Our office currently represents the California branch of the political organization, NORML ("National Organization for the Reform of Marijuana Laws"), which was created to advocate the reform of marijuana laws within the state of California. We are writing this brief on behalf of our client due to the concern that this case calls into serious question the constitutional protections against unreasonable searches and seizures afforded all citizens, including medical marijuana patients acting under the auspices of the Compassionate Use Act of 1996. Specifically, the issue of probable cause to arrest when facts are present and obvious to alert law enforcement to the presence of a medical marijuana defense under the Compassionate Use Act of 1996 was presented by the facts of this case and by the Court of Appeal's decision. Our client is very concerned that this litigation will give law enforcement free reign to ignore the Fourth Amendment and Article 1, Section 13 of the California Constitution and allow arrests of medical marijuana patients throughout the state, only to have charges dismissed or not filed due to the existence of their legitimate defense under the Act.

During the underlying case, the arresting officer, Sergeant Lunney, acted with full knowledge of the existence of a valid physician's recommendation and that Mr. Mower was cultivating for personal use pursuant to that recommendation. (RT 320-322, 329)

It is now necessary to fully brief the issue of probable cause to detain, arrest, and seize property in order to prevent the total disintegration of the rights that the voters of California have created when enacting the Compassionate Use Act. This frightening result was clearly not the intent of the voters when enacting this statute nor does such a result comport with the constitutional protections afforded citizens of the United States with regard to arrest, search and seizure issues.

On November 5, 1996, the voters of the State of California approved Prop 215 by the initiative process. The intent of the proposition, as expressly stated in the statute is "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician..." and "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." H&S § 11362.5(b)(1) (C) & (D) (emphasis added). The only limitation, placed by the voters on the application of its purposes in the interpretation of the initiative was as follows: "[n]othing in this act shall be construed to supersede legislation prohibiting persons form engaging in conduct that endangers others, nor condone the diversion of marijuana for nonmedical purposes." H&S § 11362.5. Thus, the statute makes lawful, the possession and cultivation of marijuana pursuant to a valid physician's recommendation or approval.

"It is [the] solemn duty [of the courts] to jealously guard the initiative power, it being one of the most precious rights of our democratic process ... if doubts reasonably can be resolved in favor of the use of the initiative, we should so resolve them." Amador Valley Joint Union High School District v. State Board of Equalization (1978) 22 CAM 208, 248. "Initiatives by their very nature are direct votes of the people and should be given great deference by our courts. Judges should liberally construe this power so that the will of the people is given full weight and authority." Id. at 248 (Chief Justice Bird, Concurring and dissenting). "It is a fundamental precept of our law that, although the legislative power under our constitutional framework is firmly vested in the Legislature, the people reserve to themselves the powers of initiative and referendum. (Cal.Const.art. IV, § 1). It follows from t1iis that, the power of initiative must be liberally construed ... to promote the democratic process." Id. at 242. "It is not for judges to listen to the voice of persuasive eloquence, or popular appeal. We have nothing to do, but to pronounce the law as we find it; and having done this, our justifications must be left to the impartial judgment of our country." Trustees of Dartmouth College v. Woodward (1819) 17 U.S. (4 Wheat.) 518, 713, 4 L.Ed. 629 (Justice Story).

By arriving at the holding that it did, the Court of Appeal and the Superior Court ignored fundamental Fourth Amendment principles, the express purposes of the Act, as well as the voters' intent when enacting Prop 215. The court takes the absurd position that, despite the clear language and express intent of the voters to legitimize the use of medical marijuana, nevertheless, all medical marijuana users are subject to arrest, no matter how open or obvious their medical use or cultivation may be. The court's holding is not supported by the history of the initiative, its plain language, the voter pamphlet arguments, or the relevant case law. With the passage of the Compassionate Use Act in 1996, "the statute creates an exception to California laws prohibiting the possession and cultivation of marijuana. These prohibitions no longer apply to a patient or his primary caregiver who possesses or cultivates marijuana for the patient's medical purposes upon the recommendation or approval of a physician," United States v. Oakland Cannabis Buyer's Cooperative (2001) 121 S.Ct. 1711 (emphasis added.) California voters have legitimized the medical use of marijuana. In doing so the voters did not create some technically-interpreted law which, no matter what the facts apparent to law enforcement may be, would continue to subject medical patients to arrest, only to assert their defense at a later, time in court.

