New Times / Cover Story
The following articles were printed from New Times [newtimesslo.com] - Volume 25, Issue 26
The road ahead is riddled with potholesDefendants and law enforcement officials discuss recent medical marijuana mobile dispensary raids
BY MATT FOUNTAIN
San Luis Obispo County has what one might call a turbulent relationship with medicinal marijuana.
While qualified patients depend on medical cannabis to soothe their pain, stimulate their appetite, or allow them to sleep, cities across the county have banned dispensaries through city ordinances. Since Morro Bay businessman Charles Lynch became a national figure following the high profile DEA raid instigated by former Sheriff Pat Hedges, cities and unincorporated communities have taken a NIMBY approach to medical marijuana dispensaries.
Though hundreds of county residents possess doctors’ recommendations for medical cannabis, most had to make the trip to Santa Barbara or Oakland to fill a prescription.
However, in October 2009, New Times reported on the growth of mobile medical marijuana providers on the Central Coast (“Within the law, under the radar,” Oct. 14, 2009). These providers bring medicine to people who can’t make the trip out of the county.
Drivers for Atascadero-based Cannafornia Health Services took New Times for a ride-along to put their services in perspective and meet those who rely on medical marijuana to ease their afflictions.
Just more than a year later, Cannafornia Health Services would be one of seven local collectives targeted in the county’s latest law enforcement crackdown on medical marijuana suppliers.
The owners and operators arrested in the operation say they were following the law. The San Luis Obispo County Narcotics Task Force (NTF) disagrees. Now, all eyes are on the District Attorney’s Office to see if SLO County’s interpretation of state medicinal marijuana laws will once again make the front pages of national news.
The latest chapter in the county’s tumultuous relationship with medicinal marijuana began the night of Dec. 27, 2010.
Roughly 50 agents, participating in a large-scale NTF investigation, would serve eight search warrants over the next three days, leading to 15 arrests.
Officers raided residences in Paso Robles, Templeton, Atascadero, and Pismo Beach, as well as Tarzana, a neighborhood district in Los Angeles’ San Fernando Valley.
Local media reported what few details were made readily available, most of which came from a muddy California Department of Justice press release. At first glance, the evidence reportedly seized in the raids seemed damning: four grams of cocaine, 57 lbs. of marijuana, 162 marijuana plants, 146 grams of hash, 718 grams of hash oil, seven firearms, and $492,931 in “U.S. currency.”
The NTF appraised the total value of the cocaine, marijuana, and hash at nearly $3.5 million.
Fifteen people—including three from the Los Angeles area—were arrested on charges that included cultivation of marijuana, marijuana sales, possession with intent to sell, possession of cocaine for sale, and child endangerment.
Additionally, six children were placed in protective custody by the SLO County Department of Child Welfare Services at the request of the NTF.
The operation was, by all accounts, industrious and boasted cooperation from the Santa Barbara regional Narcotic Task Force, the San Luis Obispo County Sheriff’s Department, the Santa Barbara County Sheriff’s Department, SLOPD, Santa Maria PD, and the California Highway Patrol.
But there’s more to the story than the NTF-approved press release. Collectives—even the mobile kind—are protected from prosecution under state law as long as they abide by the rules. The problem: not everyone agrees on the specifics of those rules.
In 1996, California voters passed Proposition 215, the Compassionate Use Act, decriminalizing the cultivation and use of marijuana for those with a doctor’s recommendation. The law was further expanded in January 2004 with Senate Bill 420, which established the Medical Marijuana Program and mandated an identification card system for patients and caregivers.
In 2008, the Office of the Attorney General sought to define the rules for operators of collectives and cooperatives by publishing a set of guidelines for law enforcement and users of medicinal cannabis to better understand how they’re allowed to cultivate, transport, possess, and use medicinal marijuana.
According to the guidelines, a “collective” is a group that cultivates medical marijuana for its patients and caregiver members, and facilitates the collaborative efforts of its members—including allocation of costs and revenues. As such, the document reads, a collective may have to function as a business to carry out its activities.
