GROWERS' PROPERTY RETURNED

Cable Boxes, Porn Vanish -'Malicious Intent' Charged

Photo Caption - Marijuana grower Jason Browne inspects lighting equipment
from which the power cord has been cut.

The Arcata Police Department's search of a Spear Avenue apartment last
spring yielded 340 marijuana plants and cartloads of growing equipment -
and all of it (minus the pot) had to be returned this week because the
District Attorney's office rejected the case.

That's not an unusual happenstance in pot cases that involve medical users.
Those concerned about access to medicine say police - particularly here in
Arcata, where a medical marijuana ordinance is in place - need to proceed
with more thought to Proposition 215, the state law that makes medical use
and production legal.

Arcata Police and county Sheriff's Department officers raided the Spear
Avenue apartment of Jason Browne, one of the architects of Arcata's medical
marijuana ordinance and a patient himself, last May. Browne and two other
patients, Jason Snyder and Brian Loucks, insisted they were growing their
pot medicinally, for themselves and 14 other patients.

Police went ahead with a search and confiscation, taking not only the
plants and equipment, but three cable boxes, a rifle that turned out to be
legally permitted and a pornographic DVD titled Asian Cum Lickers. A small
bag of hallucinogenic psilocybin mushrooms was also found, but the D.A.'s
office didn't think a jury would convict the trio and dismissed the case.

The mushrooms and pot were destroyed, and the cable boxes disappeared.
There's disagreement on whether they were taken or not. The growing
equipment - which included lights and a climate control system - has been
returned. But Browne said the power cords to each had been needlessly cut,
necessitating rewiring, and believes it was done with "malicious intent."

His lawyer, Arcata attorney Mark Harris, said he's concerned that judges
are approving search warrants without being informed of medical aspects.

"(Browne's grow) was a legitimate medical garden," said Harris. "What we've
seen time and time again is that police will raid legitimate medical grows,
confiscate all the plants and knock out medical growers without pressing
charges. It amounts to vigilantism."

Chief looking to D.A.

The Spear Avenue raid was done prior to the arrival of Arcata's recently
hired police chief, Chris Gallagher. Many are wondering what his approach
will be and how he'll handle future cases that involve medical grows.

Gallagher said he's "pretty much made it clear all along that I'll follow
the guidelines set by (county D.A.) Terry Farmer." Those guidelines allow
10 plants or two pounds of dried pot per patient.

"We have a good understanding of each other at this point and that's where
we're going," Gallagher continued. He said the amount of plants in Browne's
case justified the search.

He was asked about the D.A.'s dismissal. "It's always the D.A.'s
prerogative to dismiss a case, and this one was not one he wanted to take
on," Gallagher said.

He mentioned a Mendocino County case that was thrown out by a jury around
the time the Humboldt D.A.'s office was reviewing the Arcata confiscation,
and explained that "the D.A. would have been foolish to try and file
something after that."

How does Gallagher interpret the intent of Arcata's medical marijuana
ordinance?

"It supports state law," he said. "It doesn't talk about the caregiver
issue with clarity, and it comes down to the whole issue of state law
versus federal law (which forbids any production of marijuana).
Unfortunately, the state law in my opinion fell short on many of these
issues and that's been the difficulty with police departments across the
state in enforcing the law - it's open to too many interpretations. We're
following Terry Farmer's guidelines, which wholly give us direction."

Gallagher also said his officers will ask questions before they go ahead
with confiscations. "Part of any marijuana investigation will determine
whether there's a medical purpose," he said.

Police won't go out looking for grows, but will respond to complaints,
Gallagher continued. He said the Browne case was spurred by a complaint
from one of his neighbors.

"Typically, how we find grows is that people notice lots of people coming
in and out of a home or apartment, or say things like, 'There's a funny
smell coming from that house' or 'there are lights on all night.' Those are
the typical ways we're getting there."

Asked about the priority level of marijuana enforcement in general,
Gallagher said it will be done on a "case-by-case basis."

"(Growers) still have a chance of us finding out about it and if we do, we
will investigate," the chief continued. "The law doesn't protect everyone
growing marijuana and we still have to enforce the law."