It is an established principle of statutory construction that if the meaning and purpose of a statute is apparent from its express terms, a court should not consider other evidence of intent such as ballot pamphlets. Halberd's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4'h 1233, 1238-39. "Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language. Of course, in construing the statute, the words must be read in context, considering the nature and purpose of the statutory enactment." People ex rel Daniel Lungren v. Superior Court (1996) 14 Cal4th 294,301. Also see: Mutual Life Insurance v, City of Los Angeles (1990) 50 Cal. 3d 402, 407-08 (Plain meaning of constitutional provision permitting tax on insurance premiums meant there was no need to "resort to indicia7' of intent of voters); DaFonte v. Up-Right Inc. (1992) 2 Cal.4th 593, 601 ("The plain meaning of words in a statute may be disregarded only when that meaning is 'repugnant to the general purview of the act, or for some other compelling reason.")

In the instant case, the nature and purpose of H&S § 11362.5 is plain and apparent from the express terms of the statute. Section (b)(1) (emphasis added) states that "the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Thus, the voters clearly intended to create a right for seriously ill Californians to use medical marijuana.

Additionally, subparagraph (B) states that another purpose is to "ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." Its purpose is sweeping. "Ensure" means "(2) to make sure or certain ... ; (3)to make secure or safe: as from harm." (Webster's Encyclopedic Unabridged Dictionary of the English Language (New Revised Edition, 1996), 475). Thus, the intent of the statute is to make sure or certain that each citizen of California who has a doctor's recommendation has the right to " obtain" and "use" marijuana. In ensuring a patient and caregiver the right to obtain marijuana, the voters "ensured" that they would not be subject to "criminal prosecution or sanction." "Prosecution" means "the institution and carrying on of legal proceedings against a person." (Webster's at 1154.) "Sanction" in this context means "(a) a provision of a law enacting a penalty for disobedience or a reward for obedience; (b) the penalty or reward." (Webster's at 1265.) The beginning of carrying on of legal proceedings against a person is the arrest. Arresting a person for possessing or cultivating marijuana is clearly a penalty or a sanction for that conduct. Thus, any court which holds that police may arrest individuals who conform with this Act is contradicting one of the express purposes of the act, as the Court of Appeal in this case held.

Yet, as will be discussed, the Court of Appeal alludes to an "absolute right to arrest offenders of sections 11357 and 11358 of the Health and Safety Code [possession and cultivation of marijuana, respectively] without the additional 'investigation' proposed by appellant." (See Section entitled, "C. Ballot Pamphlet Language"). This analysis ignores the plain words of the statute and the plain meaning of those words. By using such sweeping language such as an "absolute night to arrest offenders," the court creates a holding that will affect all circumstances of medical marijuana use. The court fails to acknowledge that there may be situations where officers do not have an "absolute right to arrest" persons who are possessing or cultivating marijuana clearly under the protection of the Compassionate Use Act. For example, such sweeping language would include the situation where law enforcement officers are already aware of facts that would lead them to believe that the so-called "suspect" is acting under the Compassionate Use Act. The court's broad holding directly affects those situations where additional investigation is necessary or minimal investigation of the physician's recommendation would suffice, where the police have reason to believe that a "suspect" is conforming to the Act. The Court of Appeal's holding would subject even those who alert law enforcement to their open and obvious medical use to arrest and seizure, at the whim of the arresting officer.

It is obvious that the voters intended, by enacting this statute by initiative, that if a person makes known to the police department that he or she is cultivating or possessing marijuana for medical purposes, he or she should not be subject to any criminal prosecution, including arrest. Yet, by the sweeping language of "Section V" of the Court of Appeal's opinion, such persons would be subject to police officers' "absolute right to arrest offenders of sections 11357 and 11358 of the Health and Safety Code." Clearly, this was not the intent of the voters, to subject open and obvious medical marijuana patients to the whim of overzealous police officers. The voters at least intended to provide known and obvious medical marijuana users and growers with some minimal protection against arrest and seizure of their plants and related cultivation equipment.

