Motion to Sue Federal Government.  First hearing set for Nov. 4th 2002

Some related news stories:

Santa Cruz Marijuana Farmer Sue Federal Government - San Jose Mercury News

Wo/Men’s Seeks Return of Pot - Santa Cruz Sentinel

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Here is the complete motion filed:

GERALD F. UELMEN (SBN 39909)

Santa Clara University School of Law

500 El Camino Real

Santa Clara, California 95053

Telephone: (408) 554-5729

BENJAMIN RICE (SBN 98551)

331 Soquel Avenue

Suite 110

Santa Cruz, California 95062

Telephone: (831) 425-0555

For Movants WO/MEN’S ALLIANCE FOR

MEDICAL MARIJUANA, VALERIE CORRAL,

And MICHAEL CORRAL.

                               IN THE UNITED STATES DISTRICT COURT

                        FOR THE NORTHERN DISTRICT OF CALIFORNIA

WO/MEN’S ALLIANCE FOR MEDICAL        )                NO. MISC.

MARIJUANA, VALERIE CORRAL, and        )

MICHAEL CORRAL,                                       )

                                                                            )                MOTION FOR

Movants,                                                             )                RETURN OF                                                                                        v.                                                                         )                PROPERTY

                                                                            )                (Rule 41(e), Fed. R.

UNITED STATES OF AMERICA,                     )                 Crim. Proc.).

                                                                            )

Defendant.                                                           )                FOR HEARING NOV. 4, 2002

______________________________________)                        AT 9:00A.M.

TO THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF CALIFORNIA:

Please take notice that on November 4, 2002, at 9:00 a.m., in the courtroom of the Honorable Jeremy Fogel, Movants WO/MEN’S ALLIANCE FOR MEDICAL MARIJUANA (W.A.M.M.), VALERIE CORRAL, and MICHAEL CORRAL will move this Court for the return of property unlawfully seized from them by Agents of the United States and of the Drug Enforcement Administration on September 5, 2002, on the ground that they are entitled to lawful possession of the property.  This Motion, pursuant to Rule 41(e), Fed.R.Crim.Proc., is based upon the attached declarations of Valerie and Michael Corral, the attached exhibits, the attached Memorandum of Points and Authorities, and such additional evidence as may be presented at the hearing of this motion.

A. Equitable Jurisdiction.

            Movants allege that (1) the government displayed a callous disregard for their constitutional rights, (2) they have an individual interest in and need for the property they want returned, (3) they will be irreparably injured by denying return of the property, and (4) they have no adequate remedy at law for redress of their grievance.

(1) The agents who executed the search of movants’ homes on September 5, 2002 displayed a callous disregard for movants’ constitutional rights.  The movants direct a peaceful collective hospice organization to assist seriously ill and dying patients in managing the pain and suffering with which they are afflicted.  The majority of these patients suffer from terminal cancer or AIDS.  Included in the therapeutic assistance to patients is the opportunity for patients to cultivate marijuana for their personal medical use and produce the medications collectively used by W.A.M.M. patients.  This cultivation and use of medical marijuana is pursuant to the recommendations of physicians and is in full compliance with the laws of the State of California.  Local law enforcement agencies are fully aware of this activity, and the peaceful and orderly manner in which it is conducted.  Federal agents could easily ascertain that there was no risk whatsoever to their personal safety in visiting the premises to execute a search warrant.

Early on the morning of September 5, 2002, between twenty and thirty armed agents of the Drug Enforcement Administration arrived in seven unmarked vehicles and two trucks at the homes of the movants VALERIE CORRAL and MICHAEL CORRAL, who were in bed asleep at the time.  The agents forcibly entered the two homes on the premises occupied by the movants without knocking or announcing their authority or purpose.  They pointed loaded rifles at the movants, forced them to the ground and cuffed their hands behind their backs.  At no time did movants offer any resistance to the agents.  The agents kept the movants restrained in handcuffs for four hours, until they were removed from their homes and transported thirty miles to the federal courthouse in San Jose, where they were released without being charged.  The agents also forcibly restrained and handcuffed a paraplegic patient who was sleeping as an invited houseguest in the residence occupied by movant VALERIE CORRAL, provoking a medical crisis of extremely high blood pressure and oxygen deprivation.

The agents cut down and removed 167 marijuana plants that were being cultivated for medical use by W.A.M.M. patients.  The agents were fully aware that such medical use was approved by physicians in full compliance with California law.  The agents were fully aware that the cultivation and use of the plants had no perceptible effect upon interstate commerce, and that no commercial transactions were involved in the cultivation or medical use of the plants by the patients of W.A.M.M.

