At a dramatic preliminary hearing for self-described marijuana activist Laura Hamburg last Thursday, retired Superior Court Judge James Luther threw out all the evidence the Sheriff's Department obtained during the execution of a search warrant at the Hamburgs' Boonville Road property. The basis of the October raid, Luther said, was obtained via an "intentional omission" — i.e., it did not properly include Ms. Hamburg's claim that she was a caregiver grower for two (or three) other people.
Ms. Hamburg had been charged with possession of marijuana for sale, cultivation of marijuana for sale and renting a building for the purposes of marijuana cultivation. The raid occurred on October 25th of last year.
According to a transcript of the tape-recorded conversation between lead raid team deputy, Raymond Hendry, and Ms. Hamburg, which was submitted to the court for last week's hearing, it is clear that neither the deputy nor Ms. Hamburg were able to come up with the right dope, so to speak.
Although the case concerned a rather modest grow with a relatively cooperative grower present as tour guide in Ms. Hamburg, some eleven (count 'em) law enforcement officers were on scene as well as the DA's two pot prosecutors, Lee Nerli and Matt Finnegan.
The cops were on property owned by a former Congressman, Laura's father, Dan Hamburg. If they'd been busting a gang of tweakers holed up in a Willits motel it is doubtful if a third of the county's law enforcement capacity would have been present. They certainly wouldn't have been as polite. Deputy Hendry had initially come out to the Hamburg place looking for Matt Hamburg who had apparently violated a restraining order. Hendry noted the presence of devil weed and, clearly, ran back to headquarters with the news that "Wowee Maui we've got Mr. Big! We've got Dan Hamburg!"
Why so many law enforcement people for a pot grow operated by an otherwise respectable family?
The big cop turnout seems to have been in response to (1) that a lot of dope appeared to be growing and processed at the home of a former Congressman and (2) the Hamburg family quickly arranged for the presence of former Assistant DA Keith Faulder who, having been fired from his job in the DA's office the day after his opponent, Meredith Lintott, took office last June after promising during the campaign she wouldn't fire him merely because he'd run against her, has become one of the County's most prominent marijuana defense specialists.
Faulder was summoned to the scene by Ms. Hamburg around the time Deputy Hendry began to question her about her marijuana garden.
According to two unusual interviews conducted by DA Investigator Kevin DeVries with Deputy DAs Finnegan and Nerli, the two DAs were summoned to the scene soon after Faulder arrived. By the time Finnegan and Nerli got to Hamburg's property, most of the Sheriff's Department's top brass was also on scene. Such a large cop turn out at a simple pot bust is unprecedented in Mendo's storied pot-raid history. Sheriff Tom Allman was there for awhile, as was Captain Kevin Broin, Captain Kurt Smallcomb, Lieutenant Rusty Noe, Sergeant Greg Van Patten, at least one other sergeant, and several other deputies besides the intrepid Deputy Hendry.
The interview of Ms. Hamburg conducted by Hendry and Captain Smallcomb opens with Hendry trying to find out how many people Ms. Hamburg was growing for. Ms. Hamburg explains she has three siblings, one of whom is her younger brother Matt — the person originally being sought by Deputy Hendry concerning violation of a court order.
Ms. Hamburg first claims to be growing for her sister and herself, but she does not have Prop 215 documentation on hand for her sister, Elizabeth, saying they had only recently applied for the cards. Ms. Hamburg then points out that she'd already harvested several dozen of the pot plants — the ones intended for Elizabeth.
Deputy Hendry: "Where's the process from this that's been topped?"
Ms. Hamburg replies, "Oh, I'm using it to make a tincture."
Hendry: "A what?"
Hamburg: "A tincture."
Hendry: "What's that?"
Hamburg: "Like a little, a little — the stuff that's been topped is my… is Lizzie's. The ones that are up are mine, but I'm going to use it to make a tincture for sleeping and for apnea which is, they are a little droplet thing."
So commences a dialogue of the deaf.
Hamburg then repeats that the cut plants are for her sister, adding, "The ones that still have to be cut down are mine and I'm just getting ready to harvest. That's why that gentlemen is here to help me." (Ms. Hamburg refers to an unidentified man standing in the garden during the interview.)