In resolving questions of statutory interpretation, the first step is to apply the statute as written in its ordinary meaning. As in any case involving statutory interpretation, "[o]ur first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning." People v. Valladoli (1996) 13 Cal.4th 590, 597; Garcia v. McCutchen (1997) 16 Cal.4th 469. When construing a statute, a judge's duty is "simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted…." (McAlexander v. Siskiyou Joint Community Coll. (1990) 222 Cal. App. 3d 768, 775.) If there is no ambiguity about the meaning of the language, we must apply the provision according to its terms without further judicial construction. (Kelly v. Yee (1989) 213 Cal.App.3d 336, 340.) In a case where the language of the statute is clear on its face, we may not consider extrinsic evidence to determine the intent. of the Legislature. We construe statutory language according to ordinary rules of statutory interpretation, looking first to the words of the statute to ascertain the Legislature's intent. (People v. Stanfield (1995) 32 Cal.App.4' 1152, 1157.) When interpreting a statute, if the language is clear, we follow that plain meaning. (Great Lakes Properties Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155.) We may not disregard the plain provisions of a statute, nor may we go beyond the meaning of the words used when they are clear and unambiguous. We may not speculate that the Legislature meant something other than what it said, nor may we rewrite a statute to make express an intention that did not find itself expressed in the language of that provision. (McAlexander v. Siskiyou Joint Community College supra, at p. 775.)

Courts have consistently interpreted voter initiatives in a manner as to effectuate their purpose. Indeed, the "primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure." (People v. Hazelton (1996) 14 Cal4th 101,105.)

In Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1472-1473, the court pointed out this State's long line of unbroken case law requiring courts to "interpret a measure adopted by vote of the people in such manner as to give effect to the intent of the voters adopting it." Bonner supra, at p. 1472-1473

Our case law has placed unique emphasis on liberally interpreting voter initiatives in a manner that furthers the voters' intent. As the Supreme Court stated in Rossi v. Brown (1995) 9 Cal4th 688, 695:

See also Santa Clara County Local Transportation Authorily v. Guarding (1995) 11 Cal.4th 220, 253 (same); Legislature v. Eu (1991) 54 Cal.3d 492, 501 (same).

These rules were applied in Amwest v. Wilson (1995) 11 Cal.4th 1243,1260. In Amwest the California Supreme Court struck down an Insurance Code that was inconsistent with the purpose of Proposition 103. The Court found that the language of Proposition 103 was broad but that the newly enacted Insurance Code sought limitations contrary to the broad language of Proposition 103. The Court responded to a similar argument as that advanced by the trial court here urging a narrow interpretation of the scope of the Proposition, by stating:

See also Warfield v. Peninsula Golf Club (1995) 10 Cal.4th 594, 599 (statutory interpretations must be made in a manner which advance the purpose of the law); State of California v. Superior Court (1962) 208 Cal.App.2d 659, 664, (Court broadly interpreted initiative in order to serve its purpose.)

Our State Supreme Court has warned that initiatives may not be interpreted in a manner that is inconsistent with its express purpose; In People ex rel Daniel Lungen v. Superior Court (1996) 14 Cal.4th 294, at 305 the Court reiterated this concept and held that:

Here, the voters read the language of the Act, duly considered its broad purpose, and passed the Act by a wide margin. Proposition 215 must be interpreted in a manner that effectuates its purpose; i.e. to "ensure" that patients can "obtain" and "use" medical marijuana without interference from the State.

The Court of Appeal and Respondent ignore the voter's express purposes, when attempting to construe the statute. Obviously, there are conditions attached to legally cultivating or possessing marijuana under the Act, There must be (1) a valid physician's recommendation or approval, (2) the individual must be either a patient or the primary caregiver of a patient, and (3) the amount possessed or cultivated must be reasonably related to the patient's medical needs (See People v. Trippet (1997) 56 Cal.App.4' 1532.) If law enforcement officers have reason to believe that the individual does not meet any of these conditions, then surely proper investigation followed by an arrest may be proper at that time. But, the Court of Appeal's holding gives law enforcement uncontrolled discretion to disregard the Act completely and force the district attorney to sort it out later. This is not the law nor could it be argued to be the intent of the voters.