The agents remained on the premises for eight hours, conducting an exploratory general search that was not authorized by the search warrant, and seized items that were not specified in the warrant, including an instructional video tape and numerous photo albums.

Based upon information obtained by California State Attorney General Bill Lockyer, (See Exhibit B, Letter of Attorney General Bill Lockyer, attached hereto),  movants believe and allege that the execution of this warrant was pursuant to a strategic policy to conduct raids as punitive expeditions, whether or not a crime can be successfully prosecuted.

(2) Movants have an individual interest in and need for the property they want returned.  The documents and records that were seized are the property of W.A.M.M., and are essential to carry on the activities of this organization. They contain confidential and private information about the patients who are W.A.M.M. participants.  The computer that was seized is the property of movant MICHAEL CORRAL, and contains personal data and records that are needed on a daily basis to conduct his personal affairs.  The firearms that were seized are the property of movant MICHAEL CORRAL, and are treasured family heirlooms.  The medicinal marijuana that was seized is not contraband, because its cultivation and use was authorized by state law and federal authorities demonstrated no perceptible effect on interstate commerce from its cultivation and use.  The medicinal marijuana is the property of W.A.M.M., for the use of its members.  It is needed to alleviate the pain and suffering they experience from serious medical conditions, and has been recommended by their personal physicians.  Movant VALERIE CORRAL is herself a patient, suffering from epileptic seizures.  She has received the approval of her physician for medical use of marijuana, and needs the medical marijuana which was seized for relief of the symptoms of her illness.

(3) Movants will suffer irreparable injury if the property is not returned.  The records and documents seized are one of a kind originals, with valuable information that cannot be replicated.  The computer contains important personal data and information unavailable from any other source.  The firearms are one-of-a-kind family heirlooms that cannot be replaced.  Movant members of W.A.M.M. are seriously ill patients afflicted with cancer, AIDS, Multiple Sclerosis, Glaucoma and other diseases which cause intractable pain, nausea and vomiting, wasting from loss of appetite, blindness and muscle spasms.  The seizure of the medication cultivated for these patients has produced serious consequences for their health.  Many of the patients are terminally ill, and will suffer deaths that are more painful and agonizing than necessary, because they are deprived of their medication. The seized plants represent a collective effort by W.A.M.M. patients and caregivers to produce a single year’s supply of the medication they need.

(4) Movants do not have an adequate remedy at law.  The government has no plans to prosecute plaintiffs, therefore they will not have the opportunity to challenge the seizure of their property and request its return at a later date.

B. Unlawfulness of Search.

            Movants allege the search and seizure conducted on September 5, 2002 was unlawful for the following reasons:

(1)There was no probable cause that evidence of any criminal activity was on the premises.  To the extent that the Federal Controlled Substances Act purports to criminalize the cultivation and use of medicinal marijuana by patients in states that have authorized such activity, and such activity does not substantially affect interstate commerce, the prohibition is unconstitutional because it exceeds the power of Congress to regulate commerce among the states, and violates the Tenth Amendment of the U.S. Constitution. In addition, there was no probable cause that any evidence of criminal activity was in the two private residences on the property.

(2)Government seizure of the only medication which gives relief to the pain, nausea, blindness, wasting, muscle spasms and other afflictions of seriously ill citizens is a violation of the substantive due process right of said citizens to life and liberty.  The government can show no compelling necessity to justify such a seizure.

(3)The use of search warrants to conduct punitive expeditions where criminal prosecution is not reasonably contemplated is unreasonable and violates the Fourth Amendment prohibition of unreasonable searches and seizures.

(4)The unannounced and forcible entry to a private home to execute a search warrant when officers have no reason to fear for their safety is unreasonable and violates the Fourth Amendment prohibition of unreasonable searches and seizures, as well as the specific requirements of Section 3109 of Title 18, United States Code.

(5)The use of unreasonable force in restraining citizens who are present while a search is conducted when those citizens have offered no interference with the search and present no risk to the searching officers is unreasonable and violates the Fourth Amendment prohibition of unreasonable searches and seizures. The arrest of citizens in their homes without an arrest warrant also violates the Fourth Amendment.

(6)The warrant did not particularly describe the items to be searched for and seized.  Conducting a general search for any evidence of any crime anywhere on the premises is unreasonable and violates the Fourth Amendment prohibition of unreasonable searches and seizures.

