregon Green Cross marijuana-growing operation. Both are charged with possession, manufacture and delivery of a controlled substance.

"They don't respect the law. They think it's all criminal activity," Flury said this month of law enforcement officials. He contends the case is an attempt to unravel the state's medical marijuana law.

After hearing several motions, the judge delayed the trial until Sept. 21 to give defense attorneys time to go through a few hundred pages of documents that prosecutors submitted at the last minute.

The Oregon Medical Marijuana Program makes it legal for card-carrying patients with serious medical problems to grow limited amounts of marijuana or designate a caregiver to grow it for them. But the program has been under fire in recent months.

The state temporarily suspended issuing cards in June when the U.S. Supreme Court ruled that federal law enforcement can ignore states' medical marijuana laws, seize plants and make arrests. The program resumed issuing cards after the state attorney general declared that the federal ruling does not invalidate the state program.

More than 10,000 Oregonians have qualified for the cards since the law went into effect six years ago.

Some federal officials have said the state's program is full of loopholes that allow some to take advantage of the program and use it as a cover for recreational marijuana use.

Flury's organization, Oregon Green Cross, said it supplied a free ounce of marijuana twice a month to about 35 patients with debilitating conditions.

Sheriff's deputies said they seized more than 100 plants from the operation because the group lacked the state documentation needed to grow that many plants.

Howard's attorney, Paul Ferder, argued Wednesday that pending paperwork would have allowed a large number of plants. He said the law allows 30 days to file required paperwork.

Defense attorneys also argued in their pretrial motions that the property search was improper.

Ferder and Flury's attorney, Jack Bernstein, said the search warrant that police obtained was based on information from three confidential informants who were not credible. They also said the informants went on the property illegally and committed the crimes of burglary, theft and trespassing to get the information they gave police.

Clackamas County Circuit Judge Ronald Thom ruled that the search warrant was legal and that police had probable cause to search the greenhouse property on South Elliott Prairie Road.

"I'm in sympathy with the people who may need medical marijuana for certain medical conditions," Thom said. "My problem is that when we have an operation of this sort, of this magnitude . . . it defeats the purpose of the (medical marijuana) law."

Oregon Green Cross is now dormant. The organization's patients have found other caregivers or have learned to grow marijuana on their own, said Maria Rosen, former secretary.

Sarah Hunsberger: 503-294-5922; shunsberger@news.oregonian.com

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