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Nosing Around 

In many weed cases, 'probable cause' doesn't go much further than a sense of smell

click to enlarge Jeremiah Benton's House
  • Jeremiah Benton's House

Jeremiah Benton slid from bed and looked out his window when Boss, his albino pit bull, started barking. Outside he saw about a dozen sheriff's deputies in flak jackets, some with assault rifles. One carried a battering ram.

Benton, a 31-year-old Eureka resident, was part of a marijuana collective. About 200 plants grew inside his house and the sheriff's deputies had a warrant to search it.

In only his boxers, Benton went to the door. When one deputy demanded that he open it, he asked if he could first put Boss and Kaya, a brown pit bull, in his backyard. The deputy told him that if he didn't open the door, they would bust it down. When Benton opened it, they rushed in.

"My dick was hanging out for everyone to laugh at me," says Benton. The deputies put him on his stomach, handcuffed him and pointed assault rifles in his face.

Others moved through his house and started cutting Benton's marijuana plants, even though he had seven prescriptions posted in his garden.

"I'm a small-timer," says Benton. "Why were they raiding me?"

That's the question many local growers likely asked themselves last year. Although police say they are more concerned with hard drugs and violent crimes, more than 35 percent of the search warrants we reviewed related to marijuana and most were relatively small grows in the northern part of Humboldt County.

District Attorney Paul Gallegos says that marijuana grows have moved down from the hills and into residential neighborhoods because Proposition 215, the 1996 initiative that legalized marijuana for medicinal use, made it easier for people to grow in their homes. But while marijuana makes up a sizeable percentage of search warrant cases, he says they are a small percent of all cases. "Most marijuana searches are for cultivation that usually happens in a residence, so a warrant is necessary," he said. "The DA's office charges 10,000 cases a year and marijuana isn't a third of them."

To get the search warrant for Benton's home sheriffs deputies needed sufficient probable cause. Sergeant Wayne Hanson and Detective Cheryl Franco found it when they visited his home a week earlier with questions about a case they were working on: The smell of marijuana and sounds of fans and music came from Benton's garage. They knocked on the front door, and Hanson noted hearing dogs barking. He wrote that the windows in Benton's garage were covered from the inside, and there was a security camera above the front door. According to Hanson, the smell, fans, music playing, dogs barking, covered windows and security camera were all consistent with a marijuana grow.

Of the 122 warrants we found in the courthouse that were related to marijuana, smell was listed as a component of probable cause in 22 cases. Former prosecutor and District Former prosecutor and district attorney candidate Allison Jackson says smell alone isn't enough for probable cause, but it can be a starting point. "Warrants are based on the totality of evidence," she says. "It can start with a smell, but there has to be more. It can even start with a noise. If everything else falls together from a smell, then you may have a case."

In a Fortuna case, it was loud music that first tipped off residents of a house on May Street. A neighbor called police and when Fortuna Police Officer Tim Dias arrived, he heard humming in the garage that sounded like grow equipment and smelled marijuana.

Often, a neighbor, acquaintance or a FedEx employee might catch the first whiff and call police. In at least 21 of the search warrants we found related to marijuana, it was an informant who first tipped off police.

^^^^^

Consider what happened in the Sunny Brae neighborhood of Arcata last year. Police searched eight houses, six on Beverly Drive alone, each tipped off by a citizen informant.

We knocked on the doors of the searched houses in Sunny Brae. In most, we talked to renters who had moved in after the search warrant was served, and the marijuana grow cleaned up.

Some neighbors said they were aware of a guy who "snoops around" and reports grow houses. Sunny Brae resident Richard Salzman, who managed the campaign that first put Gallegos into office, said some of his neighbors are involved in a marijuana-themed neighborhood watch group called "Nip it in the Bud." He said he had no problem with marijuana growing, but would prefer outdoor grows because of energy costs and zoning issues.

Sonoma County defense attorney Omar Figueroa says that people can't tell by smell whether a grower is exceeds legal limits. "You can't tell the difference between legal and illegal smell," he said. He said police often use smell for probable cause because it is "unfalsifiable." He said, "It is difficult to prove a cop is lying if he says he smells marijuana."