According to NTF, collectives are allowed to divvy up cultivated marijuana to their members, but NTF Commander Rodney John told New Times in an early January phone interview that those arrested in the investigation broke the law by accepting cash for the medical marijuana.
“They are in violation of many of [the guidelines],” John said. “It’s very clear on what you can and cannot do, and they’re not following any of it.”
“Our clients aren’t defending on the grounds that they were primary caregivers,” said Patrick Fisher, of the SLO-based law firm Fisher & Fisher, which is representing a majority of the defendants. “They’re defending on the grounds that they were operating legally as a collective, only selling to members of their collectives for no profit. And that’s protected.”
According to John, the Attorney General’s guidelines are merely opinion, and not, in fact, state law.
“He’s right. But he’s also not telling the whole story,” Fisher said. “Some of our clients were saying the agents told them, ‘The Attorney General’s guidelines don’t mean shit.’ Well, sorry, but they do mean shit. They should be given substantial weight. And that’s really the thing—the guidelines are consistent with the law.”
Under the guidelines, collectives aren’t authorized to profit from the sale of marijuana; they must only sell to members; and they must obtain a seller’s permit and pay sales tax for all transactions.
“These people, they weren’t making dough on this. In fact, some were losing thousands of dollars on this,” Fisher said. “But they did it because they believe in providing this service to people who need it.”
Fisher told New Times that recent case law, such as 2008’s People v. Mentch, has helped define the state’s understanding of caregivers and collectives with regard to medical marijuana, and case law has been ignored by law enforcement.
“The law isn’t as complicated as some would like to make it seem. It’s not,” Fisher said.
Though there’s disagreement about specifics of the law between police and the legal community, Fisher said every indication so far is that his clients didn’t break the law.
That opinion seemed validated on Jan. 11, when, during a second round of preliminary hearings, prosecutors rejected three of the 15 defendants’ cases.
“It’s been a hot potato, with the Tamagnis, especially,” Fisher said, referring to Rachel and Chip Tamagni, whose Paso Robles home was raided after their Trilogy Health Services collective was targeted in the investigation. “I was informed that their file was actually put on [District Attorney] Gerald Shea’s desk. Now, that raises concerns for me because that tells me maybe nobody else knows how to approach this.”
Deputy District Attorney Jerret Gran said the cases in question were kicked back to law enforcement for further investigation and that he hadn’t been informed whether charges might yet be filed on the Tamagnis—but “it is a possibility.”
“Up to this point, [the DA’s people] really haven’t done anything but reject [charges]. So I think they deserve a pat on the back,” Fisher said. “I think so far they’re handling things reasonably.”
According to the NTF’s press release, the investigation began after agents received information “that several individuals were selling marijuana through mobile marijuana dispensaries.”
The statements of probable cause drafted by NTF investigators used to secure the eight search warrants provide more details about how the investigation was conducted.
According to the records, on Oct. 8, 2010, a SLOPD detective was instructed to go undercover and seek a medical marijuana evaluation from San Luis Obispo-based physician Dr. Atsuko Rees. The officer, operating under the alias Amy Dobson, complained of back pain, paid $150, and was issued a recommendation for medicinal marijuana. Rees’ office then provided the officer with a list of local medical marijuana delivery services.
One of those listed was Trilogy Health Services. On Nov. 9, the officer contacted Rachel Tamagni to set up an appointment. Rachel reportedly verified Dobson’s physician recommendation and arranged to meet Dobson. In order to conduct the controlled buys, officers used a vacant apartment on the 1100 block of Leff Street in San Luis Obispo.
“I knew something was hinky,” Rachel said in an interview with New Times. “There was nothing in [the apartment]. It was empty: hardly any furniture, anything on the walls, just a big tall bong sitting in the corner.”
According to the reports, Rachel required that Dobson provide a copy of her recommendation and had her fill out forms initiating Dobson’s membership to the collective. Rachel then explained the rules of the Medical Marijuana Program. The officer bought a quarter-ounce for $75, and Tamagni left.
