MENDOCINO COUNTRY Independent
Posted 11/14/09

OVERVIEW OF MARIJUANA LEGISLATION, LITIGATION 
AND ENFORCEMENT IN MENDOCINO COUNTY

    Laura Hamburg was the chairperson of the official campaign committee to defeat Measure B in 2008. She prevailed in her 2007 criminal case after defense attorney Keith Faulder argued the search warrant affadavit was faulty for failing to mention her medical claims covering 75 or more plants.
     Laura is the daughter of former congressman,  former supervisor and current fifth district supervisorial candidate Dan Hamburg.
 RJ photo.

The Compassionate Use Actlaura.jpg
    Is marijuana cultivation legal in California?
    No, cultivation of one or more plants is prohibited under Health and Safety Code §11358 which provides state prison time as a punishment.
    Nevertheless, do I have a right to grow medical marijuana?
    Yes, for yourself. And only if you have no more than -- and you possess it in a manner consistent with -- your current medical needs.
    [Compassionate Use Act, Prop 215, §11362.5(d) provides an exemption from §11357, simple possession, and §11358 possession, cultivation, transportation for sale.]
    Qualified patients claiming protection under 215 may possess an amount of marijuana that is “reasonably related to [their] current medical needs.” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.)
    This is a right only in the sense of being a defense in court if you are caught and charged with violating those statutes.
    [Mower motion to be brought by your attorney but only at prelim or trial].
    All marijuana which is not medical is criminal. The difference is in the intent of the cultivator, a matter to be tried in court.
    Most local deputies consider all marijuana to be criminal, and in most cases I have observed if they find it, they will get a warrant and eradicate it.
    [Hamburg case, Henderson case, omitting medical claim in affidavit for warrant. Henderson case, Deputy Hendry "I never do," take a recommendation into account.]
    Most local growers are not concerned with laws and have no plans to defend themselves in court because they do everything they can to avoid detection.
    Some Mendocino County ADAs are reasonable in medical cases, others have undisguised contempt for marijuana and those who grow it.
    They seldom if ever obtain convictions at trial. Most defendants are convinced to plead guilty after months of expensive and tedious court appearances.
    Marijuana prosecution is hell. Avoid it at all costs.
    Mendocino reported a record number of marijuana arrests in 2008, according to data from the Cal DOJ Bureau of Criminal Statistics.
    Felony arrests increased to an all-time record of 238, up 42% from 167 in 2007. `
    Misdemeanors increased to 169, up from 129 the previous year.
    The surge in marijuana felonies in Mendocino could be attributable to Measure B, which passed in June of that year.
    The MENDOCINO COUNTRY Independent has a data base of 400 marijuana defendants arrested in 2008. It shows a wide range of plant counts all the way up to thousands. The median garden size was 200 plants, way over anything to be considered medical.
    The reason for discovery of the garden varied greatly. Warrants are usually obtained when evidence emerges such as the arrest of a resident transporting in their vehicle pulled over for a suspected traffic violation, a package of cash sent UPS, etc.
    When deputies discover by surprise in the course of other investigations, they hold everyone on the property and obtain a warrant. Other motives for surprise discoveries are civil standbys, accidents involving firearms or fireworks, investigations of missing persons etc.
    Neighbors complain when they smell marijuana, or when they observe an unoccupied home seldom visited with windows obscured. The sheriff claims about five complaints of marijuana cultivation come in every day.
    Warrants can be sought after a PG&E bill reveals heavy electricity use, or after a site is staked out, observed and photographed over a period of time. Warrants are served by the Major Crimes Task Force, by the County of Mendocino Marijuana Eradication Team, or by squads of sheriff deputies or city police.
    Overflights are conducted once or twice a year, and a no warrant is needed for an "open field eradication" on trespassed land including public land. On these expeditions, they often spot gardens they didn't expect, they come back and get them later, even the next year.
    . Mendocino is unique among California's counties in that its felony marijuana arrests outnumber misdemeanors. Statewide, there were 17,126 marijuana felonies versus 61,388 misdemeanors in 2008. Per capita, Mendocino's marijuana felony arrest rate is six times that of the rest of the state; for misdemeanors, its rate is just slightly above average.
    
Caregiving is Out
    So the CUA protects patients rights to cultivate and possess for themselves. If you want to grow for other people, it's more complicated.
    The CUA also provides an exemption for "caregivers," but the caregiver defense has been severely limited by the Mentch decision to those whose relationship to the patient is prior to and includes much more than the provision of marijuana alone such as shelter, food and other medical care. "Card stacking" is no longer a valid defense.

