UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

LOREN and VALERIE KRUESI, 6: 14-CV-1465-TC 

Plaintiff, 

v. FINDINGS AND RECOMMENDATION 

LINN COUNTY, a municipal corporation; and 

BRUCE DA VIS; DA YID SNIP PEN; and 

RICK CAMPBELL, individuals in their 

individual capacities, 

Defendants. 

COFFIN, Magistrate Judge: 

This case implicates the Oregon Medical Marijuana Program (OMMP) and its juxtaposition with 

state legislation that otherwise criminalizes the manufacture and distribution of marijuana. Plaintiffs 

are residents of rnral property in Linn County, Oregon which they registered as a medical marijuana 

grow operation with OMMP, which is charged with administering the Oregon Medical Marijuana 

Act (OMMA) . The Act recognizes the medicinal value of marijuana (ORS 475.300), creates a 

mechanism for registering marijuana grow sites (ORS 475.304) and medical marijuana users and 

excepts registered growers and users from criminal prosecution if they are in compliance with the 

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Act (ORS 475.309). The immunity from criminal prosecution also applies to those whose 

applications have been submitted to OMMP and are pending action by the administrative agency. 

If an application is ultimately denied by OMMP, the immunity lapses when notice of the denial is 

received by the applicant. ORS 475.309(9). 

On September 12, 2012, Linn County law enforcement officials executed a search warrant that 

had been issued by a Linn County Circuit judge on plaintiffs' property, which resulted in the seizure 

of a portion of plaintiffs' marijuana grow and subsequent filing of state criminal charges against 

Loren Kruesi. The criminal charges have since been dismissed and plaintiffs have filed this civil 

rights action pursuant to 42 U.S.C. §1983 challenging the validity of the wal1"ant and search, 

asserting violations of their 4th Amendment rights, and seeking damages and injunctive relief. 

Before the court is defendants' motion for summmy judgment on all of plaintiffs claims. 

Legal Standard 

Federal Rule of Civil Procedure 56 allows the granting of summary judgment: 

if the pleadings, the discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and that the movant is 

entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Libetty Lobby, 

Inc., 477 U.S. 242, 247-48 (1986). 

The movant has the initial burden of establishing that no genuine issue of material fact exists 

or that a material fact essential to the nonmovant's claim is missing. Celotex Corp. v. Catrett, 477 

U.S. 317, 322-24 (1986). Once the movant has met its burden, the burden shifts to the nonmovant 

to produce specific evidence to establish a genuine issue of material fact or to establish the existence 

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of all facts material to the claim. Id. ; see also, Bhan v. NME Hosp .. Inc., 929 F.2d 1404, 1409 (9th 

Cir. 1991); Nissan Fire & Marine Ins. Co., Ltd .. v. Fritz Cos., Inc., 210 F.3d 1099, 1105 (9th Cir. 

2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials 

in its own pleading," but must instead "set out specific facts showing a genuine issue of fact for 

trial." Fed. R. Civ. P. 56(e). 

Material facts which preclude entry of summary judgment are those which, under applicable 

substantive law, may affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes 

are genuine if they "properly can be resolved only by a finder of fact because they may reasonably 

be resolved in favor of either party." Id. On the other hand, if, after the court has drawn all 

reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not 

significantly probative," summary judgment may be granted. Id. 

Discussion 

The search warrant in this case was based largely on information obtained by law 

enforcement during a helicopter overflight of plaintiffs' property on August 30, 2012. From their 

vantage point, deputies observed and photographed two outdoor marijuana gardens on the premises 

and subsequently identified the site address from County records (35871 Jefferson Scio Drive, 

Jefferson, Oregon) . Detective Bruce Davis counted a total of 87 growing marijuana plants in the 

gardens and contacted Oi\i!J.\1P to leam whether the prope1ty was registered as a grow site, and was 

informed that the site was a registered grow site for 11 patients. As the OMMA authorizes 6 plants 

per patient, only 66 plants would have been pe1missible at the site for the number of patients on 

record with OMMP. 

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Davis thus concluded that the property was growing more plants than authorized and was not 

in compliance with the OMMA and applied for a warrant to search the premises for evidence of 

violations of state law pertaining to the manufacture and possession of marijuana.' 

