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Why California Cops Raid Marijuana First, and Investigate Later - By - September 23, 2015 - SF Weekly
SF Weekly

Why California Cops Raid Marijuana First, and Investigate Later

"Oaky" Joe Munson surveys the hillside where his cannabis plants once stood.

At about 7:30 a.m. last Wednesday, James Joseph Munson was shouting at his two children, asking who had failed to feed the cat, when he saw lights flash through a window and onto a wall in his Sonoma County home.

Hollering is customary for the 52-year-old, who is near-deaf even with his hearing aids. Seeing odd lights is not.

Cat food can in hand, Munson went to the front door to investigate. “Twenty to thirty” Sonoma County sheriff's deputies in camouflage and Kevlar were amassed outside, weapons drawn and aimed at his chest and head. It was the sheriff's tactical squad, complete with an armored truck. The lights he'd seen flashing through his front window, he told me later, were the red and green laser sights now dancing on his face and chest.

“Aw, shee-it,” he said.

“Hit the ground!” a voice called out.

“Fuck you,” Munson replied, according to his retelling. “I'm not getting on the ground. I have a broken back.”

Instead, Munson put down the cat food and raised his hands. Deputies led him to a storage trailer on the property, where a few young men in their 20s — Munson's workers, rousted from their tents — were already waiting. Soon, they were joined by Munson's wife, Atsuko, and their two children, ages 11 and 5. They would stay there until about 11 a.m. while deputies searched the hilltop property where Munson and his crew had been tending more than 1,000 marijuana plants. Harvest was less than a month away.

This was not Munson's first rodeo. He's been busted eight times before in three different counties. Each time, law enforcement removed his entire crop — and each time Munson dragged into a courtroom the sick and disabled people to whom he gives away cannabis for free, and whose medical marijuana recommendations are posted on-site at the garden in apparent compliance with California medical marijuana law. Every time, he was acquitted of all charges, court records show.

This time, with legalization supposedly around the corner and his last bust more than five years in the past, Munson thought things would be different. Sure, he had over 1,000 plants — but he also had sixty recommendations, meaning, according to his interpretation of county law, he could have 1,800 plants.

Instead, deputies cut down the entire crop — which, according to their official tally, clocked in at an eyebrow-raising 1,300 plants and logic-defying “14,000 pounds” — and arrested Munson and eight others. (Atsuko was released to drive their daughters to school, where they had a presentation to give that day.)

A week later, Munson and his workers are all free. As of press deadline, nobody has been charged with a crime.

That doesn't matter to Munson, who lost a year's worth of work in one morning. And it doesn't matter to California law enforcement. Large-scale or small, cannabis cultivation is often dealt with by raiding first and asking questions later — including whether or not the garden is legal. Gardens even a few plants over the limit can be eradicated without warning, or a chance to keep what is legal.

Hard data is scant, but anecdotes and interviews with attorneys, growers, and sheriffs confirm that Munson's story is typical.

“Every year it gets better in terms of law enforcement giving people notice first,” says Melissa Sanchez, a Los Angeles-based attorney who specializes in grower compliance, “but the more negative approach of cutting down first and asking questions later does seems to come in spurts. And that's really unfortunate. We don't want that.”

For someone who can't hear, Munson loves to talk. A relentless and shameless self-promoter, whose forehead and jawline give him a vague resemblance to Brett Favre, Munson's friends know him by the self-given nickname “Oaky,” a reference to the business he once had selling firewood to homeowners in St. Francis Wood (the location of the motorcycle wreck that crushed his vertebrae). During our recent talks, he wore a t-shirt with his name on it, along with his slogan: “Do some good.” For him, “good” means giving away loads and loads of marijuana free of charge. (Police scoff and are convinced he is making a profit, but have yet to offer any proof.)

Conversations with him can be hours-long affairs. One point leads into an anecdote about a visit to Atsuko's family in Japan — where, in a hilltop Tokyo mansion, he met the activists working to legalize marijuana in that country and sampled their Strawberry Cough. That leads to tales of spending his “alcoholic” 20s selling dime bags on Polk Street before Atsuko entered his life and convinced him to quit drinking.

He delivers this stream in a high-pitched drawl that comes straight through his nose, a consequence of the bar fight 25 years ago that broke his jaw and took his hearing.

But when he seizes on something, watch out. His eyes darken, his gaze narrows, and facts come out like bullets.

“There was no trespassing, no environmental damage, no diverting of water, no trees cut, no neighbors complained,” he said, ticking off the no-no's that draw police attention. “I'm not a dumb man — section eleven three sixty two of the state code says that people like me are allowed to grow for people who can't.”

Under California law, a medical marijuana patient — that is, someone with a note from a physician that says cannabis could help whatever ails them — can have up to six mature, flowering marijuana plants and up to eight ounces of dried herb at any given time.

Individual counties, however, are free to set their own rules. In Sonoma County, the allowance is three pounds of pot and 30 plants per patient, a fact confirmed by a 2007 memo circulated among Sonoma County law enforcement leaders.

State law also says that patients can “associate collectively” to grow their preferred medicine. In theory, this is meant to give patients too sick to till the soil their allowance. In practice, it has led to retail businesses — dispensaries are supposed to be nonprofit collectives or cooperatives under the law — and massive marijuana plantations visible on Google Earth.

In Mendocino County, lawmakers have set a strict limit of 25 plants per parcel of land.

In Sonoma County, the law is silent as to how big is too big.

“It varies case by case and is based on the totality of the circumstances at the time of the incident,” said Sgt. Cecile Focha, a spokeswoman for the Sonoma Sheriff's Office, which disputes at least one of Munson's claims: forest was clear-cut to make way for plants, she says.

That leaves it up to law enforcement on the ground to make the call. And, as Focha added, “Deputies continue to enforce all laws against marijuana in the same manner as prior to the passage of Proposition 215.”

One of Munson's past foils is Mendocino County Sheriff Tom Allman, who oversaw the county Munson lived in for some time. (The odd fortune of planting a garden next door to one of Allman's narcotics officers, which led to another raid-acquittal cycle, helped send Munson to Sonoma.) The way law enforcement sees it, according to Allman, growers like Munson are playing legal games — and making loads of money while “thumbing their noses at law enforcement.”

“The moral of the story is, don't come up on our radar, and we won't show up on your property,” Allman says. Having a massive garden — no matter how many recommendations you have — is a great way to be noticed. (In Munson's case, he was informed that his garden was spotted from the air.)

Further, state medical marijuana law is not a “right per se.” It's what's called “limited immunity from prosecution,” meaning it's really only any good in a courtroom, not in a pot garden when police come knocking.

This may change if Gov. Jerry Brown signs into law a package of bills sent to his desk by the Legislature earlier this month that would allow activity like Munson's to be licensed. Grows of up to five patients would need no license; large-scale commercial cultivation would be limited, but allowed.

Until then, growers like Munson choose to press their luck at their peril. They may be legal in theory, but that won't stop a raid.

In a way, Munson hopes he gets charged. “Then I get to drag everyone into fucking court — in wheelchairs, dying, everything,” he says. “And then I'm going to sue Sonoma County for millions of dollars.”