“It’s funny, nowhere [in the records] is it mentioned—even though I’ll bet it’s recorded—that Rachel even offered to bring down her massage table and do reflexology to Amy [for her back],” Chip Tamagni said. “We gave Amy a brochure for all our services—health services, which are free to members of our collective.”
Dobson scheduled a second delivery to the Leff Street apartment about a week later, followed by a third at a public parking lot on Dec. 15.
The Tamagnis say they started Trilogy Health Services for all the right reasons. Rachel, who said she was misdiagnosed with bipolar disorder at a young age, was prescribed a galaxy of prescription drugs and soon found herself battling depression because of them.
She said that changed when she got herself off the pharmaceuticals and obtained her physician’s recommendation for medicinal marijuana. She earned a certificate from the International Institute of Holistic Healing and Health, and in 2009 got a business license for health and fitness counseling.
Chip also got his recommendation after being prescribed Xanax for anxiety attacks following the loss of the couple’s home in a 2004 fire. Chip, who owns a tree-trimming business, said the constant regimen of Xanax was a detriment to his safety in his profession.
They apparently made all the proper arrangements, attending a course on legal operation from attorneys at Greenway University in Oakland, filing a fictitious business statement, acquiring a seller’s permit, and paying sales tax.
“We said, ‘If we’re going to do this, let’s do it right,’” Chip said.
The couple said the business progressed to a collective when they discovered some of their friends possessed recommendations.
“This was never about money,” Rachel said. “It was about people’s right to choose. Safely. With dignity.”
At approximately 7 a.m. on Dec. 28, 2010, Chip remembers stepping out to his driveway to warm up his truck. He went back inside to say goodbye to his wife before he set off for another day of work.
Chip said there was a pounding at the door, and he opened it to find 12 to 15 officers with hands on their firearms. He said the couple—Rachel had just emerged from the bathroom—was instructed to sit in their living room while the officers went through their belongings, confiscating a computer hard drive, a briefcase containing their clients’ information, roughly 8 to 10 ounces of marijuana, and a binder containing all of the collective’s paperwork and legal documents.
“I asked to see the search warrant and was told, ‘We’ll get to that later,’” Rachel said. “I told him, ‘We have all our legal paperwork right by the door.’ And he just picked it up and threw it into a box.”
The Tamagnis said their three dogs began to “go crazy” over the commotion and were locked in a bathroom.
“It wasn’t until two hours after they started tearing through everything and we were told we were going to be arrested that I realized nothing mattered to them,” she recalled. “We were never presumed innocent. We were guilty.”
The Tamagnis were handcuffed, placed in a van, and taken to county jail where they were booked on suspicion of felony sale of marijuana and possession with intent to sell.
The couple spent the day in jail, and upon their release found they had another worry to contend with. They said they returned home to find Tiki, their Chihuahua, was still shaking and had developed a “reverse sneeze.” They took her to the vet, who gave her medication.
“When we got up the next morning, she was stiff,” Chip said solemnly. “It was her eighth birthday.”
He said the veterinarian told him the stress from the incident “could have absolutely contributed” to the death of their dog, which they had long known had a heart murmur.
As of this printing, the Tamagnis remain in a legal No Man’s Land: No charges have been filed, but they’re not off the hook, either. Their confiscated property hasn’t been returned, and they say they’re fighting daily to cope with the resulting anger and paranoia.
“It’s horrible. We don’t know if they’re following us, we don’t know if they’re targeting us, if they’re going to try to entrap us. We just have no idea,” Rachel said. “It’s like being held hostage.”
“Our house, we could clean it for hours straight, and it’s still going to feel dirty,” Chip said. “I don’t know if we’ll ever be comfortable living there again.”
“The reality is, though, that even after all this, I would still provide [Amy Dobson] with medication if she asked, because she is a member of our collective and she has a valid, verified recommendation,” Rachel said.
Chris and Amy Austin took over operation of Open Access Foundation collective in August 2010. Chris, a real estate and mortgage broker, and Amy, a real estate agent and stay-at-home mother of two, aren’t the type of people you would imagine managing a marijuana collective.
The Austins were also contacted by Dobson on Nov. 4. After checking all her paperwork and adding her as a member to the collective, Austin sold her an eighth of an ounce for $50.