The Court of Appeal states that "[t]he rule of necessity and convenience provides that 'the burden of proving an exonerating fact may be imposed on a defendant if its existence is 'peculiarly' within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient." While this may be a compelling argument for dealing with cases when evidence of a valid physician's recommendation is not presented until after arrest, we are dealing here with the period prior to arrest of a suspect for possession or cultivation. If law enforcement is alerted to the fact that the Compassionate Use Act may be involved in a situation, is it really so inconvenient for officers to simply investigate the presence or absence of a valid recommendation? Again, if the officer then has reason to believe that any of the above conditions is not met, then clearly the officer may arrest this person for possession or cultivation. This is not unlike other situations where officers must inquire into the presence and validity of a permit for possessing a firearm or any other regulated activity. Surely, police officers may not arrest anyone who possesses a firearm in their home without at least some minimal investigation into whether or not the person possesses a valid permit. The Compassionate Use Act is exactly the same, it does not create some unworkable rule that would force "law enforcement to somehow resolve [the issue of the applicability of the Act] on their own prior to arrest" it merely provides additional facts for officers to investigate prior to arrest. If there is no reason to believe the Compassionate Use Act is involved in a case, there is no additional investigation required.

The Court of Appeal takes the position that additional police investigation prior to arrest is too complicated, too inconvenient, or too unworkable and refuses hold that the voters intended that police be required to ... investigate' and make factual determinations..." prior to arrest. This, however, is precisely what the voters intended as is clear from the express terms of the statute, the ballot pamphlets, and a common sense construction of the enactment. Additional investigation is entirely what law enforcement officers are trained to do. It is a very cynical view of law enforcement in general, that the court must have, to believe that they are incapable of making simple factual determinations prior to arresting a suspect. This Act was not written with such cynicism that the court possesses and clearly requires some minor changes in the enforcement of marijuana possession and cultivation laws in California.

The Court of Appeal then proceeds to endorse the fact that disparities in local enforcement of marijuana laws exist within the state. "That local communities will establish protocol for handling marijuana violation investigations under the Act is no different than local prosecutorial discretion regarding when to prosecute or when to seek the death penalty," the court noted. It is ironic that the area of criminal law most rife with constitutional questions, the death penalty, is the Court of Appeal's example of what is constitutionally acceptable. The court states that "[w]hile this may create some enforcement disparity between police agencies or counties, the simple answer is that this reality is no different than individualized resolution of 'current medical needs' made by jurors." The difference that the court falls to note is that this decision allows police to arrest individuals even if the officers have reason to believe that the individual is conforming with the Act. This court grants them an "absolute right to arrest" anyone possessing or cultivating marijuana. Such questions will often never reach a jury because the district attorney will be forced to dismiss immediately upon learning the facts of the situation. There is no other criminal law in this state that allows police officers to arrest an individual when the officer has reason to believe that what the individual is doing is legal. What the court endorses is a standardless statute that local law enforcement agencies are free to enforce in any way that they may determine, including completely ignoring the statute. This is clearly a violation of equal protection as well as a citizen's due process right to notice of what is legal under the Compassionate Use Act.

This court held that "[t1he ballot pamphlet makes clear that the statute was not intended to create complete immunity for medical users of marijuana." The court then proceeded to quote from an argument to Rebut an Argument against Proposition 215 as its sole analysis of this issue. The court cites an argument yet fails to cite the Summary Prepared by the Attorney General or the Analysis by the Legislative Analyst, both of which are attempts to objectively interpret the impact of the statute to the voters. Such, one-sided "interpretation' represents the extent of the court's analysis of the ballot pamphlets. The court even proceeds to state that the ballot pamphlet "does not advise voters that patients would be protected from criminal prosecution" but only from "criminal penalties. "(emphasis in original). Perhaps the court did not read the full ballot pamphlet, which clearly states that the initiative would "[e]xempt patients ... who possess or cultivate marijuana for medical treatment ... from criminal laws which otherwise prohibit possession or cultivation of marijuana." (See Summary Prepared by the Attorney General.) Or even more importantly, the statute itself states that its purpose was to "[e]nsure that patients and their primary caregivers who obtain and use marijuana for medical purposes ... are not subject to criminal prosecution or sanction." It seems that the court is arguing or is even holding that the terms of the statute

which include the term, *prosecution,' are ambiguous, yet the lack of the term 'prosecution' 'in the ballot pamphlet arguments is clear in expressing the voters' intent.

