Jan 172006
Authors: Vimal Patel

Eric Footer didn't know he was breaking the law when he was in possession of a small amount of marijuana, and the fact that he allowed his car to be searched by police when he didn't have to is proof.

That's what Footer's attorney, Brian Vicente, will argue in a court case being closely watched by both sides of the marijuana debate.

Footer was pulled over in a Denver suburb in November after the city's voters approved Initiative 100, a city ordinance legalizing small amounts of marijuana.

The real estate consultant is set to be arraigned today and formally charged with possession of less than an ounce of marijuana and a pipe. He faces $200 in fines if found guilty.

Denver law enforcement officials, true to their word, continued prosecuting adults with small amounts of pot under state law after voters passed I-100, and the 40-year-old Footer was no exception.

Yet, Vicente says, Footer had a reasonable basis to believe that what he was doing was legal. After all, it was only two weeks earlier that Denver voters said so, and the election results had just been certified the day before.

"My client allowed police to search his car," Vicente said. "He volunteered to let them search his car because he didn't think he was breaking any laws.

Without probable cause, police can only search a suspect's vehicle with his or her permission. And in the case of Footer, who was pulled over for a traffic violation, no probable cause existed, Vicente said.

"We are calling on the prosecutors to drop the charges," said Mason Tvert, executive director of the pro-legalization SAFER. "They have prosecutorial discretion, we would hope they would be willing to use it and stop wasting resources preventing people from using something less harmful than alcohol."

The city attorney's office could not be reached before press time.

The defense of Footer, widely seen as a political test case, will primarily be three-pronged.

In addition to the mistake-of-law defense, Vicente said, two others will be presented: the choice-of-evils defense and the home-rule municipality issue.

The choice-of-evils defense, also known as the defense of necessity, essentially argues that an action can be justified if it can prevent a worse outcome.

"It's illegal for someone to go into someone else's house without permission," said Kirk Brush, a Fort Collins criminal lawyer not affiliated with the case, explaining the defense. "But if the house is on fire and I go in to rescue the dog, I'm breaking the law, but I'm committing an act that by doing it I avoided a greater evil."

Vicente will argue that Footer has had a history of alcohol abuse in his family, and that the harm resulting from alcohol abuse would produce more "evil" than that from pot use.

But the law can only be invoked when the evil trying to be avoided is an

"imminent injury" that isn't the result of the defendant's conduct. And alcohol abuse, which is a long-term problem and not immediate, probably won't cut it, Brush said.

But the 20-year defense attorney did say the other two arguments are not only plausible, but will be interesting to watch.

"I don't know the motivation of the defendant, but I will say, the mistake-of-law defense and the home rule question are not frivolous," he said. "That doesn't mean they're going to win, but there are legitimate arguments to raise.

Whatever the outcome, Vicente said he plans to spotlight the wastefulness of the illogical and wasteful battle to punish pot smokers.

"The fact they chose to send three police cars and five police (officers) to deal with this matter is utterly absurd," he said, adding that average pot prosecution costs taxpayers about $10,000.

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