Dude, Where's My Pot?

Ten years after California legalized medical marijuana, OCs war on cannabis continues

All Richard "Shaggy" Quell and hisgirlfriend wanted to do was shower affection on their wounded cat, Kushy. The pet had just survived an operation after losing a vicious fight with a fellow feline. When they got the call on April 17 that Kushy was ready to go home, they rushed to the veterinarian and returned to their Anaheim apartment at about 7 p.m. Waiting for Quell in the parking lot of his apartment complex was a uniformed Anaheim police officer.

Tipped off by a fellow cop, who smelled something funny when he happened to be at the complex on another call, the officer asked if Quell was growing marijuana in his apartment.

"I said, 'Yes, but legally,'" Quell says he told the cop. "I'm working for one of the compassionate clubs in Hollywood, Kushmart. I have 70 caregiver slips. That gives me permission to grow six plants per patient, and I have less than 150 plants."

Although the cop didn't have a search warrant, Shaggy says he invited him in for a tour of his apartment—and his garage, where the officer discovered 138 flowering plants of high-grade marijuana. Before long, several other cops were taking the tour. Shaggy says the officers quickly determined that all of the pot was in his locked garage and were impressed with his paperwork stating he was growing cannabis for legitimate medical-marijuana patients under California's 1996 Compassionate Use Act, Proposition 215.

In January 2004, the California Legislature passed SB420—aptly named given that 420 is pothead code for getting high—stating that each medical-marijuana patient is allowed to grow, or have grown for them by a caregiver, up to six flowering cannabis plants. Given that Shaggy had 70 patient slips and fewer than half of the 420 total plants those patients were allowed to possess under SB420, he figured he was well within the limits of the law.

A few hours later, one of the cops called the Orange County district attorney's office. After a brief conversation, the officer told Quell their orders were to confiscate his pot plants, growing lights, patient slips, and even his own doctor's note saying he was allowed to smoke cannabis. The good news: They were going to leave without arresting him.

"I could tell the officers didn't want to be there," Quell says. "One of them said he believed I didn't think I was breaking the law, and that I was being extremely cooperative. He said that was going in his report."

The officer in question, Sergeant Tim Miller, supervisor of the Anaheim Police Department's street narcotics unit, refused to comment on the incident because the case is still ongoing. He said that California's health and safety code allows "qualified caregivers" to possess up to eight ounces of marijuana or six flowering plants per patient. "Where you run into trouble is whether someone meets the definition of a caregiver," he says, adding that the law defines one as "an individual who has consistently assumed responsibility for housing, health and safety of a patient."

The cops left Quell with 138 buckets full of dirt in his garage and the knowledge that if the DA's office wanted to file charges against him, he'd be receiving his court date in the mail. The pot plants represented an entire crop of medicine that Quell was just weeks away from delivering to Kushmart, the Hollywood club that employed him and paid his rent. Now he has no job and no cash—and he says his girlfriend is about to leave him.

"My whole world is upside-down, he says, adding that he's desperately seeking legal representation. "It's been three weeks, and I haven't heard anything from the DA's office. That's why I'm so freaked-out. It's the fact that I don't know what's going on. I've had no contact from them. That's the scariest thing to me: The fact that I don't know. This has been the worst month of my life."

*   *   *

On the same day Anaheim cops took Quell's pot, the Orange County Board of Supervisors held a hearing on whether to implement a voluntary statewide identification-card program set forth by SB420. The ID cards would supposedly protect legitimate patients from being arrested or having their medicine confiscated by cops. At the hearing, dozens of medical-marijuana advocates urged the board to vote in favor of Supervisor Chris Norby's resolution to initiate the ID card program, which 33 of California's 58 counties have already done.

Norby says he's pushing for ID cards for both legal and humanitarian reasons. "SB420 requires counties to do it," he says. "And we're doing it for humanitarian reasons because to deny somebody something that would relieve their agony and pain is cruel." Norby also hopes that implementing the ID-card program will help build support for changing federal law to support the medical use of marijuana. "If we pass this now, we will help lead the federal government to the right policy," he says. "This will push the feds to a more enlightened position on this and allow people the full panoply of God's gifts to relieve their suffering."