'Arcata is the frontier'

Harris, however, is concerned about the way the law was interpreted by
police in Browne's case. Then-interim police chief Lt. Randy Mendosa has
repeatedly said he had no idea Browne's grow was medical.

"That's a ludicrous thing to say," Harris asserted. "Considering state law
and Arcata's own ordinance, police had an obligation to do certain things,
to investigate all possible avenues, including whether or not the grow was
legitimate. Also, when confronted with medical documentation, police need
to preserve the medicine they take - to seek further documentation if
needed, and not destroy any garden."

Harris thinks the Browne case highlights a need for clearer definition of
medicinal marijuana law in Arcata - a City that's been viewed as a
torchlight for the implementation of Proposition 215. He doesn't accept the
federal versus state law argument.

"(Prop. 215) clearly talks about caregivers - its says they're 'not subject
to criminal prosecution or sanction,'" Harris said. "For (Gallagher) to
bring up federal law is irrelevant. The most encouraging thing I can say is
the (Arcata) police department operates under the City Council. Arcata is
the frontier of medical marijuana implementation and I think it's important
now to take a second look at the City's ordinance and make it stronger."

Harris also believes that "the medical marijuana community in Arcata is
disappointed and has dissolved because of laws allowing seizing medicine.
People who need the medicine are going to other counties with vastly more
relaxed policies."

No limits

Browne lives in Red Bluff but holds the lease on the Spear Avenue
apartment. He said his tenants presented medical documentation to Arcata
police and it was disregarded. He mentioned that the confiscation was done
prior to Gallagher's arrival and said he'll appeal to the City Council both
for financial compensation for the missing cable boxes (about $500) and a
clarification of the City's policy on medical pot.

"I think it's appropriate at this time and I will personally request that
the council review the City's ordinance and make sure they understand
(Gallagher's) position and what his officers intend to do," Browne said.

He added that things were done right when former Chief Mel Brown was at the
helm. "But I think the City's ordinance is in jeopardy now and patients'
rights are in question," Browne continued. "Will Chris protect Arcata like
Mel protected Arcata from the Sheriff's Department?"

Browne and other contributors to Arcata's medical marijuana ordinance say
the law rejects limits on pot grown for patients. Farmer has said that
Arcata has "an arrangement with its police department and whatever's OK
with them is OK with me."

"The D.A.'s guidelines really apply to everywhere else in the county -
except Arcata, where the ordinance doesn't set number limits," said Browne.

Arcata City Councilmember Bob Ornelas is considered to be the City's
mouthpiece on medical marijuana policy. He said "the law protects
legitimate medical marijuana producers" but enforcement is "more
problematic when a supplier produces a lot - the intent of the law has
never been to provide an opportunity for a single regional supplier. We are
going to have problems when people try to produce a lot."

Ornelas said the council "absolutely supports legitimate medical marijuana
production and use, but we've never intended for a single regional supplier
to operate in town, and there will always be a gray area when there's mixed
interpretations of the law."

Medical growers need to be more conscious of what they're doing, Ornelas
continued. "We've instructed (Gallagher) that we're not interested in
hassling medical marijuana folks, but it's harder when people like Jason
Browne want to produce pounds and pounds and pounds - and it doesn't help
him to have mushrooms. We need to separate marijuana from other issues if
it's going to stand on its own."

Nevertheless, Ornelas thinks the Browne case "constitutes some kind of
misinterpretation, if not harassment... we should do our best to avoid this
in the future. When it first happened, I said, 'we should return this stuff
as soon as possible.'"

Like many residents, Ornelas is disappointed that Arcata hasn't been able
to meet a basic 215 goal - to provide safe and affordable access to meds.
Some thought that the City's cannabis clubs were poorly managed and overpriced.

The controversial clubs folded last spring, after a Supreme Court decision
affirmed the federal laws that forbade their existence.

"Now it's not safe or affordable, it's black market again," Ornelas said.
"In my world, there would be myriad sources of free marijuana for medical use."

Actually, in Ornelas' perfect world, pot would be both free and legal. "I
agree with Peter Tosh - legalize it," he said.