(7)The seizure of items not listed in the search warrant which are not obvious contraband or evidence of a crime and which are not in “plain view” is unreasonable and violates the Fourth Amendment prohibition of unreasonable searches and seizures as well as the Fourth Amendment requirement that the items to be seized be particularly described.

Conclusion

For all of the foregoing reasons, the Court should order the United States, and the Drug Enforcement Administration to return to the movants all of the items seized from their premises on September 5, 2002.

                                                                        Respectfully submitted,

                                                                        GERALD F. UELMEN          

                                                                        BENJAMIN RICE

                                                                        Attorneys for Movants WO/MEN’S                                                                                        ALLIANCE FOR MEDICAL                                                   

                                                                        MARIJUANA, VALERIE CORRAL

                                                                        And MICHAEL CORRAL.

         DECLARATION OF VALERIE CORRAL

I, Valerie Corral, hereby declare:

1. I am executive director of the Wo/Men’s Alliance for Medical Marijuana (W.A.M.M.) in Santa Cruz, California.  W.A.M.M. is a cooperative organization in which 250 patients have been elected to participate.  The patients who participate suffer from serious diseases and illnesses, including various forms of cancer, AIDS, Multiple Sclerosis, Glaucoma and Epilepsy.  The majority of the patients are terminally ill.  During the past year, forty patients died.  When participants die, new patients can apply for election to participate.  The goal of W.A.M.M. is mutual assistance among and between patients to alleviate the pain and suffering each is experiencing.  Participants frequently serve as primary caregivers for other members.

2. I reside with my husband, Michael Corral, on a small farm near Davenport, California.  For the past nine years, we have permitted the participants of W.A.M.M. to cultivate marijuana plants on our farm for their own medicinal use.  Patients who have received a written recommendation of a physician in compliance with California law receive a weekly allotment of this marijuana in various forms for the relief of pain, nausea, loss of appetite and other symptoms or side effects of their medical conditions or treatment.  Patients are not charged for the marijuana. The medical marijuana is consumed by the patients in their homes within Santa Cruz and adjacent Monterey and Santa Clara Counties.  None of the medicinal marijuana is transported across state lines, or distributed to others who are not W.A.M.M. patients.  W.A.M.M. is supported by voluntary contributions from patients and others, but the availability of medicinal marijuana for a patient is not dependent upon or related to their financial contributions. Donations of time or money by patients are completely voluntary based upon a patient’s own assessment of their ability.  Patients assist in caring for and harvesting the plants to the extent of their physical ability.  This activity is carried on with the knowledge and support of local government and law enforcement officials. 

3.  We maintain two residences on our farm.  The patient records reflecting patient allotments and their participation in the activities and support of W.A.M.M. are maintained in our residences, as is some of the harvested medicinal marijuana and various preparations utilized by the patients.  Our household bills, receipts and cancelled checks are also maintained in our residences, and numerous photo albums of W.A.M.M. participants and events. We occasionally welcome W.A.M.M. participants and other friends as house guests for overnight stays.

4. I am myself afflicted with epilepsy resulting from serious head injuries in an automobile accident.  With the recommendation of my physician I use medicinal marijuana to control seizures.  I maintain a small quantity of medicinal marijuana in both my residences for my own personal medical use, and cultivate my own plants at my home for my own personal medical use.

5. On the morning of September 5, 2002, I was asleep in my bedroom at the rear of the upper residence, when I was awakened by numerous loud footsteps and voices inside the house shortly after 7 a.m. I am a light sleeper, and would have heard any knocking or talking that preceded their entry to the house, but was aware of their presence only after they had opened the front door and entered the house. I walked out and around the exterior of the house to the front door, observing numerous men armed with automatic rifles inside the kitchen area of the house.  I entered the front door and said, “what are you doing here? Get out of my home.”  They turned their weapons on me, and yelled, “Hit the floor, get down on the floor!”  I said, “this is a medical marijuana garden.  I want to see a search warrant.”  They repeated, “get down on the floor.”  I said I would sit down, that I wanted to see a search warrant.  I was forcibly pushed down to my knees, then my face was shoved to the floor of the wooden deck at the front door, and my hands were cuffed behind my back.  I  felt a hard metal object at the back of my head.  I was kept in handcuffs while the men searched the house.  I repeated my request to see a search warrant and their badges, and was told to simply observe the printed words on some of their shirts, which read “police.”  I was finally given a copy of the attached warrant [Exhibit A] two hours later.

