Two Havre sisters are headed back to court to face charges they broke state laws while acting as medical marijuana caregivers in 2010.
The Montana Supreme Court issued a unanimous decision Thursday reversing the order by Great Falls state District Judge Julie Macek dismissing charges against Delaine and Malisa Fitzpatrick and remanded the case back to court for further proceedings.
Macek, the third judge in the case, had ruled that the state used outrageous conduct in the investigation leading to the charges filed against the Fitzpatricks by the undercover agent illegally obtaining a false driver’s license and medical marijuana card.
“The court finds no authority for the proposition that there is frankly a good-guy exception to law enforcement in order to obtain what is required so that they can then attempt to get drugs under a false situation, ” Macek said when she made her ruling.
The Supreme Court disagreed, saying in a synopsis of its ruling, written by Justice Jim Rice, that the actions by the agent fit in with U. S. Supreme Court findings that “limited participation by police in illegal activities necessary for crime detection does not violate fundamental fairness or due process. ”
“Applying federal law, the Montana Supreme Court reversed (Macek’s order), holding that government action must be inherently immoral, such as rape, arson, or murder, or constituting engineering and direction of the criminal enterprise from start to finish, to be classified as ‘outrageous conduct, ’” the synopsis says.
In those cases, the Fitzpatricks are accused of selling marijuana to the agent, who was not their patient, on multiple occasions and also selling to him more than was legally allowed to sell to a medical marijuana patient. When their property was searched, officers found significantly more processed marijuana and marijuana plants than the sisters were allowed based on the number of their registered patients, the charges say.
The Supreme Court ruling will put the Fitzpatricks back in court with other cases still pending.
Delaine Fitzpatrick and Garrett Briere, also of Havre, are scheduled to go on trial in Roseburg, Ore., Feb. 5 on charges that in November 2011 police found 12 pounds of marijuana in the car they were driving when stopped for a traffic violation outside of Roseburg.
New charges were filed against the sisters this year, alleging they sold marijuana and illegal substances to a Tri-Agency Safe Trails Task Force informant who was not a medical marijuana patient during an undercover investigation from Dec. 17, 2011, through April 17, ending with drug task agents serving a search warrant on their property April 18.
Delaine Fitzpatrick, born in 1977, was charged with 11 felonies stemming from the investigation. Malisa Fitzpatrick, born in 1982, was charged with seven felonies.
Judge David Cybulski of Plentywood, the third judge in the case, canceled a Nov. 5 trial date in October, saying in his order that when the prosecution and defense were ready to proceed, a new trial date could be set.
The charging document says that the informant purchased marijuana, “kief” or hashish, and “spice, ” a name for a synthetically made marijuana substitute.
The April 18 search found more than 12.68 pounds of prepared marijuana and 44 marijuana plants, the documents said, and also found hashish, or kief, and marijuana-infused butter, which the defendants are not registered to possess, the documents said.
The search also found a handgun, which officers seized, and $36,601.94, which also was seized. $400 of that was identified as being used during the informant’s purchases, the documents said.
The amounts of marijuana the charging documents say was seized was more than the Fitzpatricks would be allowed to possess under either the revisions to the Montana medical marijuana laws passed by the 2011 Legislature or under the original 2004 law.