When considering ballot arguments, it must be emphasized that an attack on this initiative simply cannot hinge on selected ballot arguments. See McGuire v. Wentworth (1932) 120 Cal.App.340, 344, stating:

A court thus for example cannot rely on a single ballot argument, or ballot arguments taken out of context whose language is interpreted in a mariner inconsistent with the plain words of the initiative and contrary to its purpose. Also see People v. 0ttey(1936) 5 Cal.2d 714, 723 (Not only are ballot arguments not controlling but the court must first place its reliance on the plain language of the proposition.) Thus, this court cannot rely on selected ballot arguments taken out of context and instead must rely on the rules of statutory construction which dictate that any interpretation must be consistent with the purpose of the initiative; here to "ensure" that patients may "obtain" medical marijuana.

The court hinges its argument; i.e. that medical marijuana patients are subject to a law enforcement officer's "absolute right of arrest", on selected portions of a single ballot argument. Rules of initiative interpretation prohibit imputing voter intent in this fashion. A court cannot ignore the balance of voter pamphlet arguments and decide the issues herein from half of one argument, especially when the entirety of the voter pamphlet arguments contradicts the court's construction. However, before even commencing with a balanced analysis of the voter pamphlet it is imperative to keep in mind that ballot arguments, as a matter of law, are not even relevant when the statutory terms are clear. (People v. Ottey (1936) 5 Cal.2d 714, 723; McGuire v. Wentworth (1932) 120 Cal.App. 340, 344.)

Prior to the circulation of an initiative measure, the Attorney General prepares a title and summary of its "chief purposes and points." (Cal.Const.Art. 11, § 10(d); Elec.Code §§ 3502, 3503).) "The Attorney General's statement must be true and impartial, and not argumentative or likely to create prejudice for or against the measure. The main purpose of these requirements is to avoid misleading the public with inaccurate information.... As a general rule. the title and summary ... are presumed accurate….." (Amador , supra, 22 Cal.3d at 243.) The Attorney General's Summary declares that Proposition 215 "exempts patients and defined caregivers who possess and cultivate marijuana for medical treatment ... from criminal laws which otherwise prohibit possession or cultivation of marijuana." The Summary clearly communicated to the voters that the possession and cultivation of marijuana for medical use would be permitted by the initiative. Clearly, the office of the Attorney General itself advised the voters that this law would protect those who acted under it in some way from arrest for their actions in conformity with the law. It is evident from a complete reading of the ballot measures that the voters understood the Act as providing a reasonable measure of protection from unjustified arrests.

A fair reading of the Legislative Analyst's report makes it evident the voters intended to dichotomize marijuana law. If the marijuana is possessed for non-medical purposes then it is still illegal and all pertinent laws still apply. However, if the marijuana is for medicinal purposes, the State would be powerless to interfere. The voters got a clear message from the Analysis that qualified patients could lawfully possess medical marijuana without fear of arrest without cause. We normally equate the word "allow", as repeatedly used by the Legislative Analyst, to mean "lawful" and "without police interference."

The most pertinent portion of Mr. Hallinan's argument clearly sends a message that medical marijuana users should not be subject to arrest unless they possess amounts beyond their needs or participate in unlawful commercial activity. The voters were keenly aware that medical marijuana users could not be hauled off to jail without any recourse from this new Act.