6. Suzanne Pfeil, a patient and Board member of W.A.M.M., was a houseguest asleep in the front bedroom which is entered from the front deck near the front door of the residence.  She is a paraplegic who can walk only with the assistance of braces, special shoes and canes.  She suffers from high blood pressure and often needs oxygen to assist her breathing.  The men entered her bedroom and, although she explained her medical condition to them, they forcibly restrained her with her hands cuffed behind her back.  They conducted a search of her personal belongings in the bedroom. When she complained of heightened blood pressure and difficulty in breathing, they declined to summon medical assistance for her, but moved her to the lower residence.

7. During the course of the next four hours, the men searched every room in the house, and seized bags of marijuana containing the weekly allotment of numerous patients with their names printed thereon, empty allotment bags and envelopes with patients names thereon, our banking and telephone records, numerous paid and unpaid bills, lists of patient names, and other records.  They also seized records containing personal and medical information about the patient-members of W.A.M.M., a small quantity of medicinal hash oil, and an unloaded rifle and shotgun that were stored in an unoccupied upstairs bedroom.  The rifle and shotgun were family heirlooms.  Two other rifles stored in the same location were not seized. Seven marijuana plants that were growing in the garden adjacent to the residence were cut down and seized.

8. At approximately 11:30 a.m., still in handcuffs, I was placed in the back seat of an automobile and, with my husband Michael, transported to the federal courthouse in San Jose, California, where I was eventually released.  The men were still searching our residences at the time I was removed.  At the time of my release I was informed that the men were unable to leave the premises because a crowd of W.A.M.M. patients had gathered at our gate.  I conveyed a request to the group to allow the agents to leave.

9. When we returned to our farm later that day, we discovered that more than 160 marijuana plants being cultivated for the medical use of W.A.M.M. patients had been cut down and removed.  Without access to this medication, many of these patients will suffer serious medical consequences.  They rely upon this medication to control seizures and intractable pain, to stimulate their appetite and avoid the “wasting syndrome” which afflicts AIDS patients, to control nausea caused by their cancer treatments, and for other relief recommended by their physicians.  Many of these patients suffer from terminal illnesses, and will die a more painful death without access to their medication. 

I declare under penalty of perjury that the foregoing is true and correct.

Executed on the 24th day of September, 2002, at San Jose, California.

_____________________________

                                                                        Valerie Corral

                               DECLARATION OF MICHAEL CORRAL

I, Michael Corral, hereby declare:

1. I am agricultural director of the Wo/Men’s Alliance for Medical Marijuana (W.A.M.M.), and reside with my wife, Valerie, on a small farm near Davenport, California. We maintain two residences on the farm, which is used by the participants of W.A.M.M. to cultivate marijuana for medicinal use. All of the cultivation and use of the medical marijuana is in full compliance with California law, and is openly conducted with the support of local government and law enforcement officials.  The premises of our farm are remote and secure, and we have never experienced any thefts of our plants.

2. On the morning of September 5, 2002, I was asleep in the upstairs bedroom of the lower residence.  I was awakened by the sound of numerous vehicles driving into the dirt parking area at the front of the lower residence.  I could see men exiting the vehicles and running toward the house through the bedroom window.  I jumped out of bed and put on a pair of sweat-pants and started down the stairs.  By the time I reached the bottom of the stairs, the men had already entered my home through the front door.  At no time did they knock or announce who they were or why they were there.  The men were carrying automatic rifles which they pointed at me.  I told them I was non-violent, I would not resist, and asked them to stay calm.  I told them they had nothing to fear as this was a medical grow.  I was extremely concerned for the safety of my dog, who is friendly but will run toward strangers.  I expressed this concern, but was immediately pushed down to the floor and my hands were cuffed behind my back while weapons were pointed at my head.  The men then began rummaging through all the rooms in the house. I was not shown a search warrant until two hours later.

2. In the upstairs bedroom, I kept a lap-top computer on a bedside stand.  The computer contains personal data and information about my daily activities and interests.  The men took the computer.  They also removed a small quantity of marijuana which we kept in a bureau drawer for my wife’s medical use. From a desk in an adjoining loft, they removed personal records and bills related to the property.

3. Various bills and records were also seized from the kitchen, and a .22 caliber unloaded rifle with a lock on the trigger was removed from a storeroom next to the kitchen. This rifle, as well as a rifle and a shotgun kept in the unoccupied upstairs bedroom in the upper residence, were family heirlooms that have not been used for many years.  There were two other rifles in the upstairs bedroom of the upper residence that were not taken.  I have no idea why the men took some of the rifles and left others behind.