Ultimately, the board voted 4-1 to study Norby's proposal for the next 90 days. By the time that happened, however, both the OC Sheriff's Department and the DA's office had announced they would continue confiscating cannabis from Prop. 215 patients no matter what the supervisors had to say about it.

Assistant Sheriff Steve Bishop, a spokesman for Sheriff Mike Carona, told the supes his department would ignore ID cards and continue its policy of confiscating cannabis and doctor's prescriptions and forwarding them as evidence to the DA's office for prosecution. DA Tony Rackauckas showed up in person to denounce medical-marijuana users as lawbreakers who want to "escape from the realities of life and get high for a while."

Some OC medical-marijuana activists actually agree with Rackauckas and Carona about the wisdom of implementing the voluntary statewide ID-card program—but for entirely different reasons. "They're not making child molesters get cards, so why should we?" argues Andy Kinnon, a medical-marijuana activist and pastor with the Northern Lights Church in south Orange County. "A lot of people like the cards because it gives you the recognition you need, but others feel it will be turned over the federal government. And it's not going to stop the cops from confiscating cannabis. This whole thing has gone too far. It's harassment."

In the past few years, dozens of cannabis clubs from San Francisco to Los Angeles have been raided by federal agents who confiscated their crops. Orange County also has roughly 20 dispensaries and co-ops, all of which are listed on the CANORML (California National Organization for the Reform of Marijuana Laws) website, www.canorml.org, and several of which boast delivery services. But many medical-marijuana activists, including Kinnon, denounce pot dispensaries, especially the high-profile LA clubs, for taking advantage of Prop. 215 by selling expensive cannabis. "I see them as 'pot-repreneurs,'" Kinnon says, adding that his organization only advises patients on establishing co-ops. "I'm against all these dispensaries popping up all over the place."

As the bizarre showdown between OC's two top cops and the elected officials who pay their salaries suggests, one thing is clear: Quell isn't the only Orange County resident who is confused about what's legal and what isn't when it comes to medical marijuana. Federal law prohibits the possession, transportation, cultivation and use of medical marijuana. And state law—both Prop. 215 and SB420—supposedly protects Californians with doctor's notes.

But that only matters if local officials, who aren't sworn to enforce federal law, are willing to enforce state law. And in Orange County perhaps more than anywhere else in California, local officials have made it clear that state laws they don't agree with will not interfere with their righteous war on weed. Which means that, more than a decade after California voters overwhelmingly approved the medical use of marijuana, patients and caregivers who think they are following the law often find themselves on the wrong side of it.

OC medical-marijuana patients who spoke to the Weekly say they're stuck in a Catch-22 of chronic proportions. If you can prove you're covered by Prop. 215 and are obeying the limits of cannabis possession outlined in SB420, it's unlikely you'll go to jail, they say. But if you're unlucky enough to be pulled over or otherwise confronted by police or sheriff's deputies in Orange County, and you have pot and a doctor's note with you, chances are you can kiss your cannabis goodbye.

*   *   *

If you're 20 years old, live in Laguna Hills, wear a Mohawk haircut and have medical marijuana in your car, it's probably not wise to drive around town with expired registration tags on your rear license plate. Joel Cymerint learned that lesson on March 10, the same day a sheriff's deputy pulled him over. Since Cymerint had marijuana in his car, he says he was reaching for his doctor's note when the deputy yanked him out of the car and forced him to the pavement.

"He really hassled me," says Cymerint, who smokes cannabis with a vaporizer to relieve asthma. "His excuse is he thought I was going for a gun. He grabbed my crotch two or three times and asked me if I was hiding anything in my rectum. I sat on the curb, told him where my medicine was in the car, and he took it, put me under arrest and wrote me a ticket."

Although Cymerint insists he only had two grams of high-grade pot in his car, the deputy wrote him a ticket for possessing concentrated cannabis, which is cop-speak for what most people call hashish or liquefied pot resin. Court records show the deputy also charged Cymerint with possession of a controlled substance without a prescription, possession and use of false evidence of age, and failure to prove current registration for his car.

"I've never been in trouble before," he says. "I've had a doctor's recommendation for three years, and I've seen three different doctors, and they all agree cannabis is good for my asthma. I use a regular inhaler, too, but I don't like it because it increases my heart rate and gives me anxiety."

