Medicinal marijuana delivery employees arrested in Santa Clara County insist they’re not criminals

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Ellen Young does not fit the profile of your average drug dealer.

She is not an opportunistic kid, exploiting others’ addictions for cash, or a repeat offender dogged by convictions and jail time. She is not intimidating, nor does she carry a gun.

At age 55, she is instead the kind of warm, motherly figure who seems more likely to bake cookies than peddle drugs. Her San Jose home is decidedly upper-middle class, complete with a life-size wooden sculpture of a swan and late ‘90s books on building great websites.

But on Sept. 30, stereotypical drug dealer or not, she found out what it feels like to be treated as one.

Around 8 p.m., she and her husband Bob lay in bed. They had just finished watching the season four finale of “Dexter,” one of their favorite crime dramas, when they heard an urgent pounding at the door. “Police! Open up!” came the command from outside. “Thank God they waited until we were done watching!” she remembers with a chuckle.

When Young opened the door, police swarmed inside, handcuffed her and her husband and began ransacking the house. For the past year, Young had helped her husband operate a medicinal marijuana delivery service called the South Bay Collective, and this was a drug bust. Officers arrested the couple on suspicion of four felony-level offenses: conspiracy plus selling, possessing and cultivating marijuana. After 22 hours in various jails, Young and her husband paid $30,000 each in bail and were released, with an arraignment scheduled for Dec. 20.

Sitting in their Santa Clara holding cell, the Youngs soon realized they weren’t alone. That same day, Santa Clara police arrested 20 other suspects and seized more than 25 pounds of marijuana in a coordinated sting operation called “Up in Smoke.” According to Santa Clara Chief of Police Stephen D. Lodge, the operation aimed to “identify illegal [marijuana] delivery services that are providing marijuana in violation of the law.”

But it’s not quite that simple. When it comes to marijuana in California, nothing is. Even attorneys admit the state’s medicinal cannabis laws are ambiguous and confusing, so it’s no wonder advocates and law enforcement clash over whether “Up in Smoke” was an unlawful affront to patients’ rights or simply a drug bust. Either way, almost two dozen suspects await trials for felony-level drug charges.

Some, like Young, believed they were following the law. She says she researched the law thoroughly and that she and her husband had operated without any legal incidents at all before their arrest. Even so, the Santa Clara County district attorney charged her with possession of marijuana with the intent to sell, a felony. “I had no idea we were being raided for drug dealing,” Young says. “That’s how innocent I thought I was.”

At what point does a law become so vague and complex that the government should focus on fixing it rather than enforcing it?

*          *          *

Medicinal marijuana has been legal in California for patients with a doctor’s referral since voters passed the Compassionate Use Act in 1996, but it remains illegal on a federal level—medicinal or otherwise. In 2003, state lawmakers passed SB 420 to clarify and expand the Compassionate Use Act, especially to protect “collective, cooperative cultivation projects.” These “collectives,” as they are more commonly known, are essentially groups of medicinal patients. In each group, some members can grow and distribute cannabis to their fellow members, in exchange for reimbursements that cover their costs.

Although collectives began as small groups of friends or acquaintances, more entrepreneurial patients have established collectives of hundreds or even thousands of patients. Some of these larger operations, often called “dispensaries,” opened storefronts or started delivery services like the Youngs’ as a way for members to obtain their cannabis.

When U.S. Deputy Attorney General David W. Ogden announced in October 2009 that federal attorneys would turn a blind eye to medicinal marijuana in California, he unwittingly sparked an explosion of dispensaries in the Bay Area. According to Lodge, the number of medicinal marijuana ads in the Metro, an alternative newspaper in the Silicon Valley, provides a useful metric for measuring the number of dispensaries in the area. Before Ogden’s statement, each issue of the Metro would include perhaps one advertisement for a collective, Lodge says; an October 2010 issue of the Metro, in contrast, included 40 such ads.

Santa Clara County Supervising Deputy District Attorney Frank Carrubba, who leads Santa Clara County’s narcotics prosecution force, said he helped initiate “Up in Smoke” in an effort to prevent the growth of dispensaries from becoming an “epidemic,” as he describes the current situation in Los Angeles, where he says the number of dispensaries approaches 1,000.

In the operation, undercover agents with assumed identities attempted to schedule deliveries from collectives that advertised on Craigslist.com and in the Metro. Services that did not take the bait stayed out of trouble; couriers who did show up were arrested.