As stated previously, defendants executed the wanant on September 12, 2012. As a result of 

the search of the premises, evidence was discovered with both exculpato1y and inculpatory 

implications for the plaintiffs. Thus, plaintiffs produced documentation of pending applications for 

patients which had not been approved by OMMP at the time the wa11'ant was issued. Deputies 

eventually dete1mined that the grow site was an authorized grow site for 15 patients. This translated 

into 90 authorized plants, or three more than the 87 described in the affidavit in support of the 

warrant. On the other hand, the search uncovered other gardens not observed in the overflight, 

increasing the total number of plants on the site to 95 (still over the limit, but by a smaller margin). 

The key claim by plaintiffs in this action is that the affiant (Defendant Davis) deceived the state 

judge who issued the warrant by making misrepresentations and omitting material infonnation in his 

applications. I find, however, that the affidavit was not misleading and that the issuing judge was 

adequately informed of all material information. 

The issuance of a search warrant is generally reviewed deferentially and should be upheld if 

the issuing judge has a substantial basis for concluding that probable cause existed based on the 

totality of circumstances. Ewing v. Citv of Stockton, 588 F.3d 1218, 1223 (9'h Cir. 2009). There 

'Although the defendants contend that the grow "violated Oregon and federal law" the 

application was for a state search warrant, was made to a state circuit judge, was premised on. the 

grow site containing more plants than pe1mitted under the Oregon Medical Marijuana Act, and 

the wa11'ant was executed solely by state law enforcement officers. Thus federal law, which does 

not provide a safe harbor for medical marijuana growers, is not implicated in this case. See, 

United States v $186, 416 in U.S. Currency, 590 F.3d 942 (9'h Cir. 2009). 

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is a presumption of validity with respect to the affidavit supporting the search warrant. Franks v. 

Delaware, 438 U.S. 154, 171 (1978). A search warrant is valid ifit states the place to be searched, 

the things to be seized, and is not constitutionally overbroad. United Stated v. Kynaston, 534 Fed. 

Appx. 624, 625 (9'h Cir. 2013). A misrepresentation based on an omission is material only where 

the omitted facts cast doubt on the existence of probable cause. Crowe v. County of San Diego , 

608 F.3d 406, 435 (9'h Cir. 2010). To survive summary judgment on a claim for judicial deception, 

a §1983 plaintiff must : 1) establish that the warrant affidavit contained misrepresentations or 

omissions material to the finding of probable cause, and 2) make a substantial showing that the 

misrepresentations or omissions were made intentionally or with reckless disregard for the truth. 

Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9'h Cir. 2011). Once he has probable cause, an 

officer is not ordinarily required to continue to investigate or seek fmiher corroboration. Ewing , 

588 F.3d at 1227. 

Plaintiffs' main quarrel centers on the fact that OMMP had a backlog in the processing of 

applications submitted by medical marijuana growers and patients and hat plaintiffs had 

applications in the system that had not been acted upon at the time Davis submitted his affidavit. 

However, Davis expressly included the following information in the affidavit: 

I know that the address of 35871 Jefferson Scio Drive, Jefferson, 

Oregon had twenty [sic] (21) more mature marijuana plants than 

lawfully allowed to have. [The OMMP employee] told me that 

OMMP is approximately five weeks behind on data ent1y for all new 

patients and changes to existing card holders. 

P. 9 of Affidavit for Search Warrant, attached to #32 (emphasis supplied) 

Moreover, previously in the Warrant Affidavit, Davis disclosed : 

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I know from my experience that sometimes the Oregon Department 

of Health Medical Marijuana division is behind in processing 

applications..... There have also been times that marijuana plants 

have been seen on property in excess of what OMMP stated was 

listed as a grow site for and the growers and/or patients have 

provided accurate paperwork for the excess marijuana .plants. 

Id. at p. 2 (emphasis supplied). 

Although plaintiffs may have preferred different language and even a different mode of 

investigation (i.e., a "knock and talk" as opposed to the execution of a search warrant) the fact is that 

the reviewing judge was folly informed that there was a backlog and that there could be additional 

applications pending that OMMP had yet to process and which would have a bearing on whether 

the grow site was or was not in compliance with the OMMA. 

Plaintiffs' preference for different investigatory approaches, such as a "knock and talk" 2 is not 

constitutionally required and has the obvious downside of ale11ing the grower to a criminal 

investigation in advance of having any lawfol authority to enter the premises and seize evidence of 

illegal activity. 