At his arraignment, Cymerint pleaded not guilty to all charges and showed a court commissioner his doctor's note. The commissioner told him to choose a public defender and show up in court in a few weeks. "When I showed him my paperwork, the commissioner was very respectful," Cymerint says. "The deputy treated me like dirt."

David Lucas, who says he smokes cannabis to treat post-traumatic stress disorder but refused to elaborate, has twice lost his pot after being pulled over. A few years ago, Newport Beach police confiscated his marijuana after citing him for failing to make a complete stop on a street on Balboa Island. He showed up in court to contest the ticket, and the prosecutors dropped the case. He says the same thing happened on Oct. 25, 2006, when Huntington Beach police pulled him over and confiscated a bag of marijuana and his pipe. Lucas claims police falsely alleged the pot weighed more than an ounce.

"I gave them my medical slip," Lucas says. "And they said it's not worth the paper it's written on—there's no such thing as medical marijuana." After several court hearings, prosecutors dropped the charges. Superior Court records show the case was closed without any charges filed, but Lucas says he never got his marijuana back. "It's like we live in Russia," he says. "It's almost communism. We have laws, but they don't follow them or respect them."

Former forklift operator Brian Castillo Garces probably wishes all he had to worry about was getting his pot back. He says he smokes cannabis to treat injuries—a broken left foot and fractured right hand—he suffered during a workplace accident in August 2006. On Oct. 18, police showed up at the Mission Viejo condominium he shared with five other people. "The search warrant was for cocaine and for someone who didn't live there," Garces says. "I had seven plants growing in the house and a half-ounce in my safe, and they made me open that and confiscated everything."

Police also took Garces' doctor's note, but when they tried to confirm it, the doctor's office said he wasn't a patient, Garces says. Apparently, police erroneously told the doctor his last name was Castillo, not Garces. When Garces showed up in court, deputies arrested him for cultivation and possession of marijuana with the intent to sell. He's currently awaiting trial. "They're pretty serious charges," he says. "It's all a big-ass misunderstanding."

Sue Clemmons is now a convicted felon thanks to her misunderstanding of Prop. 215 and SB420. Both Clemmons and her husband are ex-postal workers. She says she smokes marijuana to treat arthritis, a condition she developed after sorting mail for 33 years. On Sept. 6, 2006, she, her husband and 20-year-old son, were all arrested by Santa Ana cops for growing marijuana in their back yard. Apparently, a next-door neighbor, who happened to be a parole officer, saw the plants, which numbered 17. That would have been legal under SB420, which allows each patient with a doctor's note to grow up to six flowering plants, but only Clemmons—and not her husband or son—had a doctor's note.

After all three Clemmonses were hauled off to jail, strip-searched and placed in holding cells for several hours, they were released on bail because none of them had any prior arrests. Clemmons says she witnessed a female deputy yank an inmate by her hair and lead her out of the holding cell for laughing out loud. Each pled guilty to cultivating marijuana to avoid a jury trial and the possibility of spending three years in prison.

"I never thought I'd be retired and turned into a senior delinquent," Clemmons says. "If people knew how they treated people in the OC Jail, they wouldn't believe it. That's why I took a deal. I didn't want to go back."

*   *   *

Sheriff's officials failed to respond to an interview request by presstime. DA spokeswoman Susan Schroeder acknowledged that there is a lot of confusion when it comes to medical marijuana. She refused to comment on specific cases, but said her office follows the law as set by Prop. 215. "We take each case on an individual basis and try to determine if there's a valid legal defense," she said. "We're not taking sides. We're just following the law."

Nobody personifies the confusion over medical marijuana in Orange County more than Benny Toves "Rasta Ben" Guerrero, a Native American whose Guamanian ancestors called themselves the Taotao Tano, or People of the Land. Guerrero, who lives in Buena Park, is also a Rastafarian with dreadlocks that hang a few inches from the ground. Like all disciples of Jah, he views cannabis as a sacrament. He says he has the biblical quotations to prove it.

"Marijuana is the herb-bearing seed for which it shall be your meat or food in Genesis Chapter 1, verses 11 and 29," Guerrero says. "And in Exodus 23 and 30, it gives the recipe for the holy anointing oil, mistranslated from Hebrew to Greek as 'sweet cane.' Cannabis indica is sweet cane in the sense that its stems are hollow and it is definitely fragrant. It's also in Revelations Chapter 22, verse 2: It is the tree of life of which the leaves shall be the healing of all nations."

