Full Circle Cannabis Consultations’ Court Case Analysis of People v Chakos (2007 – Fourth Appellate District) by Jason Browne
“Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess (cannabis) lawfully for their own consumption, as distinct from possessing (it) unlawfully with intent to sell.”
“As to drugs that may be (obtained legally), the officer may have experience with unlawful sales, but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully (obtain) the drugs for their own use as medicine for illness.”
In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officers’ opinion that possession of lawfully (obtained) drugs is for purposes of sale is worthy of little or no weight, and should not constitute substantial evidence sufficient to sustain the conviction.”
“Mere and undefined ‘contact’ with undefined ‘investigations’ is manifestly not substantial evidence that an officer is in any way familiar with the patterns of individuals who, under State law, may lawfully purchase (cannabis) pursuant to a physician’s (authorization) under the C.U.A., nor does it show any expertise in the ability to distinguish lawful from unlawful possession (of cannabis).”
Read entire Court opinion here
Jason Browne’s Analysis
Here, the court found that police testimony evinced a lack of understanding of the patterns of use of (cannabis) by qualified patients, which rendered the police officer unqualified to testify as an expert and required that his testimony be stricken.
Analysis for Attorneys
Basically, police testimony as “experts” in medical cannabis cases should be challenged under Voi-Dire. In order to meet the challenge, it’s important to ascertain the officer’s actual experiences with differentiating between lawful patterns of possession (etc.) from unlawful patterns of holding for (unlawful purposes). If police cannot produce notes or course materials, if their instructors are other law enforcement officers, if they can’t provide any peer-reviewed scientific studies, cannot provide the names of physicians who authorize cannabis uses or patients who use cannabis that they are familiar with, etc…, then you should rightly challenge their status as an “expert”. It’ also helpful to cite either of the official Position Papers on medical cannabis, from the website of the California Narcotics Officers Association (C.N.O.A.), because they provide almost all of the training materials and instructors for law enforcement officers in California, and those Papers clearly show that officers are trained to disbelieve the existence of medical cannabis and are therefore incapable of differentiating the differences between lawful and unlawful uses, so long as they are relying on their training. In terms of challenging their experience, asking questions that reveal the types of experiences they have had should be sufficient (they are invariably the same…a combination of unnamed “patients” who have been arrested and/or imprisoned, jailhouse informants, reading high-times magazine and countless raids or sting operations where the object was to target only unlawful activities. In the end, they will rely on the “totality of circumstances” argument, so if you can pinpoint and challenge all of the individual aspects and get it all into the record, you have laid the groundwork for challenging the totality of circumstances argument.