Medical pot exceeds law, but no charges

Calling the law unclear, King County Prosecutor Dan Satterberg said Tuesday his office will not file criminal charges against a former Seattle man who police said had more plants at his community medical-marijuana garden than allowed under state law.

Mark Spohn called Seattle police on May 26 after four armed men, posing as FBI agents, entered his house and stole some of the recently harvested marijuana plants he was growing at his Wallingford garden. When police arrived they found that Spohn had more than 100 additional plants, which he was growing for himself and 20 other authorized medical-marijuana patients, according to court paperwork.

Police seized the bulk of what they found, leaving 15 plants — the state Department of Health's limit for an individual medical-marijuana patient — and forwarded the case to the Prosecutor's Office.

Satterberg said there is no specific state law when it comes to community gardens.

"The law neither permits nor prohibits a collective [medical marijuana] operation," Satterberg said, adding that he is not "obligated to prosecute people because they have a few plants too many."

According to the memo announcing the prosecutor's decision to not file charges, the law doesn't "explicitly address how marijuana should be manufactured by a provider in a legal manner or how it should be distributed to patients."

"Chief among these ambiguities is the question of whether or not an authorized provider of marijuana is allowed to provide for more than one patient over a period of time," the memo says. "The statute is simply unclear as to whether such activity is prohibited or not."

Douglas Hiatt, a medical-marijuana activist and Spohn's lawyer, called Satterberg's decision "the right thing to do."

Satterberg said this doesn't mean that anyone running a medical-marijuana community garden will avoid prosecution. He said that each case will be reviewed individually.

Satterberg said that in the past seven years he has had more than three dozen similar cases referred to his office and he has declined to file charges in all of them.

"I don't want to prosecute sick people," Satterberg said. "If this is a legitimate medicine we should treat it like a legitimate medicine. It seems that if patients want to band together and share their time and authorizations they should be allowed to do that."

Hiatt said it is expensive and time-consuming to grow marijuana properly and that many people granted a prescription are too ill to handle it themselves.

In 2008, the Department of Health set supply limit guidelines for medical marijuana at 24 ounces of usable marijuana plus 15 plants per person. Those who need more marijuana to manage their pain, according to the Department of Health, would have to prove they need it — though how they would do that remains unclear.

The Department of Health says that "a designated provider must be at least 18 years old and must be designated in writing by the qualifying patient." It also says a designated provider "can only be a provider for one patient at any one time."

But state health officials do not address patients, like Spohn, growing marijuana for other patients, Hiatt says.

"There's no law that prohibits patients growing for other patients," he said.

Over the eight months since Spohn's plants were seized, prosecutors told him that he should move out of Wallingford to protect neighbors because his home had become a known drug house. Spohn's agreement to move was a "significant factor" in the decision not to file criminal charges, Satterberg added.

But the Prosecutor's Offices hasn't heard the last of Spohn.

On Jan. 15, Shoreline police showed up at the home after being notified by a Seattle City Light power inspector that he may be running an illegal drug house, Hiatt said. Spohn, 48, told investigators that he was growing medical marijuana and had 85 plants inside the house, said King County sheriff's spokesman Sgt. John Urquhart. Investigators searched the home and left Spohn with 24 ounces of processed marijuana and 30 plants, Urquhart said.

"This was pretty egregious," Urquhart said. "The law is real clear, we have absolutely no intention of going after legitimate medical- marijuana growers or users who comply with the law. In this case, he [Spohn] had too much." The Sheriff's Office has turned the case over to prosecutors with the recommendation that Spohn be charged with possession of marijuana with intent to deliver, a felony, Urquhart said.

"It's incredibly frustrating when this keeps happening to patients," Hiatt said of Spohn's community garden in Shoreline. "He was absolutely doing nothing wrong; he was absolutely in compliance."

Hiatt believes that the Shoreline case won't go anywhere. Satterberg said that his office has not made a decision in the case.

Hiatt said that Spohn operated a community medical-marijuana garden at his Wallingford home for several months without any trouble from police.

Hiatt said that Spohn's medical-marijuana gardens had been left alone by police until former Chief Gil Kerlikowske left the department to head the federal Office of National Drug Control Policy.

Hiatt said that Kerlikowske agreed not to enforce the 15-plant rule in Spohn's case.

But Seattle police deny that anything has changed in regard to its policy toward medical marijuana.

Seattle police spokesman Sgt. Sean Whitcomb declined to comment Tuesday on Satterberg's decision to not charge Spohn.

No arrests were ever made in the Wallingford robbery.

Spohn declined to be interviewed for the story. Hiatt said Spohn has several ailments that qualify for a medical-marijuana prescription.

Satterberg said that while marijuana possession is a low-ranking offense according to state felony guidelines, three convictions could leave a defendant spending less than six months in jail.

Satterberg, whose office has 55 open murder cases, says he has "more important things do" than charge marijuana-possession cases.

Seattle's new City Attorney Pete Holmes has stopped charging people with misdemeanor pot possession, which is less than 40 grams.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com