It is ironic that the dilemma presented here is bom of the State's implementation of a program 

to decriminalize the growing, distribution, and possession of marijuana on behalf of medical 

marijuana patients_. Had this been a federal search warrant, obtained from a federal judge and 

executed by federal agents to seize marijuana grown in violation of federal law, the OMMA would 

2

The OMMP database tracks g1:ow sites by street address. Growers, however, are 

required to have the names and pape1work for patients they are growing for at the site. Hence, a 

"knock and talk" could arguably clarify whether the growers had applications pending for new 

patients with OMMP. 

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be legally irrelevant.3 And even though federal law is not implicated in this civil rights action, it 

cannot be ignored or dismissed entirely from the exercise of analyzing the State's program and 

attendant enforcement mechanisms. In essence, Oregon is establishing and overseeing a marijuana 

medication system in a legal environment which has a tradition of prohibiting the drug's cultivation 

and distribution. There is a potential for abuse of the OMMP should registered grow sites produce 

plants in excess of the number permitted for approved patients with the surplus being sold on the 

black market. In analogous settings, courts have recognized that Fourth Amendment 

"reasonableness" requirements for searches and inspections can be met even without judicial 

warrants and showings of probable cause in "closely regulated " industries where there is a 

substantial government interest in the regulatory scheme. See, Colonnade Catering Corp. V. United 

States, 397 U.S. 72, (1970) (upholding warrantless search and seizure pursuant to regulations 

governing the liquor industry); United States v. Biswell, 406 U.S. 311 (1972) (no constitutional 

violation when a business which sold firemms was subject to inspections and seizure without a 

wmTant issued by a judicial officer upon probable cause) ; United States v. Argent Chemical 

Laboratories Inc., 93 F.3d 572 (9'" Cir. 1996) (applying Colonnade-Biswell exception to search 

warrant requirement for closely regulated industries to uphold seizure of veterinary drugs from a 

manufacturer pursuant to in rem wanant issued without intervention of judicial officer or showing 

of probable cause). 

3 As an aside, I note that at the hearing on the motion for summary judgment counsel for 

plaintiffs refened to marijuana plants being grown pursuant to the OMMA as "protected plants." 

Technically, however, the OMMA does not protect plants, it excepts or immunizes growers from 

state criminal prosecution if they are in compliance with the Act. It does not, nor could it, 

immunize the growers from federal prosecution. 

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All this is to say, as the courts have recognized, that persons who engage in pervasively 

regulated industries have a diminished expectation of privacy. New York v. Burger, 482 U.S. 691, 

702 (1987); United States v. Argent Chemical Laboratories, Inc., supra, at 575. And it only adds to 

that diminished expectation to observe that federal law conflicts with the OMMA and OMMP and 

that all that protects Oregon medical marijuana growers (even those who are in compliance with the 

OMMA) from federal warrants and seizures is executive discretion by federal authorities in the 

enforcement of federal law. As noted in a document entitled Memorandum For All United States 

Attorneys authored by Deputy Attorney General James M. Cole, dated August 29, 2013: 

The Department's previous memoranda specifically addressed the 

exercise of prosecutorial discretion in states with laws authorizing 

marijuana cultivation and distribution for medical use. In those 

contexts, the Department advised that it likely was not an efficient use 

of federal resources to focus enforcement efforts on seriously ill 

individuals, or on their individual caregivers. In doing so, the 

previous guidance drew a distinction between the seriously ill and 

their caregivers, on the one hand, and large scale, for profit 

commercial enterprises on the other, and advised that the latter 

continued to be appropriate targets for federal enforcement and 

prosecution. In drawing this distinction, the Department relied on the 

common-sense judgment that the size of a marijuana operation was 

a reasonable proxy for assessing whether marijuana trafficking 

implicates the federal enforcement priorities set forth above. 

As explained above, however, both the existence of a strong and 

effective state regulatory system, and an operation's compliance with 

such a system, may allay the threat that an operations's size poses to 

federal enforcement interests. Accordingly, in exercising 

prosecutorial discretion, prosecutors should not consider the size or 

commercial nature of a marijuana operation alone as a proxy for 

assessing whether marijuana trafficking implicates the Department's 

enforcement policies listed above. Rather, prosecutors should 

continue to review marijuana cases on a case-by-case basis and weigh 

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all available infonnation and evidence. including, but not limited to, 

whether the operation is demonstrably in compliance with a strong 

and effective state regulatory system. A marijuana operation's large 

scale or for-profit nature may be a relevant consideration for assessing 

the extent to which it undermines a particular federal enforcement 

policy. 

