By Richard Johnson

            I am not a lawyer, and thus willing to advise you on law enforcement and prosecutorial aspects of marijuana cultivation, a felony under state and federal law.

            There are only two kinds of marijuana under California state law: criminal and medical.

            Under federal law, there is only one kind: criminal. But as a practical matter, the DEA usually does not act in cases under 100 plants. But they did take only 25 from Jim Hill in 2009 in Potter Valley.

            With regard to medical marijuana, the Obama administration has recommended that  federal attorneys not prosecute cases in which all other things being equal the subjects comply with state law.

            Voters in some 14 states, including California, have voted to approve medical marijuana.

GROWING IN GENERAL:

            Marijuana cultivation is a high-risk occupation and should be approached and carried out with focus and discipline. The consequences of being robbed or raided are considerable and longlasting. You could even be killed.

            Location: Choose an outdoor garden site that is not visible from anywhere but straight above, and far enough away that no one could smell it. Not every homestead is adequate in this regard.

            Relationships: In my experience, many people who are caught or robbed were betrayed by a relationship. Your child invites a friend to visit, and that child steals some of your marijuana and gets caught and reveals where they got it. Their parents call the police.

            Your ex decides they don’t  want you to enjoy success in your new relationship and the don’t want their kids with you growing up with your marijuana so they approach the police and give them your information. The police come and threaten to take your kids if  you don’t give them your money stash. Then they rip up your plants.

`            Your disillusioned former business partner, an angry home remodeling contractor, a resentful customer -- all these relationships make you vulnerable if others know about your garden or your money and wish you ill.

            Grow where no one but yourself knows where it is. That is the necessary discipline.

            Focus: Grows were found by police searching for a brother who violated a protective order, responding to an incident where a grower was handling fireworks and injured his hand, responding to a call for civil standby in a child custody matter. Give the police no reason to come to your garden.

SECURITY:

            The best security outdoors is secrecy. Even a chain link fence will not keep out determined robbers. Don’t bother with booby traps. And I advise against trying to defend your crop with any weapon. If you are busted, and prosecuted, the weapon will be a special allegation of possessing a firearm in the commission of a felony.

             Be prepared to lose everything at the garden site, so don’t keep valuables there, or any item that identifies you. Remember it’s a business venture, not worth killing or dying for. Lose your crop, keep your life.

EVIDENCE:

            In court, police officers are asked what makes them believe the marijuana was for sale. They have a list of things judges recognize which include scales, baggies, bags with equal retail amounts of marijuana, excessive amounts of money, and weapons, even antique weapons. In one case and employee told police he was making $140 a day tending the marijuana. That was evidence the owner was in business.

            Other things listed as evidence are luxury vehicles, new farm equipment, pay-owe sheets, lavish lifestyle, etc. 

            In one case, a closed circuit TV system with cameras in the garden wired to a monitor in the nearby house was evidence of sales: the owner had taken precautions against thieves. She also had several weapons in the house that she could have used against any should they show up in the monitor.

            Guns?  Think about the consequences of wounding someone and they get away, or you kill them and they don’t. Then what?

GETTING THE WARRANT;

            If police hear you are growing either indoors or outdoors they may trespass at midnight to “gather evidence.” In one case a pair of deputies crossed a fence and marched uphill hundreds of feet through thick woods to approach a garage where they knew the marijuana was. They did not smell it, but they filled out a request for a warrant saying they smelled it.

            In another case they stood on a public road and claimed to hear a generator and got a warrant. In another case they entered through an open gate and looked through an open greenhouse door.

            In another case they entered an open gate, or broke the lock and drove 150’ to the residence where they circled to the back yard to find the housewife. They demanded to see the pot, and once they were shown it they demanded money or they would take the kids. They took control of the house and searched it. They called in for a search warrant. They arrested the owner who was home at the time, and eradicated the grow.