4. The men searched through numerous boxes in the living room on the lower level containing photo albums of W.A.M.M. patients and caregivers and their activities.  Nine of these photo albums were seized.  The men also looked through books and video tapes stored in a large bookcase in the living room, and took one of the video tapes.

5. I was kept in handcuffs until approximately 11:30 a.m., when my wife, Valerie and I were transported to the federal courthouse in San Jose, California where we were released.  When we returned to our farm, we found that over 160 of the medicinal marijuana plants had been cut down or uprooted and removed from the garden.  I declare under penalty of perjury that the foregoing is true and correct.

Executed on the 24th day of September, 2002 at San Jose, California.

                                                                                                             ________________________________

                                            MICHAEL CORRAL

             MEMORANDUM OF POINTS AND AUTHORITIES

A. Jurisdiction.          

1. Rule 41(e) of the Federal Rules of Criminal Procedure provides:

A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that the person is entitled to the lawful possession of the property.  The court shall receive evidence on any issue of fact necessary for the decision of the motion.  If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.  If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

2. In Ramsden v. United States, 2 F.3d 322 (9^th Cir. 1993), the court identified four factors to be considered before a district court can reach the merits of a preindictment Rule 41(e) motion.  These factors include: (1)whether the Government displayed a callous disregard for the constitutional rights of the movant; (2) whether the movant has an individual interest in and need for the property he wants returned; (3) whether the movant would be irreparably injured by denying return of the property; and (4) whether the movant has an adequate remedy at law for the redress of his grievance.  Even if all four factors are not shown, however, the Ramsden court found that the “the balance of equities” can tilt in favor of reaching the merits.  Id. at 326.

B. Invalidity of Search Warrant.

1. If a district court determines that property has been illegally seized, the proper question in deciding the merits of a Rule 41(e) motion is not whether the officers acted in good faith, but whether returning the illegally seized evidence would be reasonable under all of the circumstances.  Thus, the “good faith” exception to the exclusionary rule announced

 in United States v. Leon, 468 U.S. 897 (1984) has no application to a motion for return of property under Rule 41(e).  J.B. Manning Corp. v. United States, 86 F.3d 926 (9^th Cir.1996).

2. The Fourth Amendment of the U.S. Constitution provides:

[N]o Search Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The affidavit in this case clearly establishes probable cause that medicinal marijuana was being cultivated on the premises and was being used by sick and dying patients.  Such activity is not a federal crime under the circumstances of this case.  Even if it is, however, that does not establish probable cause to search the private homes located on the premises.  The search of a home requires probable cause to believe that evidence of a crime is located in that home.  The Affidavit submitted by Patrick Kelly to support the issuance of this warrant makes no reference to any activity conducted in either home, much less any evidence to be found there.  It relies completely on his “general experience” of what illicit drug dealers generally do, and what kinds of records they generally keep.  There is no evidence whatsoever to suggest that the activities of the movants fit any of these patterns.  To the extent the warrant purports to authorize a search of the private homes occupied by the movants, it is totally lacking in probable cause.

C. Cultivation and Use of Medical Marijuana Approved by State Law Which Has No Effect Upon Interstate Commerce Does Not Violate Federal Law.

1. The seizure of marijuana authorized by the search warrant issued in this case is based upon the prohibition of marijuana cultivation and possession contained in the Federal Controlled Substances Act. 21 U.S.C. §§ 841, 846.  That prohibition, in turn, is based upon the authority of Congress to regulate commerce among the several States.  Congress has no general police powers.  United States v. Lopez, 514 U.S. 549, 566 (1995). As both Article I and the Tenth Amendment make plain, the Constitution confines Congress to an enumeration of powers and execution of those powers by means of laws that are necessary and proper.  McCulloch v. Maryland, 17 U.S. 316, 405 (1819).

The activity of the Movants took place wholly within the borders of the State of California.  It consists of the cultivation and use of cannabis by seriously ill persons on recommendation of physicians licensed by the State of California, by an organization authorized and regulated pursuant to California law. These wholly intrastate activities are beyond the power of Congress “to regulate Commerce . . . among the several States,”  U.S. Const. Art. I, sec. 8.  If Article I had included the power to regulate wholly intrastate commerce, it would simply have read “Congress shall have power to regulate commerce.”   In Champion v. Ames, 188 U.S.321 (1903), the Supreme Court held that the power to regulate commerce among the States included a limited power of prohibition.  But the Court insisted that this extension of Congressional power “does not assume to interfere with traffic or commerce . . .carried on exclusively within the limits of any State, but has in view only commerce of that kind among the several States.” Id. at 357. 