As with the Department's previous statements on the subject, this 

memorandum is intended solely as a guide to the exercise of 

investigative and prosecutorial discretion. This memorandum does 

not alter in any way the Department's authority to enforce federal 

law, including federal laws related to mariiuana, regardless of state 

law. Neither the guidance herein nor any state or local law provides 

a legal defense to a violation of federal law, including any civil or 

criminal violation of the CSA. Even in jurisdictions with strong and 

effective regulatory systems, evidence that pmiicular conduct 

threatens federal priorities will subject that person or entity to federal 

enforcement action, based on the circumstances. 

(Emphasis supplied). 4 

I point all this out for a reason - plaintiffs urge semantical nuances in the reading of the search 

warrant affidavit herein and the substitution of their edited version in advocating a "judicial 

deception "basis to invalidate the warrant. They also complain about the OMMP database being 

limited to addresses of grow sites, not being amenable to searches by names of patients whose 

applications are pending, and being less than 100% cmTent because of a backlog in the processing 

of applications. However, the affidavit did not mislead or deceive the judge. The backlog was 

disclosed as was the fact that there had been instances when growers produced more accurate 

paperwork during searches that demonstrated compliance with OMMP. The issuingjudge was fully 

advised of any defects in the database and could have insisted upon further investigation before 

4

Memorandum from James M. Cole, Deputy Attorney General, for all United States Attorneys (August 29, 

2013) (available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf). 

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issuing the wairnnt. There was no deception in the information submitted to him. The State could 

have constitutionally implemented an enforcement mechanism that does not even require judicial 

wanants or showings of probable cause to inspect registered grow sites to ensure compliance with 

the OMMA and OMMP. That compliance is instead enforced through the traditional method of 

judicial warrants based on probable cause to believe a criminal violation of the State's marijuana 

code is being committed confers greater protection on the growers than the Constitution requires. 

I decline to expand that protection even further by engaging in plaintiffs invitation to edit and rewrite the affidavit to reflect the language their counsel would have submitted on their behalf. 

Plaintiffs also contend that the helicopter flight over their property was at a low elevation such 

that their 4'h Amendment privacy interests were violated and that Davis made a false statement in 

his affidavit when he avened that "digital photographs of the stmounding property and the 

marijuana plants [were taken when] we were flying in excess of eight hundred (800) feet above 

ground level." In support of this contention, they submit the declaration of Joshua Cohen, an 

engineer and visual presentation expert, who analyzed the photographs taken during the overflight 

and selected 3 of the photographs to create a diagram in which he opined that the helicopter was at 

494 feet, 373 feet, and 366 feet when the photos were taken. 

Even assuming that Cohen's calculations are conect, such neither shows that Davis' statement' 

was intentionally or recklessly false, nor that it was material to the issue of probable cause. 

The court takes judicial notice that FAA regulations generally limit fixed winged aircraft to an 

elevation of 500 feet or higher over sparsely populated areas' except when landing or during take 

'The minimum is 1,000 feet over congested areas. 

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off, but do not apply those limits to helicopters, instead allowing them to fly at lower than 500 feet 

if their operation is conducted without hazard to person or property. 14 CFR 91.119. The 

photographs ·demonstrate that plaintiffs' property is rural, open farmland with a few structures. 

There is no evidence that the elevations calculated by plaintiffs' expe1i would support a finding that 

the operation of the helicopter presented some sort of hazard to persons or property below. Nor can 