On the morning of Dec. 28, 2010, the Austins’ home was raided by 15 to 20 officers armed with flak jackets, automatic rifles, ski masks, and search dogs. Austin said helicopters were hovering overhead.
“The whole house was shaking,” Chris said. “I thought the kids were jumping around or something at first.”
Chris said officers involved in the search were unprofessional and “nasty,” forcing his mother-in-law to the ground, causing a four-inch cut to her leg, and staring and making comments about his wife—who wasn’t properly dressed—as she lay handcuffed on the ground.
After watching agents “rip through” their house, the Austins and Amy’s brother, who was visiting from Arizona, were piled into a van where they met six other collective operators who were arrested throughout the night. They said one of the van’s occupants was forced to urinate in the van after being held there for hours, pleading with officers to take him to a restroom.
According to Fisher and other sources familiar with the investigation and subsequent arrests, the Dec. 30 media release from the NTF regarding the arrests painted a “misleading” portrait of the situation.
John later told New Times that the cocaine found was from a residence in Tarzana. Additionally, John said the seven firearms confiscated during the searches were legal and registered, but because California health and safety code prohibits firearms in the proximity of narcotics—and because the officers suspected the owner to be already in violation of the Compassionate Use Act—the marijuana was considered a narcotic, and therefore, the firearms were de facto illegal.
The release also claimed $492,931 “in U.S. currency” was seized. However, John said that figure was a combination of cash and funds from the 15 suspects’ bank accounts.
New Times also took a look at the figure for the total haul: $3,482,308. According to a random survey from the online menus of five California medical marijuana dispensaries, and conversations with a number of their owners and operators, that figure seems highly inflated.
One San Diego-based collective operator—who offered to help on the condition of anonymity—said even the most liberal estimate for the marijuana buds and plants, the hash, hash oil, and even the street value for the four grams of cocaine came to less than half of the NTF’s appraised amount, at $1,639,840.
“I don’t know where they would come up with that figure, but it’s not surprising,” the operator said. “And for seven collectives? It still doesn’t seem like all that much medicine.”
“It was all the police’s version of reality. They see it their way, and the rest of the world sees it another way,” Austin said of the press release. “It’s just ludicrous that they would put out a statement like that, which was so defamatory to everybody that was arrested.
“They lumped everybody together and made it sound like we were all one big conspiracy,” he said.
The timing of the operation, on the cusp of a new sheriff taking over as the county’s top lawman, had many residents pointing fingers at outgoing Sheriff Pat Hedges. However, the NTF’s makeup suggests the county’s various city police departments may have played a larger role in the current operation than the Sheriff’s Department.
The NTF is operated by the California Department of Justice’s Bureau of Narcotic Enforcement, and, as such, holds statewide jurisdiction. It’s overseen by Cmdr. John, who supervises a revolving staff of seven to 10 investigators from local contributing police departments, the District Attorney’s Office, the San Luis Obispo County Probation Department, and the California Highway Patrol.
Operations are voted on by the NTF’s Board of Governors—or “the BOGs”—according to the current chair, Pismo Beach Police Chief Jeff Norton, who took over for Paso Robles Chief Lisa Solomon in early January 2011.
Norton explained the NTF operates on an annual budget of roughly $50,000, which comes from participating city departments, some of which contribute a full-time officer to the NTF or funding. Norton said a typical annual contribution averages roughly $20,000.
Morro Bay is currently the only city department in the county that doesn’t contribute funding or personnel to the NTF.
The state pays for housing, training, and personnel costs, Norton said.
Asked if he was familiar with some of the complaints about the recent operation, Norton said he understands the emotion involved with the issue of medical marijuana, and he was sorry to see one of the individuals arrested in the raids soil himself in the escort van after waiting for hours to be transported to county jail.
“That was an unfortunate thing, and it shouldn’t have happened,” Norton said.
Norton said the motivation for this operation came after learning about some of the problems Los Angeles was having with regulating its storefront dispensary operators, and was heightened by a pair of recent medical marijuana-related home invasion robberies in Morro Bay and Los Osos.
