Last week Timothy Van Auken went to jail for growing pot on Bell Springs Road in Piercy, which is in northern Mendocino County, very close to the Humboldt County line. Had Mr. Van Auken been a little further north, in Humboldt rather than Mendocino, he never would have been bothered, let alone busted and sent to jail.
Mendo and HumCo are very close geographically, but they’re vastly separated when it comes to law enforcement priorities regarding marijuana cultivation. The problem for people growing pot in Piercy is that they tend to forget they’re not in SoHum, where the living is easy, even though they have a post office box in Redway and do their shopping at Dazey’s Garden Supply.
Then, when COMMET (County of Mendocino Marijuana Eradication Team) comes knocking, they try a defense that may still work on paper — in SoHum where it’ll never be needed anyway — but doesn’t wash in Mendo: They say, “Oh no, it’s not my place, it belongs to somebody else. I was just visiting [for the growing season].” Which is usually true, and the property owner — who takes a lion’s share of the product and profit — plays ignorant, and it gets into a legal wrangle, and everybody gets off.
But in Mendo, both the prosecutor, District Attorney David Eyster, and the judge, Ann Moorman, have each spent many years as defense lawyers for pot growers, and they know all the loopholes and how to sew them up. What’s really entertaining is when a pricy lawyer comes up to Ukiah from Tony Serra’s swish Pier 5 law firm in San Francisco with the bland assurance that he’s going to be dealing with a bunch of hicks and bumpkins, and breeze through to a rich victory.
Enter defense attorney Curtis Briggs, his briefcase bulging with the hard cash retainer only a pot farmer can afford.
At Mr. Van Auken's prelim, which was held back on September 11, 2015, Mendocino Deputy Jim Wells told how he’d flown over the property in a helicopter and seen a large grow, then came back with a search warrant. (In Humboldt, the only helicopters flying over pot grows belong to the Discovery Channel, not law enforcement, although Sheriff Mike Downey is probably riding along just for publicity.)
DA Eyster: “Did you go there with a search warrant?”
Deputy Wells: “Yes, we did.”
Eyster: “Did you give a knock notice?”
Eyster: “Did you find anybody at that house that’s in court today?”
Wells: “Mr. Van Auken. He was upstairs in the two-story structure.”
Eyster: “Was there anyone else on the property?”
Eyster: “Did you find any area where a person could be sleeping in this residence?”
Wells: “Yes, there was a mattress in the upstairs.”
Eyster: “Find any money around this mattress?”
Wells: “Yes, I believe it was 3600-some-odd dollars.”
Eyster: “Find any marijuana?”
Wells: “There were 328 marijuana plants, four-to-six-feet tall, on the property. And downstairs…’
Eyster: “Let me stop you right there. I want to show you People’s Exhibit Number One. What does this exhibit depict?”
Wells: “That’s the garden just up the hill from the residence.”
Eyster: “I am now showing you People’s Two. Do you recognize what’s in that picture?”
Wells: “That’s an eraser board that was downstairs in the residence.”
Eyster: “What’s on the board?”
Wells: “It’s talking about oven temperatures and other stuff to make butane honey oil.”
A by-product of marijuana cultivation is the reckless and illegal manufacture of Butane Honey Oil (BHO) from marijuana leaves, commonly called shake. Amateur chemists, who regularly blow up themselves and their manufacturing sites, get the materials and instructions to make BHO from the internet. The honey oil producers have become so common in NorCal that the industry is currently the number one cause of burn victims at both the UC Davis Burn Center and Shriner’s Children’s Hospitals. In a recent television interview, Dr. David Greenhaigh, who is the chief burn surgeon for both, characterized the overwhelming incidence of burns from BHO lab explosions as an “Epidemic.”
Eyster: “Do you recognize what’s in this picture?”
Wells: “Yes, there were numerous bags filled with shake marijuana.”
Eyster: “Did you find anything in addition to the shake that you associated with the chemical extraction known as butane honey oil?”
Wells: “There were numerous propane tanks with the blue knob that designates they’re filled with Butane… [also] there are numerous cylinders and items, including a vacuum pump used to extract THC used during what they sometimes call a closed system, so they can reuse the same butane.”
Eyster: “When you found those, were they operational?”
Eyster: “How do you know that?”
Wells: “We thought we had relieved the pressure on one of the tanks and when we went to open it [please don’t snicker] it exploded all over us.”
Eyster: “Meaning who?”
Wells: “Sergeant Smith and myself.”
Eyster: “What did you do?”
Wells: “It was a cold, burning liquid. It hit my knees, came up — it ended up turning my jeans, my vest, white. I ran out of the place, stripping off my equipment and clothes.”
Don’t laugh, it’s also a known carcinogen, and put that in your medicinal pipe and smoke it, if you think it’s so funny.
Wells also testified to the discovery of notebooks with pay and owe records for sales of different strains and weights of “product.”
The judge asked Mr. Briggs if he wanted to cross-examine the deputy.
Briggs: “Yeah. This just goes to the particularized suspicion of Mr. Van Auken as far as being the person cultivating. It will be about two questions.”
Okay, hotshot. Get ‘er done.
Briggs: “Did you conduct a pre-raid surveillance of the property?”
Wells: “Just flying over in a helicopter. I believe we took some pictures.”
