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Rogue Cop "borrows" MMJ card to bust Clinic

  1. 80sbaby
    Dealing Charges Dropped
    Man sold pot to card holder

    By Dana M. Nichols
    Record Staff Writer
    February 01, 2011 12:00 AM

    SAN ANDREAS - Prosecutors have dropped drug dealing, cultivation and possession charges against a medical marijuana advocate in a case in which a Calaveras County sheriff's deputy used a legitimate medical marijuana card to induce the man to sell the drug.

    Court records show that Jay R. Smith, 37, pleaded no contest Friday to a single charge of aiding and abetting another person to commit a felony.

    Smith was sentenced to pay a $160 fine and serve 90 days in jail but will not be subject to probation. The plea bargain means he will be able to continue his work advocating for medical marijuana patients, Smith said.

    Smith's arrest Jan. 4, 2010, prompted protests by medical marijuana users and providers. At the time, Smith was operating K Care Collective, a medical marijuana vendor.

    Smith and court statements by law enforcement officers agree on the basic details of what happened: Calaveras County Sheriff's Deputy Steve Avila posed as a legitimate medical marijuana user named Robert Shaffer of Ione and contacted Smith seeking to buy marijuana.

    Avila had gained possession of Shaffer's medical marijuana identification card in late 2009 during an earlier drug case against Shaffer.

    Smith said that when he called Shaffer's doctor, Dr. Philip A. Denney of Carmichael, the card proved to be legitimate. So he agreed to sell marijuana to Avila, not knowing that the officer had borrowed Shaffer's identity.

    Both Denney and Shaffer both later objected that they had not consented to Avila's use of the card and did not know of Avila's plans.

    Smith reportedly delivered the marijuana to the man he thought was Shaffer in the Valley Oaks Center parking lot in Valley Springs.

    Then-Sheriff Dennis Downum said meeting someone in a parking lot for a sale is not within the guidelines for legal medical marijuana.

    Prosecutors agreed and pressed the case.

    Smith said he pleaded no contest to save money. He said he had already spent $45,000 on attorneys, and going to trial would cost an additional $12,000, far more than the $160 fine in the plea bargain.

    Court documents did not indicate who the other person was who committed a felony allegedly aided by Smith.

    "The charge is a trade-off. There was nothing discussed in there about who that person was. And Shaffer had nothing to do with my case," Smith said.

    Deputy District Attorney Seth Matthews, the prosecutor who signed the plea agreement, was out of the office Monday afternoon and unavailable for comment.


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