But the law behind these arrests is murky. “What you have is a very vague set of guidelines,” said Justis Warhurst, who co-founded StartYourCollective.com as a consulting resource for patients who wish to start collectives.

Strikingly, even District Attorney Carrubba concedes that the law “is not simple, nor is it well written. It is confusing to people who do it every day, and that’s part of the problem.” But that didn’t stop “Up in Smoke.”

*          *          *

Mark, who requested that his real name not be used for fear of losing his job, volunteers at his friend’s collective, often working as a deliveryman until his friend opened a storefront last October.

The same day the Youngs were arrested, Mark took a delivery call in the afternoon. The woman on the line provided the necessary background information and a marijuana referral number, which all checked out. She said she was “between housing,” he recalls, so she was staying at an extended stay hotel.

When he got there, Mark found two people, not one. As he helped the patient who called fill out the paperwork necessary to join the collective, she kept interrupting him. “She stopped signing things, and then she was like, ‘Oh, before I pay for the product, can I see it?’ So I handed it to her.” When he tried to photograph her identification, the final step in the process, she interrupted him again: “Oh, before I forget, let me give you the money for it.”

Before he accepted the money or took the picture, police “just broke down the door, came in, they handcuffed me.” Officers took Mark’s keys from his pocket, searched his car while they questioned him and then arrested him. “It was a pure set-up,” he says. “They impersonated, they lied getting the recommendation cards, I’m sure…. They perverted the law, not us.”

In recounting the experience, Mark emphasizes that the “patient” had legitimate paperwork and that he was attempting to register her as a new member of the collective before the police barged in.

But, according to Carrubba, just signing a registration form isn’t enough. Truly belonging to a collective, he says, requires each member to bear the organization’s costs and benefits, assist in daily operations, have a vote in elections and more. Guidelines issued by California Attorney General Edmund G. Brown Jr. similarly assert that collectives “must follow strict rules on organization, articles, elections, and distribution of earnings.” Anything short of that, Carrubba says, essentially amounts to drug dealing.

Attorney Jim Roberts, who represents about 20 collectives in the Bay Area, disputes this line of reasoning entirely. “I think it’s totally wrong,” he says. To be legal, collectives must be non-profit—specifically, a mutual-benefit nonprofit corporation. The American Automobile Association (AAA) is the same type of organization, but Roberts argues that two are held to different standards.

“I’m not aware that when you join AAA, you have to do anything other than sign up as a member and agree to the rules of membership,” he said. “Why should it be any different with dispensaries?”

Mark’s collective is indeed registered as a mutual benefit non-profit organization, and its operator maintains that the collective does follow all California laws—he even consults with a lawyer regularly just to make sure.

Regardless, Mark will be arraigned this month. In the meantime, he must undergo drug counseling and pass weekly drug tests to stay out of jail—a strange irony for someone who has a valid prescription for medicinal marijuana.

One of the patients he regularly delivered to, Michele, said that she relies on marijuana to help her cope with chronic pain. “Cannabis is the only thing that takes away my pain,” she said. “I had major back surgery—I had four discs replaced working for the city buses…. Cannabis takes care of [the pain] right away, and it lasts a lot longer than the pain pills do for me.” To Michele, Mark is not a criminal but a hero bringing relief.

*          *          *

Tom, who also requested that his real name be omitted to protect his job, obtained a medicinal marijuana referral in summer 2009. Unlike many other patients, who generally cite very specific medical issues as the reason for their prescription, Tom says cannabis helped him regain his sense of self-confidence after unexpectedly losing his six-figure job in Silicon Valley at the peak of the 2008 recession. Marijuana “really helped my mind,” he said, noting that it also helped him sleep and deal with anxiety. “It’s more spiritual for me.”

Neither an addict nor an ideal patient, Tom seems to enjoy marijuana recreationally, in moderation but not strictly for medical purposes. The prescription simply helped him gain a sense of security. “When I got my [medicinal] card,” he said, “I thought I was gonna be free from feeling like a criminal.”

Understandable, perhaps, but not quite the approach that California law sanctions.

To Tom, marijuana has more in common with wine than with dangerous substances—not an entirely unreasonable view, given that a study recently published in a British medical journal lists cannabis as less dangerous than alcohol, tobacco and several other substances. “It’s just a plant that grows in the ground, and it’s been demonized,” Tom said.

