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Medical marijuana: Attorney general wants to revive rejected case against Frank Marzano

In July, attorney Rob Corry outlined his appeal on behalf of Frank Marzano, who was convicted of marijuana charges in 2007 after a search for a fugitive turned up medical marijuana. Two weeks ago, the Colorado Court of Appeals tossed the Marzano case on illegal-search-and-seizure grounds. But John Suthers isn't surrendering.

The petition for rehearing the Frank Marzano case was filed by the Colorado Attorney General's Office on August 9 -- and Corry seems mystified by the rationale.

"The entire argument is essentially that Frank Marzano was a trespasser" in the home where he was staying -- and growing -- at the time of his arrest, Corry says. Why? "Because he didn't immediately produce a rental lease for the house when the police showed up.

"Honestly, I'm not sure what to say about that," he acknowledges. "I'll bet if you went around to people renting homes in America, at least 75 percent of them couldn't present a lease at the doorstep if a cop asked them for it. In fact, if the police came to my office, I doubt if I could present a lease proving that I have a right to stay in this office -- at least not right away."

The AG's petition claim is problematic for several reasons, Corry believes. "Keep in mind that the government is the one that must prove the exception to the view that warrantless searches are unconstitutional. It's not my client's job to disprove it."

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Besides, Marzano "was convicted of knowingly cultivating on land he was occupying. Over and over again in the trial, the district attorney produced reams of evidence about his occupancy of the home: his clothes were there, bills were sent to him there. There was no dispute that he legitimately lived there, and he wasn't charged with a trespassing offense."

Is Suthers, through his subordinates, still chasing after Marzano because the Court of Appeals' ruling could prove precedent-setting? Corry doesn't think so. "The opinion wasn't published, which I was a little disappointed in -- and an unpublished opinion can't really be cited as binding legal precedent."

As for other possible reasons for the filing, Corry declines to speculate. But he confirms he'll be completing a response in the coming days, adding, "I feel good about the Court of Appeals' opinion and their ability to evaluate this petition for rehearing. And I'm confident the court will reject it."

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