I conclude that occupants of a helicopter, flying at an altitude specifically authorized by FAA 

regulations, unconstitutionally violate the privacy interests of property owners below. See Florida 

v. Riley, 488 U.S. 445, 451 (1989). (finding helicopter flight surveillance at 400 feet elevation does 

not violate Fou1ih Amendment). This is open farmland, and there was no incursion into the home 

or curtilage. Although plaintiffs cite Van Strum v. Lawn, 927 F.2d 612 (9'h Cir. 1991) , an 

unpublished memorandum opinion, forthe proposition that low level overflights may support a civil 

rights claim for invasion of privacy, unpublished dispositions and orders of the Ninth Circuit Comi 

of Appeals are not precedent. C.A. 9 Rule 36-3(a). Even ifit could be precedent, the facts therein 

are readily distinguishable. As the panel in that case observed, "if appellants' allegations are taken 

as true, appellees' operation of a helicopter 100 feet over their house for a period of one-half hour 

in a manner which could induce fruit to fall, animals to stampede and injure themselves, and 

considerable psychological trauma on children, clearly constitutes a violation of appellants fourth 

amendment rights." No such egregious facts are present here. At best, plaintiffs' own expert 

calculates elevations consistent with that in Florida v. Riley, supra . Thus, the minor disparity 

between Davis' estimate and Cohen's is simply not material to the existence of probable cause. 

Next, plaintiffs contend that defendant Davis' affidavit is deficient in its description of 

the location of the property to be searched. In his affidavit, Davis described the prope1iy as follows: 

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The property, cmiilage, residences, outbuildings, recreational vehicle 

and vehicles located at 35871 Jefferson Scio Drive, Jefferson, Linn 

County, Oregon. More specifically, the residence is described as a 

triple wide manufactured home which is painted off white with brown 

trim. There is an elevated porch leading to the front door on the south 

side of the residence. There are two outbuildings and a portion of a 

fonner residence on the prope1ty. There are three recreational 

vehicles and several other vehicles parked on the property. There is 

a metal gate across the driveway with a sign that says, "Posted No 

Trespassing" in red letters. There is a mailbox with the mimbers 

"35871" posted on it across Jefferson Scio Drive from the residence. 

The Linn County Assessor's Office has this prope1ty listed as being 

account number 34930 and map number 10S02W080000300. 

Plaintiffs essentially argue that Davis should have added language to the effect that the three 

recreational vehicles "may be separate residences." 

But plaintiffs cite no evidence that Davis had inf01mation that the owners of the subject property 

were leasing the RVs to tenants, the property was not subdivided, the property at issue was a single 

lot with one mailing address and one pemianent home structure. Any inference that the RVs "may 

be" occupied by renters is as apparent to the judicial officer as it is to the detective. There was no 

judicial deception in Davis' description. Furthermore, as defendants point out, generally "a wan·ant 

is valid when it authorizes the search of a street address with several dwellings if the defendants are 

in control of the whole premises, if the dwellings are occupied in common, or if the entire prope1ty 

is suspect." United States v. Alexander, 761 F.2d 1294, 1301 (9'h Cir. 1985). Here, the entire 

prope1ty was a registered grow site and the RVs were structures on the site. Furthe1more, if there 

were tenants in the RVs that were not affiliated with the grow operation of the plaintiffs, it is they, 

and not plaintiffs, whose privacy interests were affected. Plaintiffs have no standing to asse1t any 

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4th Amendment claims on behalf of any occupants of RVs on the prope1iy other than themselves. 

Alderman v. United States, 394 U.S. 165, 174 (1969). 

Finally, plaintiffs bring claims under Monell v. Dept. of Soc. Serv. of City ofNew York, 436 

U.S. 658 (1978) against Linn County based on an alleged policy of failing to investigate and include 

material information in the search wa1Tant affidavit and an alleged policy of failing to adequately 

train its detectives in how to conduct marijuana investigations. 

In view of my finding that no constitutional violation has occu1Ted, there can be no Monell 

liability against Linn County. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Palmerin 

v. City of Riverside, 794 F.2d 1409, 1414 (9'h Cir. 1986) ("absent anyconstituional violations by the 

individual defendants, there can be no Monell liability"); Segal v. City of New York, 459 F.3d 207, 

219 (2d Cir 2006) ("Monell does not provide a separate cause of action for the failure by the 

government to train its employees; it extends liability to a municipal organization where that 

organization's failure to train, or the policies or customs that it has sanctioned, led to an independent 

constitutional violation.") Accordingly, the Monell claims fail for lack of an underlying 

constitutional violation. 

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Conclusion 

For the reasons, set f01ih above, defendants' motions (#25 and #30) for summary judgment should 

be allowed and this action should be dismissed. 

DATED this l_l _dayofSeptember, 2015. 

THOMAS M. COFFIN 

United States Magistrate Judge 

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