After learning a little about the business side of collectives, he decided to run a “test of the market.” He says he wasn’t interested in making a fortune, just trying to make a little extra on the side. He claims that he hadn’t made any money yet, but California law is, in fact, clear on this point—collectives absolutely must be non-profit.

Nevertheless, Tom felt like he was helping patients in need. He asks rhetorically, “You wanna buy your beer from someone on the streets who has guns who can kill you?” One of his patients was a Vietnam veteran who said he was “tired of Craigslist,” and the two began to develop a friendship. Tom recalls driving over an hour to deliver to him, proud to be helping someone.

He also notes that he refused to deliver to anyone without a legitimate medicinal referral. “Otherwise, I may as well stand on a street corner,” he said.

Like Mark, Tom was targeted in “Up in Smoke” and arrested after he delivered to a stranger in a hotel room. He, too, believes he is innocent, but he has already been charged with possession with the intent to sell, in addition to transporting and distributing marijuana. Tom, however, did not obtain a seller’s permit or pay sales taxes, both of which are required by California law. Sort of.

The California Board of Equalization requires collectives, like any other retail business, to obtain a seller’s permit in order to operate, but this same permit requires businesses to “obey all federal and state laws that regulate and control your business” and does not grant the “authority to make unlawful sales.” In other words, collectives must get a seller’s permit to sell medicinal marijuana, but that same permit prohibits them from doing just that because of federal laws.

Further, dispensaries must pay sales taxes, but they don’t really have to pay sales taxes. In U.S. v. Leary (1969), the Supreme Court ruled the 1937 Marijuana Tax Act unconstitutional. Because possession was illegal in every state, filing a federal tax return for marijuana essentially amounted to self-incrimination. In the words of Wayne Johnson, strategist for the No on Proposition 19 campaign that aimed to defeat the legalization of marijuana in California, “You’re admitting to a [federal] crime. You’re saying that ‘I’m a purveyor of a controlled substance, I’m paying a tax on it, and here’s a signed statement of how much I sold.’ That’s an open-and-shut case.”

Taxes may be a minor point in the debate over medicinal marijuana, but the issue illustrates a key point—as long as California law fundamentally conflicts with federal law, ambiguity will be par for the course.

Even so, Tom will go back to court this month to enter his plea.

*          *          *

At a pro-medicinal protest outside the “Up in Smoke” arraignments, the Peninsula Press met a man who called himself John CryingRain. CryingRain wore a black shirt with a pot leaf emblazoned on the back. In the afternoon, he asked the protest leader, “Where’s a good spot to medicate?” as he took his pipe and a small container of weed down the street to light up.

In a sense, Tom and CryingRain have something in common. Tom saw his delivery service as a way to help patients obtain marijuana—sometimes to treat a legitimate medical ailment, and perhaps sometimes to enjoy an illegal substance that may not be all that bad. CryingRain is one of the “patients” who seizes on the legal protection that medicinal laws offer. Together, they represent an attitude that makes the medicinal movement sometimes feel like a façade for recreational drug use, in spite of the true patients by their side. Oft-repeated words like “medicine” and “patient” ring hollow—useful euphemisms rather than technical terms of the trade.

“In my opinion and my experience,” Carrubba said, “much of medicinal marijuana is a perversion of a law that was designed to help people that truly need medicine by people who want to get marijuana without getting prosecuted.”

Harsh as it is, this is the party line for law enforcement in Santa Clara County. Lodge expressed a similar sentiment when referring to the suspects arrested in “Up in Smoke.”

“It’s got nothing to do with medicinal marijuana, it’s got nothing to do with helping people out—it’s just doing a drug deal.”

With a cast of characters that includes people like Michele, Mark, CryingRain, Tom and Young, and laws that even a district attorney finds poorly written, it’s easy to see how medicinal marijuana has become so polarized since it burst onto the Santa Clara scene.

The result? Lives thrown into chaos. Tom and Ellen Young will face felony charges. Mark can only sweat until his arraignment date as he struggles to keep his employer in the dark about his arrest. Since September, the raids have continued, and advocates stalwartly defend the legality of these busted collectives while expressing frustration and confusion that they no longer understand what the county wants from them.

While everyone continues to argue about what the laws mean, more suspects await trial to see if their lives, too, will go up in smoke.

Dean Schaffer

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