            If Congress is to reach the intrastate cultivation and use of cannabis by patients who may suffer without access to this medicine, it must do so under its power to pass laws that are “necessary and proper” to execute its enumerated powers.  U.S. Const. Art. I, sec. 8.  See New York v. United States, 505 U.S. 144, 158 (1992).  As has long been recognized, this provision could not have been intended to render the enumeration of powers redundant or superfluous. 

In United States v. Lopez, 514 U.S. 549 (1995) and again in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court held that Congress may reach wholly intrastate economic activity under the Necessary and Proper Clause only if that activity is shown to “substan­tially [a]ffect[] interstate commerce.”  Lopez, 514 U.S. at 560.[1]  Here, however, as in Lopez, there has been no showing either by Congress or by the government that the activity in question (here, the wholly intrastate cultivation and use of cannabis solely for medical use) substantially affects interstate commerce.[2]  As with the statute at issue in Lopez, neither the Controlled Substances Act “‘nor its legisla­tive history contain[s] express congressional findings regard­ing the effects upon interstate commerce’” (Id. at 562) of the wholly intrastate cultivation and use of cannabis solely for medical purposes. Neither Congress nor any court has made any factual findings whatsoever regarding the effect on interstate commerce of the intrastate cultivation and use of cannabis solely by seriously ill patients.  In any such inquiry, it would matter greatly that the intrastate activity at issue here is not for recreational use.  The government would have a much harder task to show that this narrowly confined activity, carved out by the State of California, substantially affects interstate commerce than it would if the activity involved were more extensive.  The more limited the intrastate activity at issue, the less impact, even taken in the aggregate, it could have on interstate commerce.  Moreover, the State of California is regulating this limited activity, thereby further mitigating the scope of the intrastate commerce in question and any impact it may have on interstate commerce. 

The findings in the Controlled Substances Act with respect to jurisdiction over intrastate activity are general and do not address the effect on interstate commerce of cultivation or use of cannabis by  seriously ill patients who require this medicine.  The rationales advanced for extending the jurisdiction of Congress to intrastate activity are so broad as to give Congress power over all commerce.  See, e.g., 21 U.S.C. § 801(4) (“Local distribu­tion and possession of controlled substances contribute to swelling the interstate traffic in such substances”).  Further, the general “findings” in the Controlled Substances Act do not address the standard articulated in Lopez or Morrison:  whether the intrastate cultivation and use of cannabis for medical purposes substantially affects interstate commerce.  Moreover, these “findings” ignore the distinction between commercial and noncommercial activity specified by the Court in Lopez and reaffirmed in Morri­son.  If these sorts of “findings” satisfy the standard of Lopez and Morrison then Congress could simply accompany every prohibition of intrastate activity, whether economic or not, with a blanket assertion that “intrastate activity X substantially affects interstate commerce,” thereby rendering these two decisions of the Supreme Court inoperative.  As the Court stated in Morrison: “[t]he existence of congres­sional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” 529 U.S. at 614.[3] 

The intrastate activities reached by Congress in Wickard v. Filburn, 317 U.S. 111 (1942) are not at all analogous to the wholly intrastate activities subject to the seizure in this case.  In Wickard the Court found that Congress may regulate the intrastate production and consumption of wheat because such production and consumption were in competition with wheat sold interstate and therefore only by reaching these intrastate activities could Congress successfully increase the market price of wheat in interstate commerce.  See Lopez, 514 U.S. at 560, quoting Wickard, 317 U.S. at 128. 

Here there is no federal scheme of price maintenance with which the intra­state cultivation of medical cannabis could possibly interfere.  Rather, the Controlled Substances Act  is a scheme to prohibit completely the interstate commerce in marijuana.  Under Wickard, Congress may only reach those intrastate economic activities that substantially impede its ability to regulate an activity that is within its powers.  The availability of cannabis for medical purposes through wholly intrastate cultivation and use, however, should reduce the demand for cannabis supplied from outside the state and thereby diminish the interstate commerce in illegal marijuana.  In this manner, it advances rather than obstructs the only legitimate objective of the CSA.

If Congress can prohibit the wholly intrastate commerce of particular goods on the unsupported speculation that such goods might leak out of a state and into interstate commerce,[4] or because there is no way to distinguish between goods produced within a state and those imported from other states,[5] then this would give Congress the plenary power over all commerce that the Constitution explicitly denies it.  There is no evidence that cannabis grown for the limited purpose of medical use by seriously ill Californians would be traded between states.  Should this occur, Congress retains the power to detect and prose­cute those persons moving cannabis in interstate commerce. 