The arguments against the passage of Proposition 215 are filled with dire predictions of the difficulty police would encounter in enforcing unlawful use. The entire picture thus given by all the voter arguments is that medical patients would be protected from arrest. These anti-Proposition 215 arguments sent a clear message to the voters that police could not arrest those who are medical patients authorized by their physicians. "That the opponents of the initiative measure suffered no illusions as to the intent and purpose of the amendment is evidenced by the following quotation[s] from the argument[s] made against the adoption of such amendment." (Hammond v. McDonald (1942) 49 Cal.App.2d 671, 689. Opponents warned that the initiative would do all the following: "[A]Ilow unlimited amounts of marijuana to be grown anywhere ... without any regulation or restriction" and that the proposition will "create legal loopholes for drug dealers to avoid arrest and prosecution;" that "proponents ... want ... to legalize and legitimize the widespread use of marijuana in California;" that while "consumers are protected from unsafe and impure drugs ... this initiative makes marijuana available to the public without ... regulation ... ; there would be no rules restricting the amount a person can smoke or how often they can smoke it." (See Argument Against Proposition 215.) "Proposition 215 will make it legal for people to smoke marijuana in ... public places." (Rebuttal to Argument in Favor of Proposition 215.)

Encompassed in these dire predictions was the warning that police would have to conduct an investigation to determine if the person's cultivation was lawful and that this would make the enforcement of unlawful possession difficult. The opponents understood the law as a change of circumstances under which police could arrest those in possession of marijuana. Interpreting the initiative as Respondent requests would allow rejected arguments to be raised again and effect a judicial redrafting of the initiative.

The voters clearly understood that this Act would create some rights against any criminal sanction for medical marijuana users and common sense tells us that protection against unwarranted arrests must have been inherent in this new right that Proposition 215 has created.

The court of appeal held that according to the common-sense construction of the Act, police need not even undertake minimal additional investigation when confronted with facts that give them reason to believe that a suspect might have a compassionate use defense. The court's reasoning is that because the instant "relatively simple cultivation case generated lengthy expert testimony on the issue of how many marijuana plants could reasonably be related to appellant's personal use," the court declined to hold that "Police officers make such a determination prior to arrest." This is not what the statute calls for. If police officers have probable cause to believe that there is an amount not reasonably related to the medical need for marijuana, they may arrest the suspect. This is the same standard as every other crime on the books and is the standard that the Fourth Amendment of the United States requires as well as Article 1, § 13 of the California constitution. These are factual determinations that police officers must make prior to arrest. The additional training that an officer requires to deal with this law is minimal. All that is required is that they receive some training on the law, which is not a significant additional burden. When confronted with possession or cultivation cases, where there is reason to believe that the Compassionate Use Act may come into play (such as a sign on the wall or a statement by the suspect), the only additional facts that officers must investigate are (1) the existence of a valid recommendation from a physician, (2) whether the suspect is a patient or primary caregiver of a patient, and (3) whether the amount of marijuana possessed or cultivated is reasonably related to the medical need. These are all factual determinations that can be made with relative ease. If the officer has probable cause to believe 'that any of these elements is missing, he may arrest the suspect. This is no different than enforcement of other criminal statutes where there are possibilities of an exemption or justification. The fact that litigation after arrest may generate lengthy expert testimony is not a valid reason to conclude that police officers are not qualified to make factual determinations prior to arrest.

The court of appeal then proceeds to endorse the fact that disparities in local enforcement of marijuana laws exist within the state. "That local communities will establish protocol for handling marijuana violation investigations under the Act is no different than local prosecutorial discretion regarding when to prosecute or when to seek the death penalty," the court noted. It is ironic that the area of criminal law most rife with constitutional questions, the death penalty, is the court's example of what is constitutionally acceptable. The court states that "[w]hile this may create some enforcement disparity between police agencies or counties, the simple answer is that this reality is no different than individualized resolution of 'current medical needs' made by jurors." The difference that the court fails to note is that t1iis decision allows police to arrest individuals even if the officers have reason to believe that the individual is conforming with the Act. This court grants them an "absolute right to arrest" anyone possessing or cultivating marijuana. Such questions will often never reach a jury because the district attorney will be forced to dismiss immediately upon learning the facts of the situation. There is no other criminal law in this state that allows police officers to arrest an individual when the officer has reason to believe that what the individual is doing is legal. What Respondent and the Court of Appeal endorses is a standardless statute that local law enforcement agencies are free to enforce in any way that they may determine, including completely ignoring the statute. This is clearly a violation of equal protection as well as a citizen's due process right to notice of what is legal under the Compassionate Use Act.