The Medical Marijuana Program
    The people of the state passed Prop 215 in 1996, but  in 2003 the legislature passed and the governor signed the Medical Marijuana Program [SB420] which provides an identification card for patients and caregivers. It's a voluntary program meant to facilitate implementation of Prop 215 by allowing law enforcement to readily identify patients who qualify for its protections.
    §11362.71(e) grants an exemption from arrest -- but not from prosecution -- to anyone with a valid state ID MMP card. These cards are available from the county health department.
    §11362.78 says law enforcement shall not refuse to accept a valid ID card. But sheriff deputies here largely ignore evidence of medical growing on their way to eradicating the plants. They'll tell you its for  you to prove in court, and they "accept" and carry away your cards and medical recommendations as evidence, along with any records they can find, and any money on the premises, and possibly seize your bank accounts  and any high priced toys as well.
    
Limits will be Out
    Section 11362.77 provides maximum limits for participation in the voluntary ID card program as 8 ounces of finished product plus 6 mature or 12 immature plants. with an permit to exceed that limit if stated specifically in the recommendation or if a local government decides to set a higher limit.
     Until last May, this was also used by prosecutors to define the upper limits of medical intent and jury instructions frequently included that more than that was evidence of criminal intent.
    But the Kelly decision out of the LA court of appeals threw out those specific limits, and stated that it was unconstitutional for the legislature to set any limit because Prop 215 was passed by voters.
    In the fall, however, that decision was suspended by the state supreme court which is now preparing to rule that the limits remain for the purposes of defining eligibility for the voluntary ID card program but not for defining medical versus criminal intent in court for those who do not have an ID card.
    The Trippet standard will apply, and each case must be considered on  its own merits apart from the amount held.

The Cooperative or Collective Model
    The more interesting facet of the Medical Marijuana Program is the "cooperative and collective" language in 11362.775 which says if a group is organized within the state of California they shall not "on that sole basis" be subject to criminal sanctions under  Section 11357 (simple possession), 11358 (cultivation) 11359 (possession for sale), 11360 (transportation or sale) 11366(drug house maintenance), 11366.5, (drug house ownership) or 11570(drug house nuisance).
    Please note this would not authorize an interstate cooperative or collective. All the members should be Californians, domiciled and registered to vote here.
    [ Uriziceanu case recognized that the defendant was administering a valid cooperative or collective.]
    This is a "right" only in the sense that if you are caught and charged with one or more of those statutes you can raise a medical defense if there are no indicia of sales outside the group. Indicia used by local prosecutors includes weapons, hash or other illicit drugs, large sums of money, baggies, scales, pay/owe sheets and security systems.
    If any of those are present, then the "weight" of finished product or number of plants can be used as evidence to convict you  of intent to sell no matter how many members are in  your collective.
    [Mendo Healing case]
    The terms collective or cooperative are used interchangeably, but "cooperative" is defined in California state Corporations and Agricultural code. (Corp. Code, § 12201, 12300.) No business may call itself a “cooperative” (or “coop” unless it is properly organized and registered as such a non-profit corporation. (Id. at § 12311(b).)
    The entity itself must return its profits to the members as dividends and not accumulate net income as cash.  There must be  bylaws and articles of incorporation that assure democratic management, including elections of directors.
    A collective must do the same, but is not required to incorporate. If not incorporated, it is an association or partnership in which each member is individually liable for the debts of the group.
    Either way, the essence of collective organization is joint ownership of the crop by all the members. Remember that only individual patients are authorized to possess medical marijuana, not growers claiming to be caregivers if their only relationship with the patient is providing marijuana.
    This implies a "closed loop" or exclusivity in that no outside sales are to happen to or from the group.
    Another essential feature of a coop or collecive is the crop is jointly owned. Finished product and any remaing cash income after paying expenses are distributed to members proportional to their investment, or by any other scheme laid out in the bylaws.
    Some members may contribute or invest only cash to the group, others only labor, or everyone contributes some cash and some labor. Materials like land rent and irrigation equipment also qualify as investment.
    The attorney general's guidelines note that state law prohibits marijuana "sales" either into or out of the group. In a true collective the crop is jointly owned, so it's not really selling for the entity to pay some members for labor or other services necessary to growing, processing, administering the business and delivering the product.
    Some local medical marijuana providers are rather lax about this, offering to sell cannabis to anyone with a valid ID and a doctor's recommendation, considering that the new member has just joined. This violates the exclusivity or closed loop language of the attorney general's guidelines. I recommend that a dispensing coop have a fixd season for new member recruiting in order to determine how much marijuana they need for the season and close off recruitment until that quantity has been distributed.
     Use of "coop" or "cooperative" without being organized under the tax code is illegal. I would not recommend this approach.