            That case was dismissed because the cops entered without a warrant and did not knock on the front door and ask permission to do a compliance check. If they don’t have a warrant, ask them to leave and then eradicate yourself if you can. Without any evidence, the cops can’t detain you prior to getting the warrant.

            They only need a warrant to search a house (looking for your money).

             If you grow outdoors on other property they can search for it without a warrant under the “open field” doctrine. In  one of the cases above, the judge ruled 12 acres of fenced, wooded property was an open field where the defendant had no expectation of privacy, and curtilage only applied to the flattened off hilltop with the driveway, house and garage.

IF THEY COME  WITH A WARRANT:

            If they have a warrant, they are going to eradicate no matter what they tell you. They will first sit down with you and offer to leave you alone if you just answer a few questions. The purpose of this is to get you to incriminate yourself so you will be convicted in court.

            At this point you should accept that you are about to be eradicated and arrested and you best move is to not incriminate yourself as much as possible. “I would like to cooperate but I understand I can remain silent and that is what I am doing. I want to call my lawyer.”

            Many, many defendants confess after being read their Miranda rights. The reasons differ: poor judgment, fear, inordinate respect for authority, the need to confess, innocent belief that what they are doing is legal, etc.

            The purpose of their questions are to connect you with the crop, to prove you are making money as a grower, that you have grown in previous years, and perhaps to learn if you have any information about other growers. And they may demand your money.

GROWING MEDICAL MARIJUANA:

            Mendocino County law enforcement considers all growing marijuana to be criminal because it is not medical until the patient gets it. One deputy -- Derrick Hendry -- testified in open court he “never” considers a medical marijuana recommendation in deciding whether the crop is medical or criminal.

            If you are growing marijuana for medicine, you should be aware that should the police come with a warrant, the recommendation will probably be ignored. If they come  by chance, or on a “compliance check” without a warrant, then you can ask then to leave. You should not assume your recommendation will protect you.

            If they come to your garden and not your house, they can detain you and call in for a warrant.

            It is advisable to post copies of recommendations on signboards outside an outdoor garden.

            • Plant limits, criminal: SB 420 has a clause stating that people with California Medical Marijuana cards can avoid arrest and eradication by possessing no more than six mature, 12 immature plants and 8 ounces of bud. Prosecutors were using those limits to define medical versus criminal possession in court. That use of those limits has been barred by the January 2010 California Supreme Court decision in People v. Kelly.

            The new dictum is that the amount of marijuana must be reasonably related to the patient’s medical condition or need, and possessed in a manner consistent with that use.

            If you are growing for others, all the recommendations should be posted at the garden site and the total number of plants should correspond to the total medical need of your patients.

            • Plant limits, civil: Regardless of how many patients you are tending, the county medical marijuana cultivation ordinance Chapter 9.31 requires you have no more than 25 plants per legal parcel, and imposes a host of restrictions and conditions such as chain link fencing, etc. It also limits indoor grows. Best to review the text of the ordinance for a complete picture.

            They do not have resources to run around looking for your garden. They will only come if there is a complaint. If no one can see or smell your outdoor garden, there will be no complaints.

            There is a civil abatement procedure the deputies should follow in such a case. If a deputy visits on a nuisance complaint, they may give you a Notice of Violation with certain period to abate the nuisance which could be to reduce the number of plants to 25, or to construct some kind of visual screening.

            Fines of from $25 up to $100 a day will begin, at the discretion of the inspecting officer. If you promptly comply with the abatement order, the sheriff can reduce or eliminate the fines. In addition, there will be a $250 adminstrative fee. Costs of re-inspection will be borne by the grower.

             If you ignore the order, the county could put your property up for sale on a tax lien after a period of years.. Appeals cost $1,400 and are before an administrative law judge hired by the county. You will not win.

SHERIFF COOP PERMIT:

            A feature of the recently enacted version of 9.31 is that it provides for  a highly conditioned sheriff’s permit to grow up to 99 plants of medical marijuana per legal parcel as an exemption from the 25 plant per parcel limit.