On New Year's Day 1991, Guerrero, who had just flown from Los Angeles to Guam to visit family members, walked off an airplane at A.B. Won Pat Guam International Airport. U.S. Customs officials searched his luggage and discovered a bag of cannabis. They arrested him for importing marijuana, and Guerrero spent the next 15 days in jail. After being convicted of the charges, he spent the following five years under house arrest in Guam. Guerrero challenged his conviction, saying that as a Rastafarian of Guamanian descent, his arrest violated the U.S. Constitution's protection of Native American religious freedom, as well as an 1898 treaty in which the Spanish Empire ceded Guam to the United States.

In 2000, a high court in Guam reversed Guerrero's conviction, ruling that his arrest violated "the defendant's right to free exercise of his religion as protected by the United States Constitution and the Organic Act of Guam and the Religious Freedom Restoration Act of 1993." Four years later, the court dismissed his case. Guerrero, who routinely travels to Guam and the Caribbean for family visits and Rastafarian conferences, says he always carries cannabis with him, as it is an obligation of his church. He never has any problems. But in Orange County, he says, despite his federal protection and the fact that he has a doctor's note, he's still treated like an outlaw.

"I had a fire in my house in June 2002," Guerrero recalls. "The fire department came through and found processed herb in a room and cultivating plants in the back yard. They called the police, and they arrested me that night." The DA's office later dismissed the case because, Guerrero says, the lead investigator had resigned shortly after he was arrested. Prosecutors preferred to drop the charges rather than give Guerrero's attorney an explanation.

The city of Buena Park charged Guerrero with several building-code violations relating to his house fire. On March 1, a jury convicted him. He's currently appealing the conviction, arguing the city is discriminating against him because of his religious beliefs.

Although he doesn't share Guerrero's federal right to smoke pot, Lake Forest resident and medical-marijuana patient Josue Lopez can certainly share his frustration with Orange County law enforcement. In March 2005, he says, he was staying with some people he thought were his friends when they "jumped" him. His "friends" were after the three ounces of marijuana Lopez had in his backpack. Lopez called the police, who interviewed the suspects but said they didn't have enough evidence to press charges. Lopez got angry and started calling the DA's office, demanding to speak to Orange County's top prosecutor, Tony Rackauckas.

"I started calling the DA's office and told them off," Lopez says. "I kept calling every 30 minutes, pestering him until I got a hold of him. I told Rackauckas, 'You are not looking out for the best interest of the people. You are just about getting rich, and maybe one day, someone will get in there that knows what they are doing.'" Lopez says Rackauckas informed him that his office felt it couldn't obtain a favorable jury verdict.

Lopez grew to regret harassing Rackauckas on the telephone. On Aug. 4, 2005, sheriff's detectives arrested Lopez for cultivating and possessing marijuana with the intent to sell. While Lopez claims he was a "caregiver" to six people, the DA's office evidently thought—given that he was not primarily responsible for housing, feeding and clothing the patients he was supplying with cannabis—that he wasn't a caregiver under the law. Facing three years in prison, Lopez ultimately took a deal that put him in jail for six months. His probation officer allows him to smoke marijuana to alleviate pain and nausea from a hernia and back injuries from riding dirt bikes, but he worries he'll be arrested again.

"We are like apples in the orchard," Lopez says. "And the cops are there to take apples. We're always there, always around just to be picked off. We're job security for them. If their numbers are down, they can just bust people for marijuana."

*   *   *

In Orange County, police haven't limited themselves to busting cannabis patients; they've also gone to extraordinary lengths in trying to undermine medical-marijuana activists. Just ask Dr. Philip Denny, one of the most prominent advocates of medical marijuana in California. For the past eight years, Denny has worked primarily out of his northern California offices in Redding and Sacramento, but in January 2004, he opened a third location in Lake Forest. One day, a man named John O'Brien visited his Lake Forest office and said he worked in the pharmaceutical industry and had a plan to treat chemotherapy patients with cannabis inhaled through vaporizers to reduce the harmful effects of the smoke.