Attorney  General's Guidelines
    The AG guidelines are of course on Jerry Brown's web site but also at www.mendocinocountry.com and contains complete and reliable information, which is nonetheless as ambiguous as the situation itself.
    The enforcement guidelines should be read carefully. They require officers to release a "person" if there is a reasonable belief the medical claim is valid and the totality of circumstances confirm that, and not seize marijuana if the amount possessed is within state or local guidelines, or is consistent with their current medical needs. If the amount exceeds that, it can all be seized.
    "Reasonable suspicion is required for detention, while probable cause is required for search seizure and arrest." Reasonable suspicion and probable cause are both in the mind of the officer. The sheriff is fond of saying "we walk away all the time," when shown medical cards, etc. But one of his deputies testified in court: "I never do." Deputies do whatever they want in conducting a raid. Remember they are in business for themselves.
    The AG Guidelines contain detailed instructions for the organization and operation of medical marijuana cooperatives, collectives and dispensaries. Obtain a copy and read carefully.

County Nuisance Ordinance
    The county passed a marijuana nuisance ordinance Chapter 9.31 of its Health and Safety code in January of 2008 which declares it a nuisance to grow more than 25 plants on a single legal parcel. That law is now being rewritten and the amended version includes a sheriff's permit for a cooperative or collective to grow up to 99 plants on a single parcel with about 2 dozen conditions.
    Also, a separate companion Chapter 9.32 is added for "dispensing collectives"
    If approved by supervisors, these ordinances will be in effect for the 2010 growing season.
    Nuisance abatement can be harsh. There are provisions for summary abatement by a code enforcement officer, and the officer  has wide discretion in ordering abatement and assessing fines that can be as much as $100/day and multiply rapidly in cases of resistance to an abatement order. There is an appeal process, but it costs more than $1,000 and it's not to a court but to an administrative judge. Digging in your heels and failing to abate could result in the county taking your property in about 5 years.
    The county attorney has told law enforcement she will not process any marijuana nuisance abatement orders while the laws are being rewritten.
    Medical marijuana created increasing nuisance complaints from neighbors, prompting passage of Measure B in 2008 repealing Measure G (personal use possession and cultivation up to 25 plants -- unconstitutional) and rolling back per patient medical marijuana limits to 8-6-12 from 25, established in 2007 by supervisors).
     The vote on B was largely seen as a plebiscite on marijuana in general and did in fact invalidate a policy statement in Measure G which said county voters favored state and federal decriminalization.
    Aside from smell, the major nuisance from marijuana cultivation is the danger of armed invasion robbery and other forms of crime. Also, indoor grows are blamed for a large percentage of structure fires. Regulation which actually decreases nuisance complaints is in the interest of all.
    Most current growers however opposed any nuisance regulation of marijuana and have sued to invalidate 9.31, which would also kill the amendment with the 99 plant permit.

Sheriff's Guidelines and Zip Ties
    Last April, Sheriff Allman issued his guidelines for medical marijuana cultivation, urging people in collectives and cooperatives not to grow more than 25 plants on a single parcel. But he told a meeting of lawyers that his deputies have been told to negotiate a voluntary abatement down to 25 plants if they find no more than 40.
    Sheriff Allman also is offering "compliance checks" for the first time, to come to your place and advise  you whether or not you're "legal."
    [Henderson Sutherland case was not a compliance check, but a neighbor complaint, by a deputy]
    [Female defendant in Mendo Healing case requested a compliance check, got to ride to Ukiah in handcuffs, elaborate coop organization paperwork].
    A full copy of the sheriff's guidelines is available at www.mendocinocountry.com.
    The sheriff's office sells Zip Ties for $25 each which assign a serial number to each plant. What the sheriff says he expects is that outdoor grows will be locked up behind cyclone fencing with copies of ID cards and medical recommendations posted on the outside of the fence and each plant having a zip tie, and of course, no more than 25 plants.