SUBJECT TO SEIZURE OF PROPERTY.

As both Respondent and the Court of Appeal have put forth the argument that patients attempting to comply with the Compassionate Use Act may only raise such a defense in court after arrest, it is necessary to address the serious constitutional implications that arise under such a misguided construction of the law. Respondent and the Court of Appeal are erroneous to assume the classification of the defense under the Compassionate Use Act as either an "immunity" or an "affirmative defense" would affect the arresting officers determination of probable cause to arrest. Under either categorization of the compassionate use defense, qualified patients and their caregivers still retain the basic right to be free from unreasonable searches and seizures that the Fourth Amendment guarantees.

Such an argument fails to recognize the constitutional protections that both the Fourth Amendment and Article I Section 13 of the California constitution provides for all citizens. The United States Supreme Court in Illinois v. Gates (1983) 462 U.S. 213 held that a determination of probable cause must be based on the "totality of the circumstances." That Court stated that " [p]erhaps the central teaching of our decisions bearing on the probable cause standard is that it is a 'practical, nontechnical conception." Gates at 23 1 , citing Brinegar v. United States (1949) 33 8 U.S. 160, 176.

-That Court further noted "[a]s early as Locke v. United States, 7 Cranch 339, 348 (1813), Chief Justice Marshall observed, in a closely related context:

Clearly, if there are facts present and obvious to law enforcement officers, such as the existence of a physician's recommendation approving the use of marijuana for medical use, officers cannot, as Respondent would argue, simply ignore such evidence, make an arrest and allow the courts to sort it out later. Such would not be consistent with common sense notions of probable cause to believe that the suspect is acting in violation of the law in some way. There must, as the Gates court stated, be a "fair probability that contraband or evidence of a crime will be found in a particular place." Gates at 238.

"It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense." Michigan v. DeFillippo (1979) 443 U.S. 31, 36; citing Adams v. Williams (1972) 407 U.S. 143, 148-49; Beck v. Ohio (1964) 3 79 U.S. 89, 91 (emphasis added). "Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula fro the determination of reasonableness. Each case must be decide on its own facts and circumstances [citations] - and on the total atmosphere of the case." People v. Rosales (1987) 192 Cal.App.3d 759, 765. "Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." People v. Price (1991) 1 Cal.4th 324,410; citing People v. Harris (1975) 15 Cal.3d 384, 389 (emphasis added).

"Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer's knowledge at the time of arrest constituted adequate cause." People v, Price (199 1) 1 Cal.4th 324,409.

Any construction of law which allows an officer to arrest any person who possesses or cultivates marijuana, despite having knowledge that such person is doing so legally under the Act, violates the fundamental precepts of Fourth Amendment jurisprudence. "It is an established principle of statutory construction that when two alternative interpretations are presented, one of which would be unconstitutional and the other constitutional, the court will choose that construction which will uphold the validity of the statute and will be constitutional." Espinosa v. Superior Court, supra, at 352-53, quoting Franklin v. Municipal Court, supra at 896.) Clearly Respondent's interpretation is constitutionally-flawed. Thus, the only interpretation that comports with the constitution must be correct interpretation of the statute.

Courts in other jurisdictions have also addressed the issue of the probable cause determination when confronted with a possible defense. The court in Wallace v. City of Albany (2001) 725 N.Y.S. 2d 728, 730 (emphasis added) stated that police must have "probable cause to believe that plaintiff committed some crime." While it is not required that police establish "an awareness of a particular crime" it does require police to establish that "some crime may have been committed." Id. "Probable cause to arrest exists under federal law when the authorities have knowledge or reasonably trustworthy information sufficient to war-rant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Reese v. Garcia (2000) 115 F.Supp. 2d 284, 289. Probable cause "comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred." State of Connecticut v. Barton (1991) 594 A.2d 917, 928. Probable cause is determined by analyzing and determining if "factual and practical considerations of every day life which could lead a reasonable person to believe that there is a probability that an illegal act has occurred or is about to occur." U.S. v. Strickland (6 th Cir. 1998) 144 F.3d 412, 416. Thus, to simply allow officers to ignore indicia that a suspect is acting under the protection of the Compassionate Use Act (as Respondent argues for and the Court of Appeal held) and arrest obvious medical marijuana patients would be violative of fundamental Fourth Amendment jurisprudence.

