Deal could be close in Fitzpatrick pot cases

A judge put a hold on a hearing on charges that a Havre medical marijuana provider violated conditions of her release while facing two sets of charges in Havre — and another in Oregon that a judge just dismissed — when attorneys on both sides asked for time to negotiate new conditions of release and a possible resolution to the charges.

State District Judge David Cybulski of Plentywood — the third judge in a 2012 case against Delaine Fitzpatrick, born in 1977, and the fourth in a set of charges filed against her in 2010 — vacated a hearing Monday convened on a state petition to revoke Fitzpatrick's release.

Both Fitzpatrick's attorney, Jeremy Yellin, and the prosecutor, Deputy State Attorney General Chad Parker, requested Cybulski give them some more time to negotiate conditions and a potential resolution of the case.

Meanwhile, an Oregon trial on charges filed against Fitzpatrick and Garrett Briere, also of Havre, has been canceled after a judge dismissed charges filed after the two were stopped for a traffic violation near Roseburg, Ore., and the law enforcement officer said he found 12 pounds of marijuana in the trunk of their car.

The state filed the petition in Havre to revoke Fitzpatrick's release in the 2012 case after she was stopped in Malta Jan. 16. The petition says she violated federal law in selling marijuana there to one of her patients, and state law and conditions of her release by not having her caregiver card in her possession and by not receiving a travel permit from Hill County law enforcement before leaving the area.

Monday's hearing was the latest event in a string of actions against Fitzpatrick and her sister, Malisa Fitzpatrick, born in 1982. Charges were filed in 2010 alleging the sisters illegally sold marijuana to an undercover agent on several occasions. New charges in 2012 allege the sisters made additional illegal sales of marijuana and other substances.

Judge Julie Macek, in November 2011, dismissed the 2010 charges, but then the Montana Supreme Court last December overturned that order and sent the case back to court.

Meanwhile, the judge presiding over the case in Douglas County Circuit Court in Roseburg against Delaine Fitzpatrick and Garrett Briere ordered charges dismissed against both after their attorneys successfully argued that evidence be suppressed.

Fitzpatrick and Briere were pulled over at 12:30 a.m. Pacific Time, Nov. 9, 2011, on I-5 for a minor traffic violation. The officer conducting the stop became suspicious that some criminal activity was going on, an Oregon court document says.

Fitzpatrick and Briere denied permission to search the vehicle, and a police dog was brought in. When the dog, Charger, alerted officers of the possibility of illegal substances, a search found about 12 pounds of marijuana in the trunk, the document said.

In the hearing in Havre Monday, Yellin argued that the judge should dismiss the petition to revoke, citing a 2009 memorandum from the U.S. Attorney General's office stating that federal law officers should not enforce federal laws covering marijuana if the transactions otherwise meet state medical marijuana laws, and that the other evidence was illegally obtained.

Yellin argued that, because Fitzpatrick is a bona fide medical marijuana caregiver who was making a sale to one of her patients, the Phillips County law enforcement officer had no reason to stop her. Even so, he argued, because the officer did not read Fitzpatrick her Miranda rights before questioning, any comments she made or evidence obtained — including her failure to have her marijuana caregiver card or a travel permit with her — is not admissible in court.

Cybulski said early during Monday's hearing that he did not find the petition to revoke "well taken."

But both sides requested the judge let them postpone disposition of the petition to revoke her release until they could do more negotiations on that petition, as well as a resolution to the underlying case.

A petition to revoke Fitzpatrick's release on the 2010 charges still is pending.

That petition was filed Feb. 13, some four weeks after the Phillips County officer questioned Fitzpatrick, and five weeks after the Jan. 9 Supreme Court issued its official order sending the case back to court.

Cybulski accepted jurisdiction in the case Jan. 25, after the state asked Macek to recuse herself.

The 2010 charges allege that the sisters illegally sold marijuana to an undercover agent who had a medical marijuana card — which he received after applying with an assumed name, using a driver's license with that false name — but was not their 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.

District Judge Julie Macek — who was the third judge in the case, after the Fitzpatricks twice asked judges to recuse themselves — dismissed the charges in August 2011, saying the state had used outrageous conduct in having a law enforcement officer illegally apply for a false driver's licence and medical marijuana card.

Last December, the Montana Supreme Court overturned that decision, saying that limited participation by police in illegal activities necessary for crime detection does not violate fundamental fairness or due process.

Two months after the state appealed Macek's order in the 2010 case, Delaine Fitzpatrick and Briere in November 2011 were arrested and charged in Oregon — the charges the Oregon judge just dismissed.

While the appeal and the Oregon case were pending, Delaine and Malisa Fitzpatrick were charged again in Havre following an undercover operation using confidential informants working with the Safe Trails Tri-Agency Task Force.

An April 18 search found more than 12.68 pounds of prepared marijuana and 44 marijuana plants, the documents said.