            This is for cooperatives or collectives with sufficient membership with medical conditions that warrant this quantity. For example, a 33 member cooperative with an average of 3 plants each, or 16 members with an average need for 6 plants each.

            On the other hand there is no limit in the ordinance on how many parcels an organization can rent or own for the purposes of cultivating medical marijuana.

            The members of the cooperatives will be registered in the organization’s documents, but will not be revealed to law enforcement at the application stage.

            What will be required is up to three contact persons’ data, and a location and a proposed plant count. There will also be a long list of requirements for legal, environmental and state administrative data.

            It is recommended that grower organizations wishing to enjoy the benefits of the program hire at their own expense a third party consultant among those to be named the first week in July.

            Applications for the program will probably be available on the county’s website after June 23.  The application fees for growers will probably be as much as $900 plus a zip tie fee of $25 per plant.

COOPERATIVES AND COLLECTIVES:

            The 2008 Attorney General’s Guidelines provide the framework for organizing a collective or cooperative. The basic principle is that members (patients and/or caregivers) own the crop jointly and contribute cash or services while it’s growing, and there’s a distribution on some basis after harvest, but only to the membership. Outside sales are not permitted. Nor is the purchase of marijuana outside the group for resale to members.

Residence:

            Under §11362.775 of the Health and Safety Code,  those who “associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes” should be “qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients, persons with valid identification cards “ in order to qualify for immunity from the prohibitions in §11357 et seq.

            A patient designates a primary caregiver when they get their state ID card. The designated primary caregiver gets a card recognizing the designation.

            Under §11362.7(d)(2) a “primary caregiver” can have more than one patient only if they are all “residents of the same city or county” as the caregiver.

            Under §11362.7(d)(3) a primary caregiver can have a patient in another county only if he has no other patients.

            On the face of it, this would seem to eliminate the model of locally resident provider members being compensated for the actual cost of their services by patient members in other California communities.

            On the other hand, if all the local members of the coop or collective are both patients and designated primary  caregivers, all but one could possess a share of the crop for themselves and another share to provide to one member patient outside the county if they have no other patients. In turn, each member patient outside the county could also be a caretaker for other member patients in their own county and possess both for themselves and for each of their patients…..

Preventing Diversion:

            There should be a membership application form that documents each patient has a valid recommendation. Membership records must be kept. Financial records must be kept and open to the members. Individual transactions must be recorded. These and other steps must be taken to assure that marijuana is not diverted to the black market.

            A cooperative must meet tax code requirements (to avoid double taxation) and register with the Board of Equalization under the Food and Agriculture Code or Corporations Code.

            A collective is any organization that does not so register, but both types must have bylaws and articles of incorporation, must not be operated for profit, elect their directors and make decisions democratically.

            There should be bylaws and articles of incorporation. Keep originals of all documents in a safe place where police cannot confiscate them, with copies on the farm.

            The organization should get a state sellers permit pay sales tax on the net value of the member investment after costs, even though it is not a sale. As a business, the organization should file an income tax statement, but can and should show no net profit.

            Any “collective” or “coop”  organization that recruits customers while the crop is growing is really a marketing organization in violation of the guidelines and the law, even if the customers are called members and enscribed in some record.

            The members have an interest in that the crop not be shared with outsiders or new members. The planting quantity has to reflect the total medical needs of  the patients at the time of planting. Planting a big crop and then recruiting new members is therefore a violation of the guidelines, and criminal law.

            Be aware that one coop in Mendocino County operated a dispensary in San Francisco and had hired a lawyer to write bylaws and articles of incorporation. They had recommendations from 600 “members,” all in the City. During the raid,  the police took all the paperwork and didn’t give it back until the trial of one of the organizers. His apartment in the City had over $100,000 in cash and so the medical defense was not available to him.