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Jim Kenyon: Detecting an Odor in Lebanon Pot Busts

Sunday, May 10, 2015
Shortly before 1 a.m. on a recent Saturday, Tom and Kari Orkney were awakened by a knock on the door to their second-floor apartment in Lebanon. Standing on the other side were two or three Lebanon police officers.

While responding to a “domestic issue” in another apartment, police “detected the strong odor of freshly burnt marijuana in the common hallway,” officer Adam Fisher wrote in his report of the April 25 incident.

Tom Orkney, a 58-year-old disabled Navy vet, acknowledged to police that a few hours earlier, in the privacy of his own home, he had smoked a little marijuana. But he had no reason to worry. Or so he thought.

He showed police the certificate issued in his home state of Washington that made it legal for him to purchase and use marijuana for medical purposes. He knew that New Hampshire had passed a medical marijuana law in 2013. It was his understanding that New Hampshire would honor licenses from other states.

Lebanon cops didn’t agree. They wanted to search the Orkneys’ one-bedroom apartment on School Street. If the couple didn’t sign a consent form, the cops said they would ask a judge to approve a search warrant.

Kari Orkney, 62, figured her husband had been through enough stress for one night. He’s not exactly the picture of health. At 5-feet-10, he weighs less than 150 pounds. He walks gingerly and speaks slowly in a muffled tone.

Orkney suffered a serious head injury nearly 40 years ago while serving overseas in the Navy, according to the military medical records the couple shared with me. The records show that, among other things, Orkney has a history of seizures and severe headaches. He also struggles with a mood disorder.

The Orkneys are both from Washington, but she had attended graduate school and worked in Vermont years ago. A big reason for moving to New Hampshire last year was so her husband could receive his health care at the VA Medical Center in White River Junction, Kari told me. “It’s one of the best VAs in the country,” she said.

After the Orkneys agreed to the “warrantless search” of their apartment, Lebanon police Sgt. Richard Norris, senior officer Jonathan Tracy and Fisher went to work. They searched the bedroom and living room. In the kitchen, they even looked inside an open cereal box.

Tom Orkney said he had less than a half ounce of marijuana that he kept in a box next to the 10 or so prescription medications that he takes every day for his mental and physical illnesses. “I told the police that I had bought the marijuana (at a dispensary) in Washington, but they ignored everything I had to say,” he said.

I asked Orkney to tell me a little about himself. He grew up in Raymond, Wash., a logging town 125 miles southwest of Seattle. He joined the Navy right out of high school, signing up as the war in Vietnam was winding down.

While his ship was docked at Yokosuka Naval base in Tokyo Bay, Orkney and a buddy went out for a night on the town. On their way back to the ship, they were jumped by a couple of local thugs. The “altercation,” as his Navy medical records described it, left him with a traumatic head injury.

Orkney received a medical release from the Navy and returned to Washington, where he earned a degree in computer science from Evergreen State College. He was a clerk with the U.S. Postal Service for eight years, but his medical records indicated that his mood disorder made it difficult for him to hold down a steady job.

“My head was all messed up,” he said.

Orkney hasn’t worked since 1996. Since then, the Orkneys have scraped by on his disability payments and a business website that she started. Kari Orkney sold the website for $15,000, money they used to make the move to New Hampshire.

Tom Orkney began using medical marijuana with a doctor’s permission in 2010. (It’s been legal in Washington since 1998.) Orkney saw marijuana as a benign alternative to Vicodin, a potentially addictive prescription painkiller that VA doctors had been giving him for years.

“With the marijuana, I can keep my mood swings under control,” he said. “It calms me down.”

The certificate that Orkney was issued by the state of Washington says the “medical use of marijuana is permissible for some patients with terminal or debilitating conditions.”

But it didn’t carry weight with the Lebanon cops. After arresting Orkney in his apartment, they led him outside, where he was handcuffed and placed in the back of a cruiser. At the police station, Orkney was charged with possessing a small amount of marijuana, a misdemeanor. New Hampshire is the only New England state yet to decriminalize small amounts of pot.

Before he could be freed, Orkney had to pay a $40 bail commissioner’s fee. At 3 in the morning, Kari Orkney picked up her husband and brought him home.

Last week, after reading the police report, I called Lebanon Police Capt. Tim Cohen, who serves as the department’s spokesman. I asked him why police thought it was necessary to knock on the Orkneys’ door in the first place. After all, the smell of marijuana was coming from a private residence and the only reason police knew about it was an unrelated call.

“At this point, marijuana is illegal in New Hampshire, therefore we have to deal with it,” said Cohen. “We are sworn to uphold the law.”

As we’ve seen in recent months, that’s the kind of zero-tolerance mentality that has alienated communities across the country. As I’ve reported before, Lebanon police made more than 200 arrests for possession of small amounts of marijuana last year. That’s about four a week, resulting in $100,000 in fines and fees for the state of New Hampshire.

After Orkney showed the cops his certificate from Washington, they could have walked away.

Why didn’t they?

For an out-of-state medical marijuana prescription to be valid in New Hampshire, “there’s special criteria that has to be met,” said Cohen. “We feel the criteria wasn’t met.” Because it’s a pending case, Cohen said, he couldn’t give the specific criteria that police thought Orkney had failed to meet.

I made a few calls. I learned that even though New Hampshire’s medical marijuana law has been around for two years, it’s being implemented at a glacial pace.

New Hampshire residents won’t be able to obtain state-issued I.D. cards to purchase and use medical marijuana until shortly before the state sets up its first dispensaries. The earliest that will happen is January 2016.

Until then, “there’s no legal protection for patients,” said Matt Simon, who heads up the New England office of the national Marijuana Policy Project. But he emphasized that cops can use their discretion. “It’s officer by officer,” he said.

Twenty-two other states, including Vermont, have passed medical marijuana laws. But in the eyes of some police departments, having permission from another state is not enough. Cops also want to see a doctor’s note that specifies the medical condition the marijuana was prescribed for.

If the condition isn’t on New Hampshire’s list, which is quite short, the patient can run afoul of the law. PTSD, for instance, is on the list in some states, but not New Hampshire’s. Traumatic brain injury is, though. Which means the medical records that Orkney showed me should suffice.

I talked with Michael Holt, who is the New Hampshire Department of Health and Human Service’s go-to guy for questions about the state’s medical marijuana policies. I told him about Orkney’s arrest. Currently, without any dispensaries open in the state, “this is not a regulatory issue,” he said. “This is a law enforcement issue.”

Orkney is scheduled to appear in Lebanon District Court on June. 8. If found guilty, he’s looking at a fine of $500, plus court fees. The Orkneys have talked with a lawyer about fighting the charge, but they will have to spend more than $500 in legal fees. And there’s no guarantee they’ll win in court.

“We’re going to be broke either way,” said Kari Orkney.

As for the “domestic issue” that brought Lebanon cops to the apartment building in the first place, Cohen said it turned out to be a “verbal disagreement.”

No arrests were made.

Jim Kenyon can be reached 

Valley News

24 Interchange Drive
West Lebanon, NH 03784


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