Briggs: “So there was nothing to assist you in determining when Mr. Van Auken got to the property?”
Briggs: “The equipment — the notebooks — let me just kind of summarize what I think you said and it will be a little faster. If I’m wrong, just tell me. You didn’t find anything — any of the equipment to make the hash or anything like that in the upstairs unit, right?”
Wells: “The upstairs was like living; the lower part was processing and making different types of butane honey oil or bubble hash.”
Briggs: “And downstairs was where you found the white board?”
Briggs: “And then downstairs, is that where you found the notebooks with the strains, the weights, and all that stuff?”
Wells: “No, that was all upstairs.”
Briggs: “That was all upstairs? Where upstairs?”
Wells: “I would have to refer to my report, but I believe it was around the bed.”
Briggs: “Can you go ahead and refresh your recollection by referring to your report and then just put it back down when you’re done?”
Wells: “…It says on a shelf above the bed.”
Briggs: “You don’t know how close Mr. Van Auken was to that material when Sergeant Smith detained him?”
Wells: “No, I do not.”
Briggs: “Did you in the course of your investigation determine who the owner of the property was?”
Wells: “I believe I did. I don’t know if I have that information with me right now.”
Briggs: “I want to make sure you don’t commit yourself to something you don’t intend to commit yourself to. If you don’t recall, you don’t recall. But if you do recall the way you went about finding out who the owner was, could you tell me that?”
Wells: “Normally we run ParcelQuest. We use ParcelQuest and we find out who the owner is.”
Briggs: “Does anything stand out in your mind about the owner as we talk today?”
Wells; “I don’t recall.”
Briggs: “You didn’t do any follow-up investigation on the owner, though, right?”
Wells: “I don’t believe so.”
Slightly more than the promised two questions, but defense attorney Briggs’s drive to shift the blame to the owner ran out of gas at this point. Like most sharecroppers, Van Auken had lots of personal things in his digs at the site, such as his birth certificate, some speeding tickets, receipts from Dazey’s Garden Supply in Redway for his pot pharm, even mail sent to his Redway post office box.
The judge asked Briggs if he wanted to make a case.
Briggs: “I just want to bring up one point briefly. Obviously, what I’m getting at is there’s no sufficient link to the property or there’s quite a bit of doubt as to Mr. Van Auken’s link. But it’s not so much because of the circumstances there, it’s what was not investigated. There’s something standing out here that’s unusual. There’s no owner that was located or questioned or followed up with and that’s — and there’s not enough tying Mr. Van Auken to the crops in the back or the cultivation activity.”
Mr. Briggs seemed disappointed that the prosecution didn’t help his case by dragging the landowner in to confuse the issue. He was becoming angry at the oversight.
“He was found upstairs. The only thing they found upstairs, sounds like, was pay-and-owe sheets. My impression was small, document-type related — not that they’re not significant to sales — but there’s nothing suggesting that Mr. Van Auken was— was connected to those or how many people were living there.”
Briggs threw his hand at Deputy Wells and snarled, “They didn’t do any surveillance prior to serving the warrant, which means that they just don’t know if somebody just left five minutes ago, if that was five people, ten people …farmers! This was done quickly, it was part of a bigger operation [several large sweeps were reported in Northern Mendocino County in July of 2014] where many things were done that day and I think that this is an example of where things were overlooked that would have been helpful to this court in finding probable cause. I don’t think that this rises to probable cause for those reasons and I’ll submit on that.”
DA Eyster: “I have nothing to add.”
Judge Behnke: “The court finds sufficient cause to believe that Mr. Van Auken committed the offense set forth in Count One, the manufacture of honey oil. The system found below the area in which he was found was actually operational and under pressure, at least one of the potential systems, and Mr. Van Auken was the only one present. There was some indicia for Mr. Van Auken in addition to his presence up above in the residence where there were also what, euphemistically, are called pay-and-owe sheets, a cultivation work calendar of some sort, and there were receipts relating to cultivation supplies. And although what you get in a search warrant is a particular point in time and not the entirety of the operation from start to finish, the evidence is sufficient to believe that Mr. Van Auken was criminally involved in that and that he be held to answer on that count.”
That was count one.
Behnke: “As far as possession of marijuana for sale, the evidence is sufficient to believe that the defendant Mr. Van Auken committed that offense for the purposes of the preliminary hearing and that he be held to answer for the same. And then for the cultivation, again, the evidence is sufficient, and I order he be held to answer.”
* * *
At this point in the case Mr. Briggs went back to The City and his relative, presumably, Carleton Briggs of Santa Rosa, took over the defense. A plea bargain was reached and took place on January 13th by which time, Judge John Behnke, who presided over the prelim, had been transferred to a different department and Judge Ann Moorman took over for the sentencing we had last week.
Judge Moorman sentenced Van Auken to the short term in the local jail, and suspended the sentence, placing Van Auken on three years probation for marijuana cultivation and possession for sale; then she gave him 90 days in jail to discourage the “epidemic” of BHO labs and to send a message that they won’t be tolerated. Mr. Briggs was confused when the judge asked for a surrender date at the jail.
“I thought the sentence was suspended,” he gasped.
The judge explained that the prison sentence was suspended, not the jail term. Mr. Brigg’s client, it seemed, had a better grasp of what was going on in the courtroom than his lawyer.