2.  Even were the intrastate cultivation and use of cannabis for medical purposes found to substantially affect the illegal sale of cannabis between States, Congress would still lack power to reach activities that are noneconomic. The private possession, use, and cultivation of cannabis for medicinal purposes are not economic activities at all.  Nor is it economic activity to supply cannabis to another without gain.[6] 

In Lopez, the Supreme Court held that the regulatory power of Congress did not extend to the noneconomic intrastate act of possessing a firearm within 1,000 feet of a school.  In Morrison, it held that this power did not extend to the noneconomic intrastate act of rape.  In Morrison it noted that, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”  Morrison, 529 U.S. at 613 (emphasis added). 

Moreover, the “aggregation principle” of Wickard discussed above is completely inapplicable to the mere possession, use, acquisition, and cultivation of cannabis for medical purposes.  As was explained in Morrison, “in every case where we have sustained federal regulation under Wickard’s aggregation principle, the regulated activity was of an apparent commer­cial character.”  Morrison, 529 U.S. at 611 n.4.  [7]

3. Assuming arguendo that the seizure in this case is “necessary” to effectu­ate Congress’s power over interstate commerce, it must also be “proper” insofar as it does not intrude upon either the reserved powers of the States or the fundamental liberties of the People.  In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court noted that one aspect of the “propriety” of a law is whether it intrudes into the sovereignty of a State.

Id. at 923-24 (1993).  As the Supreme Court observed in New York v. United States, 505 U.S. at 157 “the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.”  While the Constitution delegates to Congress the power over interstate commerce and other national concerns, the States are primarily responsible for the health and safety of their citizens, a power known as the police power.  Traditionally, no power is more central to the sovereignty of the States; and the Court has always acknowledged that Congress lacks such a power.  See Lopez, 514 U.S. at 566. 

The State’s police power over health and safety is not limited to telling citizens what activities they may not engage in; it includes specifying activities in which they may engage.  Under the Supremacy Clause, States cannot exercise their police power to interfere with interstate commerce.  Similarly, under the Necessary and Proper Clause, Congress cannot exercise its power over interstate commerce to interfere with a state's police power by prohib­iting wholly intrastate conduct that the state permits in the interest of health and safety.

Here the State of California and its voters, through the initiative process, have determined that the health and safety of its citizens are best served by allow­ing seriously ill persons access to cannabis for medical purposes.  Under the circum­stances of this case, the Court should respect the choice made both by a sovereign State and by the sovereign people of a State.  As observed by Justice John Paul Stevens in his concurring opinion in United States v.Oakland Cannabis Buyers’ Coop., 121 S.Ct. 1711, 1723-24 (2001):   

That respect [for the sovereign States that comprise our Federal Union] imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particu­larly in situations in which the citizens of a State have chosen to “serve as a laboratory” in the trial of “novel social and economic experiments without risk to the rest of the country.” 

D. Government Seizure of Pain Medication From Terminally Ill Patients Violates Fundamental Rights Guaranteed by the Fifth and Ninth Amendments.

1. Even if this Court concludes that the prohibition and seizure pursuant thereto neither exceeds the powers of Congress nor improperly interferes with State sovereignty, this Court must still consider whether the prohibition and seizure improperly infringes upon unenumerated constitutionally protected liberties.  To receive constitutional protection, an unenumerated liberty must be “‘deeply rooted in this Nation’s history and tradition,’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,’ [Palko v. Connecticut, 302 U.S. 319, 325 (1937)].”  Washington v. Glucksberg, 521 U.S. 702, 720‑21 (1997). 

2. The rights to bodily integrity, to ameliorate pain, and to prolong life are so closely related that it is difficult to say if they are distinct rights or merely specific aspects of the famous trinity of “life, liberty, and the pursuit of happiness” in the Declaration of Independence.  The substance of the Constitution’s protection, however, should not turn on the particular linguistic formulation employed to express this most fundamental right. 