Hendry and Smallcomb then grill Ms. Hamburg about some pot plant leavings on her shirt and the fact that they saw her in her house with a tub of green leafy stuff through a window.
Ms. Hamburg says the tub was full of shake (leaves and trimmings). Hendry then asks how much trimmed or processed bud Ms. Hamburg has.
Hamburg: "I have about two pounds."
Hendry: "Which is trimmed or hanging?"
Hamburg: "Right. And I was just going through the, the keif part, which is the shake part."
Ms. Hamburg explains that there's one stalk hanging and the rest of it is dried but not trimmed.
When Hendry asks to see what's in the tub, Ms. Hamburg replies, "You're welcome to, to get a warrant and come out here and talk to me about it if you prefer, truly."
Hendry: "If you have a marijuana grow, you have to have your recommendations on site so when we show up, so that well, you can't go, 'Hey Jimmy, bring your recommendation because the cops are here'."
Hamburg: "We have been so good and so careful and not only getting this, but getting the state ID and the whole thing."
Hendry: "Do you know how much processed marijuana you can have?"
Hamburg: "No. … For this county? I don't know."
(Hamburg is a "marijuana activist" in Mendocino County and she doesn't know how much processed marijuana she can have?)
Hendry piles on more confusion by claiming that the two pound limit includes pot that's drying but not processed. Our understanding is that the two pounds allowed by Mendocino County Code only applies to processed or trimmed marijuana bud, not plants or parts of plants that are drying but not trimmed.
Ms. Hamburg explains that she had a "serious powdery mildew and bud rot problem," which caused her to "whack off tons and tons and tons of it, probably a third of this is just chucked." She tells Hendry that the chucked plants were put in the compost pile and the cops can see it there for themselves.
Ms. Hamburg tells the deputy she has "double cards and I've been so good about it."
But that doesn't convince a skeptical Hendry: "I can guarantee you have more than two pounds of processed marijuana on your property. … I do this every day and everybody lies to me. I have yet to find somebody who actually tells me the truth. … I just appreciate the truth like every other human being."
Then begins the attempt to count Hamburg's pot plants. Smallcomb counts them. Ms. Hamburg counts them. Hendry counts them. You can hear them counting… counting… counting… Here's a single plant, there's one with "two angles…" Smallcomb at one point says, "I count seventy or eighty. And there's two missing, see. That's two that's in pots." Hendry asks about some others. Hamburg herself counts all the way up to 52.
Hendry: "Ma'am, what's growing under that little canopy there?
Hamburg: "There's nothing here."
Hendry: "What was there?"
Hamburg: "I had vegetables here."
Hendry: "Any marijuana in here?"
Hamburg: "I had some marijuana here, but this was from, this was from earlier in the year."
Ms. Hamburg claims some of the plants are not growing and should not count.
As they continue to find root balls and count them as plants (or former plants), Deputy Hendry insists, "We're trying to help you out."
Smallcomb finds some more plants or root balls but continues counting, root balls and all.
After admitting to some nervousness, Ms. Hamburg tells Hendry that the "excess" marijuana is used to make the tincture.
Hendry: "So you use all the extra marijuana to make little eye drops?"
Hamburg: "No no no no no no. It's something you drink. It's not eye drops."
Smallcomb then asks Ms. Hamburg if her father, former Congressman Dan Hamburg and a well known marijuana activist in his own right, grows pot.
Hamburg: "You have to ask Dad."
More back and forth about Dad. Smallcomb says he remembers that Dan Hamburg used to grow pot.
Ms. Hamburg volunteers to pull a few plants if she's really over the limit.
Hendry then insists — again — that he knows she's got more than two pounds.
Ms. Hamburg replies that her sister may have a couple pounds of her own, but that the cops have to ask her sister about them. Hamburg also admits that her sister's documentation should have been on hand.
Hamburg also says her own two pounds is in the tub but she doesn't want to bring the tub out and she won't let the cops see it. Hendry says if he has to he can get a warrant to search the house. Ms. Hamburg asks, "Why do you guys want to do that to me?"
Hendry: "We're checking compliance ma'am."