"He was interested in what I thought about the idea and whether I had patients that might benefit from that sort of thing," Denny recalls. "He never became my patient, but we talked once or twice."

On Feb. 26, 2006, a man identifying himself as James Grid visited Denny's office, showing paperwork saying he suffered from a chronic sinus condition. Based on the previous diagnosis, Denny provided Grid with a physician's note stating that cannabis could help alleviate his condition. But Grid's paperwork turned out to be fake, and Grid turned out to be a Newport Beach narcotics detective named John Pallas. Pallas, in fact, was working with the Orange County Sheriff's Department in a sting operation against O'Brien, the medical-marijuana activist.

According to a police report filed by Pallas, O'Brien had offered to sell him marijuana if he received a physician's note from Denny. O'Brien followed up on his offer, and Pallas arrested him for selling marijuana.

After Denny discovered that Pallas had infiltrated his office with phony paperwork, he wrote Pallas a personal letter. "Despite signing a document stating that all the information you provided was true under penalty of perjury, you skillfully lied and falsified documents in order to obtain a medical cannabis recommendation," Denny wrote. "Under such circumstances, I must advise that your recommendation is invalid because it was obtained by fraud."

Denny says police have used similar tactics in northern California, but that in Orange County, law enforcement's undercover behavior is matched by its public crusade against cannabis. "What these guys do is emblematic of the Orange County sheriff's political position," Denny says. "This sheriff and his drug-war minions are willing to use their offices to further their own political agenda. But the genie is out of the bottle. There is no way they can stuff it back in. The fact that the DA, the sheriff or the Board of Supervisors opposes cannabis isn't going to stop it. But the poor patients will be made to suffer and [be] intimidated and threatened and jailed until it gets resolved, and I think it's a shame."

Nobody in Orange County has paid a higher price in the war on medical marijuana than Marvin Chavez, a cannabis user who suffers from a debilitating spine disease called ankylosing spondilitis, for which he wears a back brace. Along with David Herrick, a former cop and combat medic who learned about the benefits of medical marijuana in Vietnam, Chavez co-founded Orange County's first cannabis co-operative 10 years ago, shortly after Prop. 215 became law.

After a year of making speeches at city council meetings—hardly the favored tactic of an underground pot merchant—Chavez finally won a license for his co-op from the city of Garden Grove. Tipped off by his public appearances, the city's cops infiltrated his group by posing as medical-marijuana patients and caregivers with what turned out to be forged doctor's notes. The narcs convinced Chavez to accept small donations to his co-op in return for baggies of pot. Prosecutors charged Chavez and Herrick with several counts of selling marijuana.

During his 1998 trial, Orange County Superior Court Judge Thomas Borris—who later crashed his car into a tree while driving drunk—prohibited Chavez from mentioning Prop. 215. DA prosecutor Carl Armbrust, a stern septuagenarian who advised chronically ill patients to ditch their pot and drink scotch to relieve their pain, threatened to arrest a member of Chavez's co-op who failed to appear in the courtroom until he learned the man had just died of cancer. Not permitted to consider the applicable state law, a jury ultimately convicted Chavez of selling pot; Borris sentenced him to six years in prison.

Herrick also was convicted of selling pot and sent to prison, but his conviction was reversed in 1999, when an appeals court ruled that Armburst had engaged in prosecutorial misconduct. The following year, Chavez walked out of prison in northern California pending the outcome of his appeal. That same day, he learned that Jack Schacter, a friend and fellow co-op founder who had been forced to testify against him, had just died of AIDS. Chavez re-formed the co-op, and not surprisingly, he found himself in trouble again. On Sept. 6, 2001—just five days before the worst terrorist attack on U.S. soil—Santa Ana police raided his house and confiscated his cannabis plants. A few months later, he lost his appeal and went back to state prison.

The experience hasn't dimmed Chavez's desire to see the day when local enforcement officials such as Carona and Rackauckas start obeying the law. He says he plans to give his defunct OC cannabis co-op a third chance, despite the proven risks. "What's really upsetting is they are not giving us a chance to work together," Chavez says. "They are just flat-out saying, 'We will arrest you, intimidate you, throw you in jail and turn your lives upside-down.' I've paid my dues. It's 2007 now, but wow, here we go again."

nschou@ocweekly.com

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