The preliminary hearing for Kelly Boss of Philo ended in a holding order last week, which means the state showed up with enough evidence to make a reasonable person, Ukiah Judge John Behnke in this case, suspect that young Mr. Boss was living wayyyy beyond his means — and that he was growing and selling marijuana commercially to live the high life.
In the end, Boss’s defense lawyer, E.D. Lerman, in a fatalistic voice, said she had known all along that would happen, but felt the officers who busted her client did a poor job in their investigation in that they didn’t try to ascertain whether her client may have been working for a cooperative and supplying a legitimate dispensary. She didn’t seem to get it, even after all these years, that the police are on the other side, they work for the prosecution.
Ms. Lerman asked CHP Officer Partlow, a member of the Task Force that busted Boss’s indoor grow on Cameron Road, Elk, last May 12, if he asked about whether the pot (approximately 69 pounds in various stages of being processed and 1260 plants) was for a dispensary. Partlow said no, he hadn’t asked. His demeanor on the stand suggested that only a fool would have expected him to ask. Partlow made it clear he hadn't been there to substantiate Boss’s cover story. That’s not his job, in spite of the motto (no longer in use, it seems) “to protect and serve.” Partlow's bullshit detector seems fully operational. He's been on the task force eight years, and knows all the cover stories, and how to deconstruct them.
Did anyone mention that it was for a dispensary? They may have, he didn’t recall.
Lerman: “Do you remember being told that my client belonged to a co-op and that the marijuana was for a dispensary in LA?”
Partlow: “I don’t recall, but there may have been some statement about recommendations.”
The officer certainly didn’t seem very interested. What most growers don’t know, or seem not to want to know, is that these doctor’s recommendations, which the pot brigades seem to confuse with kryptonite, really cut very little ice with the cops, much less in court. The judges are far more interested in indications of profit-making, and what Partlow wanted to know from the people at the Elk residence, who he suspected were merely trimmers and other low-level marijuana workers, was where the cash and bookkeeping records — “Pay & Owe sheets” — were.
The task force had become curious about the Cameron Road address because of a PG&E bill of $4500 per month. Special Agent Peter Hoyle began digging into public records and found that the owner of the Elk property had also bought a winery in Philo on Chardonnay Lane for $1.2 million when his IRS 1040 tax return form asserted that his income was only $40,000 a year. A search warrant was granted, and this is where they found the bundles of cash and the Pay & Owe sheets.
The legendary Special Agent Peter Hoyle took the stand.
DA David Eyster: “Did you search the Chardonnay Lane residence in Philo?”
Hoyle: “Yes, I did.”
Eyster: “Find any items pertaining to the sale of marijuana?”
Hoyle: “I did.”
Hoyle: “In a Toyota pickup parked out front, and in the master bedroom.”
Eyster: “What kind of items did you find?”
Hoyle: “Pay and Owe sheets.”
Eyster: “Can you describe the P&O sheets?”
Hoyle: “Yes. The sheets contained lists of sales. For instance, one said 5 @ 24; another said 4 @16. There were about 15 pages of these.”
Eyster: “How did you interpret these numbers and symbols?”
Hoyle: “I interpreted it to mean that in the first instance, Mr. Boss had sold five pounds at $2400 each, and in the second he’d sold four pounds at $1600. So the 5 @ 24 would be $12,000; and the 4 @ 16 would be $6400.”
Eyster: “Did you find any cash?”
Hoyle: “Yes. Two bundles, approximately $48,000.”
Eyster: “Did you ascertain that he had a mortgage payment for the Cameron Road property; and if so, how much was it?”
Hoyle: “Yes. His wife told me it was $4000 per month.”
Eyster: “How much was the monthly mortgage payment on the Chardonnay Lane property?”
Hoyle: “It was $9000.”
Eyster: “When was the Chardonnay Lane property purchased?”
Hoyle: “In 2011.”
Eyster: “Do you know the price on that property?”
Hoyle: “It was $1.2 million.”
Eyster: “Did you obtain Mr. Boss’s IRS statements?”
Holye: “Yes, his 1040 reflected an income of $40,000.”
Lerman: “Objection, relevance.”
Behnke: “It may be a little remote, but it’s not totally irrelevant. Overruled.”
Eyster: “Was there any indication that Mr. Boss was trying to conceal money?”
Hoyle: “Yes. He was using numerous bank accounts at various financial institutions, and making deposits at each within an hour, sometimes only six minutes apart. He would deposit $2300 at one bank, and then $2100 at another, then $1000 at a third bank.”
Eyster: “Nothing further at this time.”
Behnke: “Whose pickup was at the Chardonnay Lane residence.”
Hoyle: “It was Mr. Boss’s.”
Defense Attorney Lerman stood to question Hoyle: “The Chardonnay property — was it an operational winery?”
Hoyle: “I don’t doubt that wine was being made there.”
Lerman: “Do you know who owns the note on that property?”
Lerman: “Did you ever ask Mr. Boss to turn over his medical records?”
Eyster: “Objection. The officers are not allowed to go there.”
Lerman: “He could have come to my office.”
Behnke: “Objection sustained.”
Lerman: “Did you find any medical marijuana recommendations for Mr. Boss?”
Hoyle: “I believe they were expired.”
Lerman: “Did you read Mr. Boss’s wife her Miranda rights?”
Eyster: “Objection. Nothing’s being charged against Mr. Boss’s wife.”
Behnke: “Objection sustained.”
Lerman: “Nothing further.”
Eyster: “Was she [Boss’s wife] being truthful with you?”
Hoyle: “With some exceptions, yes. I think she lied about the marijuana, but was truthful about the finances.”
Lerman: “Are there legitimate reasons for having various bank accounts?”
Lerman: “So what led you to conclude that this was a commercial operation?”
Hoyle: “The volume of marijuana and the way it was packaged, the trimmers at the Cameron Road residence, and the amount earned from sales.”
Behnke: “Do you wish to argue, Ms. Lerman?”
Lerman: “The court is going to hold Mr. Boss to answer, but I think the investigation was poor and no effort was made by the officers to show that this could have been a legitimate grow.”
The court did hold Mr. Boss to answer, and at least one observer thought it was absurd to expect the officers to try and substantiate Boss’s cover story. After all, the fundamental principle behind Proposition 215 is that medical use is a positive defense, not an automatic exemption from arrest. In other words: “Tell it to the judge” — or jury as the case may be.