Federal Enforcement
    The threshold for federal interest in marijuana under the Controlled Substances Act is 100 plants, supposedly. An attorney has told me they seldom get excited for less than 500 plants.
    As candidate and as president, Barack Obama stated his opinion that marijuana enforcement in those states which recognize medical use should be left to state authorities if in each case the marijuana is possessed in compliance with state law.
    And twice, AG Holder has made statements to the press repeating the same message in an attempt to clarify this position. And after each of these statements, the DEA has raided medical marijuana dispensaries in California as if to assert some kind of independence from Washington.
    In August, US attorney for Northern California Joseph Russoniello declared that dispensaries making a profit were violating state law and were subject to federal enforcement.
    On October 7,  DEA agents from San Francisco raided a farm in Potter Valley operated by Jim and Trelani Hill. Local police said they got significant finished product and several hundred plants. Jim and Trelani interviewed for a series in the Ukiah Daily Journal said it was 20 plants.
    They were interviewed for a July story on marijuana growing in California that was carried by AP saying they had 20 members in their medical marijuana coop. At that time, the above policy was in place.
    On September 11, the Hills had sued the county to overturn its marijuana nuisance law and halt the process of amending it to permit the sheriff to exempt coops to grow up to 99 plants.
    On October 19, Washington made it official and issued a memo to US attorneys in medical marijuana states restating and amplifying on that same policy. that it is "not a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana."
    The memo went on to list the same kinds of indicia of criminal cultivation as in the AG Brown's guidelines: weapons, violence, illegal drugs, large sums of cash, money laundering, amounts of marijuana inconsistent with state law, sales to minors and ties to criminal enterprises.
    In just the last two years, dozens of dispensaries have been raided by DEA in paramilitary style operations. More than a hundred people are facing charges, sentencing or are already imprisoned for providing medicine under Prop 215 and the MMP.
    There are currently three medical marijuana dispensaries in Mendocino County, and at least one delivery service which characterizes itself as a cooperative.



Footnotes                                             Laura Hamburg, rj photo.
    • Hamburg case October 2007. Deputies arrived at rural residence seeking a family member who had violated a restraining order. Observed marijuana and requested a search warrant but omitted that defendant had recommendations to cover the 75 plants.
     Case thrown out by judge for faulty affidavit.
    Limit at the time was 25 plants per patient. She also had $15,000 in a duffel bag with bags of marijuana. ADA refused to return money  "because she was technically guilty," lawyer obtained return of money but not marijuana after months of forfeiture litigation.
    LESSON, Don't have any relationship with anyone who would attract law enforcement to your grow site.

    • Henderson Sutherland case. Redwood Valley home was raided in 2008 upon insistence of deputy Poma who lives further up Tomki Road and couldn't stand the thought of healthy, young rich people buying nice things and living to the fullest.
    Case thrown out in August of 2009 after defense showed the raiders entered 150 feet into private property without a warrant and did not knock at the front door to ask permission to look but accosted the young woman defendant who was alone with her children on the property and demanded to know where the marijuana was. Instead of insisting they leave, she showed them the greenhouse. Deputies called it a "compliance check."
    Also, the DA's office or the deputies destroyed the plants, so the evidence could not be presented in court. Prosecution decided to pursue the litigation anyway with some hash patties of reduced THC value.
    LESSON: Deputies will violate the constitution to find marijuana, and omit evidence of medical motive in their affidavits to obtain warrants. You may win in court, but the deputies don't care. They want your money, and your marijuana.

    • MendoHealing Case. David Moore was convicted of cultivating in 2005 and on probation. The case was famous because he had a farm in Fort Bragg and dispensary in San Francisco and was thus vertically integrated. Also, some three or four dozen Mexican farmworkers were trimming in his barn on the morning shift when deputies and DEA arrived.
    In February of this year he and his female partner were arrested on the same farm with bales of finished product and numerous plants by Mendocino County deputies and DEA agents. Also arrested were four Mexican employees.
     They had an elaborate coop setup with bylaws and articles of incorporation, and claimed to have 600 members. The paperwork was carried off by deputies in two bankers boxes.
    To settle the case David Moore pled guilty months later to violation of probation and cultivation of intent to sell. Some $100,000 in cash was found in his San Francisco apartment. The others were dismissed from the case, and his partner had gone to the sheriff's office and asked for a compliance check.
    LESSON: Don't ask for a compliance check. Don't grow marijuana while on probation.     

    • Smitty Case. Philo, 2008. Lester Smith, 90 years old has 2 granddaughters living on the property and they are married to 2 Mexican men. Together they were growing about 80 plants for which they had 3 recommendations. The limit at the time was 25 plants per patient, but deputies said they had violated the nuisance law and eradicated all the plants. They also arrested the granddaughters and husbands, they seized Lester's life savings of $55,000 in cash and Child Protective Services took the granddaughters' children.
    During the raid, without benefit of counsel, the granddaughters confessed to selling marijuana to pay bills.
    Lester was charged with cultivation for sale despite the fact he is no longer capable of physical work, along with the granddaughters and husbands. In order to get charges dismissed against Lester, the husbands pled guilty of cultivation for sale and the granddaughters to facilitation after the fact and they all served nominal jail sentences.
    The children were returned within days. Lester's money was not returned until September of this year.
    LESSON: Where there are multiple defendants, one or more will be encouraged to "take the weight" to get the vulnerable co-defendants dismissed. If you decide to grow, it's best to do it alone. ]

