October 25, 2015 - 12:40 pm
A former Las Vegas woman claims she and a guest were falsely imprisoned in 2013 after police searched her home and illegally confiscated her supply of medical marijuana.
Courtney Rogalski, a medical marijuana patient who now lives in Canada, and California resident Westley McNeal filed a civil rights lawsuit in August against the Metropolitan Police Department and several officers. In September, the defendants transferred the case from Clark County District Court to U.S. District Court.
Attorney Craig Anderson, who is representing Metro in the litigation, could not be reached for comment.
According to the lawsuit, Las Vegas police detectives searched Rogalski’s home on Aug. 30, 2013, with a warrant signed by Justice of the Peace Cynthia Cruz.
The detectives found 382 grams of marijuana, or about 13 ounces, and 32 marijuana plants. Rogalski was arrested and charged with two felonies: possession of a controlled substance and possession of a controlled substance with intent to sell.
“Ms. Rogalski, at the time of her arrest, held a valid medical marijuana card and had a valid medical marijuana waiver which allowed her to have in her possession, custody and control 15 ounces of usable marijuana and 49 marijuana plants,” according to her lawsuit.
Without such a waiver, Nevada law limits cardholders to 2.5 ounces of usable marijuana and 12 plants.
“The malicious prosecution against plaintiff Rogalski was dismissed because she was acting within the law, was a registered medical marijuana patient with a valid medical marijuana card and a valid medical marijuana waiver,” according to the lawsuit. “She did not exceed the amounts contained in her medical marijuana waiver and this fact was not disputed by the defendants.”
According to the lawsuit, Detective Jeffrey Tabor authored the search warrant, which indicated that he established surveillance in May 2013 at a hydroponics business and watched as a 50-pound carbon dioxide tank was loaded into a vehicle registered to Rogalski.
About three months later, Tabor compared the power use at Rogalski’s home with three other homes in her gated community and found her home used an average of 3,698 kilowatts more per month than houses the same size.
In addition, Tabor drove past Rogalski’s residence on Aug. 27, 2013, and noticed that the windows on the east side of the home were covered with white plastic.
Tabor’s affidavit in support of the search warrant “is approximately 10 pages long and contains numerous paragraphs that have absolutely nothing to do with the criminal case” involving Rogalski, according to the lawsuit, which names Tabor as a defendant.
The search warrant also noted that Rogalski had a valid medical marijuana card and that she was legally allowed to possess and cultivate marijuana. And because Rogalski had a valid card, according to the lawsuit, police “had no reason to arrest a guest found in her house.”
“There was no controlled buy in the underlying criminal case, there was no odor or smell of marijuana coming from the residence, there was no foundation for the power comparison analysis and as can readily be seen after a reasonable review of the search warrant affidavit, there was absolutely no probable cause to support the issuance of a search warrant in the criminal case,” the lawsuit alleges.
The fact that Rogalski may have had plastic covering her windows “is of no consequence,” according to the lawsuit, which notes that Nevada law “specifically provides that legal marijuana use or cultivation cannot be exposed to public view.”
In an answer to the lawsuit, filed Wednesday, the defendants argue that they “acted in good faith belief that their actions were legally justifiable” at all times.
Attorney Cal Potter III, who represents Rogalski and McNeal, argues that Las Vegas police were not properly trained about the requirements of Nevada’s medical marijuana laws and “didn’t seem to care.”
The lawsuit claims Rogalski, who has chronic osteoarthritic problems, “was 100% within her rights to possess the marijuana and the plants in this case and the detectives should not have ripped up and thrown away her medical marijuana waiver.”
According to the lawsuit, police illegally confiscated Rogalski’s legal growing equipment and marijuana, then destroyed her property. The lawsuit further alleges that McNeal was arrested without probable cause and that the Clark County district attorney refused to prosecute him.
After McNeal’s release, according to the lawsuit, police “continued to follow and harrass” him.
Contact reporter Carri Geer Thevenot at email@example.com or 702-384-8710. Find her on Twitter: @CarriGeer