Norton said profit lies at the heart of the issue and that he agrees the law is murky. But he said he expects the new sheriff to take a lead in drafting local law enforcement agents’ expectations for collectives operating in the county.
The battle rages on
Norton isn’t the only one looking for clarity from the new sheriff. On Jan. 11, following the December NTF operation, defendants and a number of concerned residents protested the raids with members of the pro-medical marijuana group Americans for Safe Access (ASA) on the steps of the County Courthouse.
“It’s been 15 years since voters passed Prop. 215, and law enforcement still can’t seem to get a grasp of the law,” Linda Hill, spokeswoman for the local chapter of ASA, said after the rally. “We hope the public agencies and government officials will really take heed to this and finally listen.”
Rachel Tamagni also spoke before the County Board of Supervisors at their Jan. 11 meeting to share their outrage over the operation. Two supervisors later voiced similar concerns and confirmed they’ll be speaking with Sheriff Ian Parkinson to clarify his stance on medical marijuana.
“I want to be sure that the sheriff is applying his precious resources in a rational way,” District 2 Supervisor Bruce Gibson said, adding that he’s not familiar with the specifics of any of the defendants’ cases. “I would hope that he would pursue violations of our drug laws, but not a fruitless pursuit of those following the rules.”
Parkinson, meanwhile, told New Times he’s currently researching case law and, with the help of his staff, is drafting specific guidelines for his officers in the department’s own narcotics unit. As sheriff, Parkinson now holds a seat on the BOGs, and he hopes the expectations for collectives he drafts for the Sheriff’s Department will “bleed into” the NTF.
Many are watching to see if Parkinson follows statements made during his summer campaign to take a logical approach to medical marijuana and target dispensaries and collectives who are in clear violation of the law. Others are wondering what Parkinson knew about the NTF operation and when he knew it.
“I wasn’t here when the raid happened. When I say I was briefed, I was briefed after they had made these arrests,” Parkinson told New Times. “As to what the motivation behind it was, it was kind of assumed [the NTF] felt clearly that they were violating the law, and they got search warrants, so I didn’t ask those questions.”
One local attorney said that according to the records, the SLOPD played a major role in the operation, using at least two of its SORT (Situation-Oriented Response Team) officers to conduct the undercover transactions. The NTF agent in charge of the operation, Jason Dickel, is also a full-time SLOPD officer, and the dummy apartment the NTF used was in downtown SLO, he noted. As SLOPD captain, he said, Parkinson should have known about the investigation before the arrests.
“I walked in [as sheriff] right after this incident happened, of course, and everybody calls and wants to talk to me about it, and I haven’t much detail—I’ve just been briefed that they’ve made these arrests,” Parkinson said, largely pleading ignorance.
Parkinson said he stands by his pledge to take a rational approach to medical marijuana collectives and that those who follow the rules should be given equal protection under the law.
“If Joe Citizen wants to participate in this and wants to provide medical marijuana to somebody who has a legitimate doctor’s recommendation, I want them to comply,” he said. “But there are people that want to operate under [Proposition] 215 publicly to the rest of us, but the truth is they’re not, and they know they’re not, and they’re organized crime. … And it hurts those who are trying to do it legitimately.”
Meanwhile, the Tamagnis, while trying to resume life as usual, always keep their cell phones within reach, awaiting a final word on their case.
“Everything’s in limbo. Every time the dogs bark, we wonder if they’re staging to come again. Every time I get out to warm up my truck in the morning, I’m looking up and down the street wondering if they’re coming again,” Chip said. “We feel like we’re prisoners in our own home, basically.”
“This whole thing is about a misunderstanding of the law by law enforcement. And the DA’s Office has the unfortunate task of trying to clean it up,” attorney Fisher said, adding that all his clients are prepared to take their cases to trial if necessary.
He added: “It’s like law enforcement rounded all these people up and then just unloaded everything on the DA’s office and said, ‘Here, you figure it out—we know they did something wrong.’”
Robert A. McDonald contributed to this article. Staff Writer Matt Fountain can be reached at firstname.lastname@example.org.
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