In any specific case, an officer may make an arrest if he has probable cause to believe that an individual is possessing more marijuana than is required for personal use under the circumstances. This is a factual determination to be made by the officer based on objective indicia. Obviously, this will depend on the nature of the physician's recommendation as well as the amount of marijuana involved. This determination is not any different than countless other officers' determinations that must be made when charging a suspect with any crime. For example, an officer at the scene must make a factual determination when charging a suspect with possession for sale of a drug. He often, merely decides that the quantity of drugs found exceeds what would normally be for personal use. He then charges the suspect with possession for sale instead of simple possession. The officer would likely be instructed or trained prior to making such determination what are usual amounts that drug users currently use and then make a determination accordingly. The officer is required to make the same determination under the Compassionate Use Act. lf he finds a suspect in possession of a quantity of marijuana that exceeds its purported purpose (i.e. an amount not reasonably related to a patient's medical needs), then he may arrest that suspect for simple possession or possession for sale. Thus, in order to comply with the Act, officers must receive additional training as to reasonable amounts that are necessary for medical use.

The argument that all medical marijuana users are subject to arrest is absurd given the simple determinations which an officer must make to decide whether or not to arrest an individual. The question of whether or not the Act provides an affirmative defense or an immunity from prosecution does not affect the officer's on-the-scene determination. Respondent gets bogged down with arguments about complications that law enforcement might have in enforcing existing marijuana laws and how they are affected by the Compassionate Use Act. But is it really so difficult to enforce? How is it any different than any other activity that by law requires a permit? Are all hunters subject to arrest *in all circumstances just because it may. take minimal additional investigation by a law enforcement officer to ascertain whether or not a valid hunting license had been obtained? The same is true for firearms. If an officer finds a firearm in a person's home, that person is not immediately subject to arrest and only allowed to present evidence of a gun permit later in court as an affirmative defense. These fact patterns are ridiculous, but no more so than a legitimate medical marijuana user following the law to the letter, yet finding himself subject to arrest for his actions, only to be able to assert his defense later in court. Is it so hard to fathom that voters intended that law enforcement officers undertake a minimal amount of additional investigation when dealing with the Compassionate Use Act? When confronted with a situation where the officer has reason to believe that a suspect is acting pursuant to the Act, the officer would merely have to make the following factual determinations: (1) is there a valid recommendation from a physician? (2) is the suspect a patient or a primary caregiver of a patient? and (3) is the amount of marijuana reasonably related to the medical need? These are all simple factual determinations and the amount of additional training required of officers is minimal.

Under respondent's construction of the statute, a hypothetical patient who (1) alerts local law enforcement to his or her medical marijuana use or cultivation, (2) provides a copy of a valid physician's recommendation, (3) provides the physician's phone number and address for verification, (4) invites law enforcement into his or her home to view the plants, (5) openly complies with all of the requirements of the Act, and (6) possesses the minimum amount of marijuana as is possible would still be subject to arrest.

Clearly, this hypothetical person must be protected from arrest and seizure of his or her property under the Compassionate Use Act. If it was not the intent of the voters to protect this person, then whom did they possibly mean to protect? It is not enough to say that this person has a defense in court. It is unreasonable to subject all of those seriously ill Californians whom this statute was enacted to protect to the indignities that come with arrest and seizure of their property. This is not what the voters intended, yet this is the effect that Respondent's position would have on the state of the law in California today.

For the foregoing reasons, Respondent and the Court of Appeal adopt a construction of the Compassionate Use Act that is clearly in conflict with the rights of all citizens under the Fourth Amendment and Article 1, § 13 of the California Constitution. Thus, the decision of the Court of Appeal must be reversed.