Shona Banda, a Garden City mom who faces five charges related to marijuana use, appeared in court for the first time on Tuesday.
Those charges came after her 11-year-old son made comments about Banda using pot during an anti-drug program in his fifth-grade class at Bernadine Sitts School.
Eleven days after the incident, Garden City police and the Department for Children and Families questioned Banda’s son at school and raided Banda’s home in Garden City. Authorities took her son away and put him in protective state custody.
Curtis Jacobs, Finney County court administrator, said Banda’s first-appearance court records were still being processed as of Tuesday afternoon but should be released Wednesday.
Banda’s attorney, Sarah Swain, could not be reached for comment Tuesday. In an interview Monday, Swain said Banda made cannabis oil from pot in her home to treat her Crohn’s disease.
Swain said she plans to defend Banda with two strategies. The first, she said, will be to challenge the constitutionality of how police officers and DCF officials obtained evidence in the case.
The second strategy, she said, will be to challenge the classification of marijuana as a Schedule I drug.
Banda now faces five charges. Three are felonies: possession with the intent to distribute a controlled substance within 1,000 feet of school property, unlawful manufacture of a controlled substance and possession of drug paraphernalia to cultivate less than five plants. The other two charges are misdemeanors: endangering a child and possession of drug paraphernalia.
Richard Levy, University of Kansas J.B. Smith distinguished professor of constitutional law, said he would be interested in the state’s evidence against Banda in its custody case.
“I think it would be somewhat excessive to say all parents who use marijuana should lose custody of their children,” Levy said.
He said that under the due process clause, parents have a fundamental right to the custody and care of their children. That means the state would need especially strong justification for denying Banda custody of her son.
“Marijuana is illegal, so there’s a crime that’s committed, but not all crimes necessarily mean a parent is unfit,” Levy said. He added: “There are people who use marijuana for medicinal or recreational use, and not all of those parents abuse or neglect their children.”
Swain, Banda’s lawyer, said Monday that Banda’s son is now living with his father.
In reference to the constitutionality of how officers searched Banda’s house and seized evidence, Levy said officers would need crucial circumstances to make a seizure without a warrant.
Without the probable cause affidavit, it’s hard to tell exactly what happened that day.
According to a Garden City police news release, officers went to Banda’s house on March 24. When she did not let them in, the officers secured the home until a search warrant was granted, in order to prevent destruction of evidence.
Levy said that under the Fourth Amendment, officers generally need a warrant for a search or seizure.
“If you’re securing the house, that’s a seizure already,” Levy said. “That may be a problem.”
Susan Richmeier, Finney County attorney, was out of the office Tuesday and could not be reached for comment.
William Votypka, deputy county attorney for Finney County, said he has been lightly involved with the case and said Banda’s second court appearance is set for Aug. 24.
“We wouldn’t have filed a case unless we had evidence that there was abuse or neglect and that there was a crime committed,” Votypka said.
The attention, he said, has been drawn to the marijuana aspect of the case, when “it’s really about the child.”
“This isn’t any special case where we’re trying to go after a woman,” he said. “It’s just a case where we received a law violation, and we treated it like any other case.”