Like many other growers, Benton thought he was protected under Prop. 215. He insisted he had sold $30,000 worth of marijuana to medical dispensaries in San Francisco. Eureka Police Chief Garr Nielsen says police have difficulty distinguishing between people who grow privately for profit and those growing legally for dispensaries because they still make money off of it. Nielsen says police will shut down a grow if they find evidence, such as cash and scales, that money is being made. A 215 card can protect growers from prosecution for cultivation and possession, but not from being arrested or having their grows dismantled. Eureka Police Investigator Ron Prose says police need to be able to search inside homes because people abuse Prop. 215. "People put 215 cards up and put copies up at different grows," he says.

^^^^^

Legal growers can seek greater protection. When medical marijuana patient Patrick Kelly was arrested in Lakewood in 2005 and convicted of possession of more than the eight ounces of processed marijuana allowed by state-legislated quantity limits, he appealed. Although Prop. 215 allowed patients to have and grow marijuana for medical use, it did not specify the quantity. Instead, the California legislature passed a subsequent amendment to the California Health and Safety Code that established those quantities in order to avoid unnecessary arrest and prosecution of individuals, and provide needed guidance to law officers. That section set guidelines about the amount of marijuana a patient may have -- eight ounces of dried marijuana and six mature or 12 immature plants.

In January, the California Supreme Court struck down the section as unconstitutional, because the California State Constitution dictates that a law enacted by the voters may only be amended by a public vote. Although this ruling effectively eliminated the quantity limits placed on medical marijuana, growers are no less subject to searches of their homes and electronic records if police suspect the quantity of marijuana being grown is excessive to the patient's current medical need, or is being grown for distribution. There's no database of registered 215 participants that law enforcement can reference, although Nielsen and other officers said it would be a helpful tool.

The California Department of Public Health has started a program of voluntary medical marijuana registration called the Medical Marijuana Program. MMP participants are not subject to arrest for possession, transportation, delivery or cultivation of medical marijuana in an amount established under MMP. But Figueroa says that the database does not include names and addresses, so it is not something police can check before determining whether or not to pull a warrant on a smelly house.

Sergeant Steve Watson of Eureka Police Department's Problem Oriented Policing said he has never come across a MMP participant, and said Prop. 215 is problematic. "It's unclear and frustrating to police on the streets," he said. "It used to be much more reasonable before the Kelly decision." Watson said there is no statewide limit standard; the limits change according to jurisdiction.

Despite some community sympathy, not everyone sees marijuana cultivation as harmless. Eureka resident Marilyn Pawlyk said she understands that marijuana use should be allowed for people in extreme pain, which should be verified by a medical doctor. But she would like to see the rest of it eradicated. "It's an excuse for young people to get high," Pawlyk said. Joanne Snyder, who sells beaded jewelry in Old Town, is concerned that marijuana grows take up houses that people could live in. "I don't believe in grow houses in the city," she said. "It's one thing if you grow for medical purposes but I don't actually believe in grow houses." And Sunny Brae resident Jordan Krouse said he too thinks marijuana growers can get out of hand. "This whole neighborhood stunk like pot for awhile," he said.

^^^^^

Regardless, Jackson believes passage of Regulate, Control and Tax Cannabis Act of 2010, which is on the November ballot, will put an end to marijuana searches. "There won't be any searches because it will be legal," she says.

That won't likely help Jeremiah Benton. He had made the mistake of helping out a friend who called after landing himself in jail on homicide charges. Benton gave him $1,400 to help toward his legal defense, and that's what first brought Hanson and Franco to his house. When he told police that he was in Phoenix at the time of the murder they corroborated it with his cell phone records and dropped him from that investigation. But they still booked him into the Humboldt County jail on charges of felony cultivation. He posted the $20,000 bail in part with $800 in cash and the deed to his house and the rest with a bond from Belinda's Bail Bonds.

When he returned to his house he found the place a mess. Pink insulation from inside his walls was strewn everywhere, numbers written like graffiti on the walls and his marijuana garden gone. "Everything I ever had was thrown everywhere," he says. Benton pleaded not guilty to the felonies and now waits while his case winds its way through the system.

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