    • Strauss-Maligno Case: Redwood Valley grow was raided after police stopped a vehicle headed south from Mendocino County and discovered 400 lbs of processed marijuana headed for a dispensary in West Hollywood.
    Defendants hired defense attorneys Edie Lerman and David Nick and went to trial. Jury voted for acquittal 7-5 after defense presented a recount of a prior raid on the dispensary which showed gross contempt for marijuana and the people who use it on the part of law enforcement.
    The vehicle was probably profiled from prior surveillance of the dispensary.  
     The dispensary has broad political support within its community and the director was a sympathetic and credible witness.
    LESSON  After trial, Lerman declared that any defendant with a credible marijuana motive should go all the way to trial. Approximate cost 40-70,000.

RECOMMENDED DO'S AND DON'TS
    Sheriff Allman is a friendly, people-savvy guy who will talk to you as long as you stand still. But he stated in an interview anyone making a living growing marijuana is subject to arrest and eradication. The exact quote is, "We will hunt you down, we will find you, we will eradicate your crop and arrest you. We will prosecute you to the fullest extent of the law and seize your property."
    Therefore, marijuana production whether for medical or criminal sale should be viewed as a risky and illegal game to win or lose, not a right.
    There are ways to reduce your risk of getting caught.
    •  Do not apply for a state ID from county health department;
    •  Do not apply for a county or city use permit for an indoor grow operation;
    • Do not apply for zip tags or seek a compliance check of your operation from law enforcement or any government agency.
    •  Avoid any circumstance that would cause law enforcement to enter or observe your garden. This would include civil complaints, child custody, divorce matters, restraining orders, medical emergencies, etc involving yourself or anyone known to reside on the property.
    • Be aware anyone you anger that knows about your garden may turn you in, (ex-spouses, disgruntled business partners, etc).
    •  Do not smoke pot or binge on booze. Keep your wits about you constantly from planting day until harvest and sale.
    • Do not raise children where you grow marijuana. CPS will seize them for child endangerment if there is a raid.
    In addition, children are a vector to detection because as they grow, they become interested in the crop. Your own children, or their friends who insist on visiting and charm you, may steal it, get detected and turn you in. Two recent cases.
    •  Certain items are considered indicia of intent to sell. Do not keep them where you grow:: a) Scales; b) pay-owe sheets; c) weapons of any kind; d) large amounts of cash; e) other drugs like hash, crank, coke or meth; f) bagged amounts of product in equal weights; g) video monitoring or other security measures protecting the grow.
    • Keep any medical defense records away from the grow site, they will only be confiscated and quarantined as evidence and you will have to file defense motions to get copies, for which you will have to pay.
    • If you are raided and they have a warrant, your crop will be completely eradicated, DO NOT CONFESS. Demand your lawyer be present.
    If they don't have a warrant, demand they leave your property. Nevertheless, you will be detained until they have a warrant.
    • If they threaten to take your children, don't be intimidated. You will get them back in good condition. Children should be prepared in advance for CPS custody if they live where you are growing.
      If you have copies of your state ID and doctor's recommendation, demand they take it into account.
    The agents will tell you they will leave your crop alone if you just answer a few questions. This is a lie. They WILL eradicate if they have a warrant. Whatever you say will be used to convict you in court whether your attorney is present or not.
    If you claim to be a medical grower, they will ask you about your own medical use, for whom you are growing, how much you use, how much they use -- all in order to measure the crop against your total claims of ultimate consumption.
    They will ask you how long you have been growing,  how many cycles a year you have been harvesting.
     They will ask you if you ever sell marijuana and if you confess to that your claim of medical cultivation goes out the window.
    They will ask you what services you provide your patients besides furnishing marijuana. If none, your caregiving defense is jeopardized.
    They will ask how you support yourself and unless you have a job or an inheritance or stocks and bonds they assume it is from marijuana sales and seize your bank accounts. If you bought your land with marijuana proceeds, or built your house or bought expensive vehicles while you have been growing they will seize all that.
    They will threaten you with immediate arrest and capture of your children unless you confess. But once you talk, they take you in anyway. Don't confess. Ask to speak to an attorney. Brace yourself for eradication and arrest. Silence is your right. Once you give up that right and confess, your lawyer can do little for you.
    But more than evidence, what the agents will really want is your  money and your crop. They are in business for themselves.
    The key offenders are Derrick Hendry, Scott Poma, Peter Hoyle, Tim Goss, and Kurt Smallcomb.