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Charges Dropped In Medical Marijuana Case
Dennis Webb | Aspen Times | 11/24/2005

Charges against a second defendant in a medical marijuana case have been dismissed because police destroyed pot plants that could have been used as evidence.

District Attorney Colleen Truden's office dropped charges Tuesday against Gene Brownlee after Judge Dan Petre upheld a defense motion to suppress evidence in connection with the disposition of the plants, saying cuttings and photographs of the plant are insufficient evidence.

Petre's ruling is similar to one in May by Judge James Boyd that resulted in the dismissal of charges against Brownlee's ex-wife, Jennifer Ryan. It also raises doubts about the prosecution's case against a third defendant, Justin Brownlee, who is Gene's nephew.

"Each case is different. Each case has its own facts and law and stuff that applies," said Assistant District Attorney Vince Felletter.

However, because the Brownlees are codefendants, prosecutors will be considering Petre's ruling as they go forward, Felletter said. Justin Brownlee appeared in court briefly Nov. 10, and his next court appearance was delayed until Jan. 12, pending the outcome of his uncle's trial. That trial was to have been held next week.

Felletter said the district attorney's office had little choice but to drop the charges against Gene Brownlee after Petre's ruling. He said prosecutors were left with too little evidence to prove guilt beyond a reasonable doubt.

The cases arose from an investigation in 2004 by the Two Rivers Drug Enforcement Team, or TRIDENT. It reportedly confiscated 130 marijuana plants from Ryan and Brownlee's apartment.

Ryan, Gene and Justin Brownlee and Drew Gillespie were charged with various counts of possession of marijuana with intent to distribute. Gillespie pleaded guilty last December to conspiracy to sell/distribute; he received a deferred sentence and was ordered to do 75 hours of public service.

Ryan said she was certified to grow and administer marijuana for medical purposes. Gene Brownlee said he was using the drug to treat his cancer.

TRIDENT disposed of most of the pot plants, relying largely on photos and videotape of them and leaf cuttings. Colorado's medical marijuana state amendment requires that plants taken as evidence must be kept alive.

Petre concluded that the number of plants taken into evidence could have had a bearing on whether the pot-growing operation was small-scale, in keeping with the medical marijuana amendment, or commercial, nonmedical and illegal. Gene Brownlee is entitled to verify the amount of plants confiscated, and that the number claimed by authorities wasn't inflated by means such as photographing the same plant more than once, the judge found.

"In examining the good faith of the officers, the court does not ascribe any malevolent intent to their decision to destroy the plants," Petre added.

However, he also noted that a TRIDENT commander, contacted by officers, failed to suspend the plant's destruction when Ryan claimed she was legally entitled to grow them under state law.

"That the commander, who was in radio contact with the officers at the site of the seizure, did not suspend the destruction of the plants pending a further investigation of her assertions undermines any claim that TRIDENT's actions were an innocent mistake arising out of ignorance of this particular law," Petre wrote.

Garfield County Sheriff Lou Vallario, TRIDENT's chairman, has said the agency was not aware of the law's requirement to preserve confiscated plants, "though admittedly we should have been." He also has criticized the medical marijuana law, saying it basically requires law enforcement to cultivate marijuana.

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