Compliance requires eleven cops and two DAs?
Smallcomb adds, "…and you're already outside of compliance."
* * *
Faulder arrives and assesses the situation and confers with his client. He tells the cops that Ms. Hamburg is also growing for her neighbor, a Ms. Jean North. Faulder tells the cops that he can get the neighbor and the sister and have them appear to assert their own Prop 215 legitimacy.
What's not clear from the court documents is the timing of all this. The cops say that they only heard about the third Prop 215 claim (Ms. North's) after they had obtained the search warrant — but before they served it.
Faulder claims that they knew about the three recommendations before they wrote the affidavit in support of the warrant and they intentionally omitted this information to get Judge Henderson (a long time political opponent of Hamburg's) to sign the warrant.
Judge Luther said last Thursday that he believed that if the deputies had included what they should have known about the total number of recommendations in their affidavit, that Judge Henderson would not have signed the warrant.
Nevertheless, the full cop and DA crew arrived back on scene, having obtained their search warrant.
Faulder noticed that the address on the warrant is wrong. "This is an illegal warrant," declared Faulder. "It can not be executed."
Faulder also told Captain Smallcomb more than once that executing a warrant based on known omissions could make him personally liable for a lawsuit. Smallcomb gets worried and asks Nerli and Finnegan about his potential liability. Nerli and Finnegan aren't sure, so they call Chief Deputy DA Kitty Houston who opined that anybody can sue anybody, but the question is whether they can be "effectively" sued. Houston doesn't think such a suit would be successful.
But neither Houston, Nerli nor Finnegan are particularly experienced in civil rights litigation.
Smallcomb, for his part, probably remembers the successful — and very embarrassing to the Sheriff's Department — suit filed in the 1990s by Marc Tosca, a gay Ukiah man whose property was raided and searched on the basis of transparently bogus information from one James Mallo, a low-life snitch with a very long criminal rap sheet who just might be the least credible person on the Northcoast, if not the country. In that case, Tosca won, and the Sheriff's officers involved were forced to sign a formal apology to Tosca and the County was ordered to pave Tosca's road. (It's been years now and the road's still not paved.)
The large law enforcement response at the Hamburg Ranch seems to have been triggered by Faulder's arrival on the scene and Faulder's declarations that the warrant was illegal, that Smallcomb might be liable for a lawsuit, and that the warrant was obtained on false pretenses by leaving out the full Prop 215 claims of Ms. Hamburg, her sister and Ms. North.
In fact, during their pseudo self-depositions, the two deputy DAs say that they and their uniformed cohorts were "intimidated" by Faulder, so intimidated that they finally got tired of Faulder's declarations and told him he'd be arrested if he didn't leave. Faulder left. Then the cops went about their search and found $10,000 in cash and more marijuana, of course. The cops first said they found about 60 pounds of processed bud. In court Hendry said Hamburg had "well over ten pounds." Faulder says Hamburg's alleged stash was mostly wet leaf, shake and trimmings — not "processed bud."
Whatever. Judge Luther has now tossed out most of the evidence obtained with the flawed search warrant with a ruling that included the phrase "intentional omission."
The DA is reconsidering the charges based on the remaining evidence, contradictory and unclear as it is, related to the plants in the pot garden prior to the warrant. And Ms. Hamburg and Mr. Faulder have a judge's ruling that they may be able to use as the basis of their own civil rights case against the county and the Sheriff's Department.
Ms. Hamburg was certainly acting suspiciously and may have been somewhat out of compliance. But, if there are going to be such specific rules — two pounds of processed bud and 25 mature flowering female plants — why not just issue her a fix-it ticket or fine her and be done with it? Then she could argue that case like an ordinary traffic ticket if she wanted to. Instead, the whole case was rushed for obviously petty (and probably political) reasons and has now escalated into another only-in-Mendoland fiasco that proves once again that Mendo can screw up even the simplest matter.
If a mere marijuana compliance check requires most of Mendo's top law enforcement horsepower — and it still gets screwed up — it's no wonder that ordinary beat cops are frustrated by the confusing state of Medical Marijuana law in Mendocino County as pot grows increase while arrests go down.