The seizure improperly infringes the Cooperative’s patient-members’ fundamental right to use effective medical treatment available to them pursuant to their physicians’ recommendations. This right has deep roots in our Nation’s history, legal tradition, and practice of permit­ting decisions about one’s body to be made free from governmental intervention.  The right articulated by the patient-members is concomitant with the established rights to bodily integrity, to ameliorate pain and suffering, and to prolong life. Four concurring opinions in Glucksberg, supra, strongly suggest that the Due Process Clause protects an individual’s right to obtain medical treatment to alleviate unnecessary pain.  At the heart of this traditionally recognized liberty, Justice Stevens noted, was that of “[a]voiding intolerable pain and the indignity of living one’s final days incapacitated and in agony.”  Id. at 745.  Justice Souter likewise recognized that this “liberty interest in bodily integrity” includes a right to determine what shall be done with his own body in relation to his medical needs.”  Id. at 777 (Souter, J., concurring).  Outside of the legal context, the right to ameliorate pain is embedded in the professional and ethical standards of physicians and other caregivers.  Allowing a patient to experience unnecessary pain and suffering of any form is considered substandard medical practice, regardless of the nature of the patient’s condition or the goals of medical intervention.[8]  Likewise, physicians have a moral and ethical duty to provide relief from pain and suffering.[9]  This standard has in fact been recognized since the inception of medical ethics in western culture.[10]

E. Particularity of Description in Search Warrant of Items to be Seized, and General Search for and Seizure of Items Not Described in the Search Warrant.

            The broad, general descriptions of the items to be seized contained in “Attachment B” of the search warrant do not meet the constitutional requirement of a particular description of the items to be seized, nor are they supported by a showing of probable cause.

            Although the movants were openly engaged in the cultivation and use of medicinal marijuana by seriously ill patients, there was no probable cause whatsoever of any use or distribution of narcotic drugs.  The term “narcotic drug” is carefully defined in the Controlled Substances Act to include opium and opiate derivatives, poppy straw, and coca leaves and their extracts.  21 U.S.C. §802 (17).  Marijuana is not a narcotic drug.  If anyone should know the difference, it would be agents of the federal Drug Enforcement Administration, who are entrusted with enforcement of federal laws related to controlled substances. In describing the records to be seized, the search warrant describes “narcotics ledgers,” “narcotics distribution lists,” narcotics supplier lists,” records of when “narcotics” were purchased, and receipts of proceeds from “narcotic distribution.” [Attachment B, Paragraph H].  The bank records to be seized are all generically described as records reflecting money generated “from the sale of narcotics.” [Id., Paragraph I].  The telephone and address books and communications to be seized are those reflecting “illegal associates in narcotic trafficking activities.” [Id., Paragraph K].  Travel records are limited to those reflecting travel to participate in “narcotics trafficking.” [Id., Paragraph N].      It must be assumed that the specific reference to “narcotics” activity was deliberate, since elsewhere in the warrant there are references to marijuana [Paragraphs D, E and F] and references to “controlled substances.” [Paragraphs G, J, L, M, O].

            The broadest descriptions contain no reference to criminal activity whatsoever, purporting to authorize the seizure of all tax, income and bank records with no limitation as to time period or the nature of the activity they reflect. [Paragraphs A, B, C].  Thus, the warrant purported to authorize a general search of every item and every scrap of paper on the premises.  To the extent any effort was made to limit some of the descriptions to those related to criminal activity, the criminal activity described was one for which there was no scintilla of probable cause: trafficking in narcotic drugs.

            The deficiencies in this warrant are analogous to those presented in United States v. Kow, 58 F.3d 423 (1995).  There, the search warrant authorized the search of a video store suspected of fraudulent activities:

The warrant authorized the seizure of virtually every document and computer at HK Video.  To the extent that it provided any guidance to the officers executing the warrant, the warrant apparently sought to describe every document on the premises and direct that everything be seized.  The government emphasizes that the warrant outlined fourteen separate categories of business records.  However, the warrant contained no limitations on which documents within each category could be seized or suggested how they related to specific criminal activity.  By failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional.  E.g., Center Art Galleries—Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9^th Cir. 1989); United States v. Stubbs, 873 F.2d 210, 211 (9^th Cir. 1989)(warrant invalid “because of the complete lack of any standard by which an executing officer could determine what to seize.”)

The nature of the search activity conducted by the agents reflects the lack of particularity in the warrant.  Thirty agents remained on the premises for more than seven hours, pawing and rummaging through boxes of photo albums and family memorabilia.  The agents seized an instructional videotape that is widely available by public sale, and nine photo albums of picnics and social activities of patients and their families.  This was precisely the type of general search that the Fourth Amendment was designed to prevent.

F. Failure to Knock and Announce Authority and Purpose.

            Section 3109 of Title 18, United States Code, requires that federal agents executing search warrants knock and announce their authority and purpose before entering a home to conduct a search.  In Wilson v. Arkansas, 514 U.S. 927 (1995), the Court held that the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry.  Here, the heavily armed officers simply barged into two separate residences in the early morning hours, while the occupants were still in bed, without knocking or announcing their presence, their identity or their purpose.