By Richard Cowan
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--U.S. Justice Louis D. Brandeis
Whatever a person might think about medical marijuana, perhaps the most frightening part of this story should be the fact that Steve Kubby, while he was a political candidate, was put under observation by a multi-state and federal taskforce for six months - based on nothing more than an anonymous tip.
What would the police have done with an anonymous letter that claimed - without any evidence whatsoever - that the Democrat or Republican or even the Green Party candidates were growing medical marijuana, as they would legally have been entitled to do?
As noted in Chapter One, the Kubbys believe that the impetus to the investigation began at the California state capitol when Steve held up a bottle of aspirin and a long bud from his own then legal Prop 215 garden, and asked reporters which was the more dangerous, aspirin, which kills over two thousand Americans a year, or marijuana, which has never been proven to have killed anyone? One of those observing this was the head of Sacramento's narcotics division. This began the process that put Steve and his wife in jail and his life in danger.
The anonymous letter was supposedly sent to law enforcement on July 2, 1998, during the final months of the gubernatorial campaign. The letter seemed to have been designed to provoke the North Tahoe Drug Task Force with three particularly outrageous lies.
First, the letter claimed that authorities could "expect to find 1,500 to 2,000 plants." Of course, when the task force searched the Kubby residence six months later, they found only 265 plants, about half of which were seedlings. (1,500 to 2,000 plants would take a huge amount of room.)
The lie about the number of plants was probably intended to interest the DEA. It was well known in criminal-justice circles that federal prosecutors at that time were generally only interested in pursuing cases involving more than 500 plants or 1,000 plants in some jurisdictions. (They have since prosecuted cases involving only 21 plants.)
The anonymous letter writer emphasized "the astonishing fact that this person is running for California Governor!" Astonishing? Could this letter have been politically motivated? The letter was also brimming with irrelevant tidbits, such as the fact that the Kubbys were renting their home. "Rumors have it ...," the letter insinuated. "Word also has it ...," the letter suggested. This sounds like something from a tabloid gossip column, and should have discredited it completely.
Second, the lie that was most outrageous and likely to provoke the police was the claim that "The other word going around is that he believes it is helpful to give pot to his two year old daughter on a regular basis."
What allegation could be counted on to justify a police raid more than the thought that some zealot would force marijuana on his child? The claim may have been distortion of the Kubbys' well-known practice of using hempseed oil as part of their diet. Hempseed oil is nutritious, but not psychoactive.
Finally, the letter claimed that the Kubby gubernatorial campaign was being financed by selling marijuana, which would seem to be an improvement over what most politicians do to run for office.
This would be the easiest allegation to investigate, but there is no indication that in six months the task force ever sought to confirm the allegation that Kubby was selling marijuana to support either himself or his political campaign. They never sought to buy marijuana from the Kubbys. They never stopped anyone leaving the Kubby home and searched for marijuana, which is a common practice. (The police will justify the stop by claiming that the car made an illegal lane change, then justify the search by claiming that they smelled marijuana.) The police never observed any trafficking activity whatsoever.
In fact, even if one can accept the idea of such an investigation based on an anonymous and obviously gossipy letter, the way that the investigation was conducted was truly outrageous.
Voyeurism and the "Jamaican drug lord." How the police lied to get a warrant, and the prosecutor ignored the law to get an arrest.
The absence of any visible lawbreaking meant that the police had to use more "creative methods."
According to court documents filed by the multi-agency North Tahoe Task Force, the investigation included interviews of Kubby associates, surveillance of the couple's home, checking their household trash and an analysis of their utility bills. (If someone's garbage is put out on the street, the courts have ruled there is no "expectation of privacy", so no warrant is required to search it.)
However, the Kubbys were clearly not trying to hide anything. Also in the household trash investigators found stems, seeds, leafy marijuana residue, partially smoked marijuana cigarettes and packaging for such cultivation supplies as powerful sodium light bulbs, plant vitamins and diagrams of lighting systems.
But they also found flyers addressed to law-enforcement personnel, advising them of Steve Kubby's use of medicinal marijuana, maintenance of a garden, possession of no more than 3.5 pounds of pot and his cancer condition. The Kubbys followed the Oakland Guidelines, adopted by that city based on the amount of marijuana that the Federal government itself sends to seven patients every month under a little-known program. (See Appendix B)
Under these guidelines, which have since been amended somewhat, each patient may have 30 outdoor marijuana plants, 48 indoor plants or 1.5 pounds of bulk marijuana. The Kubbys, each being a patient, could thus have twice that amount. (Seedlings did not count as grown plants.)
It should have been obvious from those flyers that the Kubbys had been tipped off about the police surveillance. The police should have known that the Kubbys were aware that they were being watched, but they just assumed that the Kubbys would continue with a criminal enterprise!
After they were arrested, Michele was particularly upset to find out that the police had even been hiding in the wooded area around their home and peeping through their bedroom windows. Inasmuch as it could be immediately determined that the Kubbys were not growing marijuana in their bedroom, this action was as inexcusable as it was disgusting. It is one thing to know that the police are searching your trash, it is quite something else to find out that Big Brother is a voyeur.
It is also important to remember that under Prop 215 the Kubbys were entitled to have marijuana, so merely seeing a small quantity of it was not probable cause for a search warrant. Nonetheless, the police persisted in their window-peeping, and at one point they did see someone trimming the top of a plant in the kitchen. It was a well-known cannabis photo-journalist named Pete Brady, who was "manicuring" the plant to take its picture.
In submitting a Statement of Probable Cause to obtain a search warrant, the task force cited the DEA as the source of a criminal history for Brady, whom they had been seen during surveillance. The Statement identified Brady as the subject of a DEA investigation in Florida, and claimed: "Brady gave information and/or was involved with the smuggling of large quantities of Marijuana from and/or to Jamaica." (Brady is not Jamaican.)
Subsequently, a letter from the DEA to Brady proved that there never any such DEA report on Brady. The only conclusion one can draw is that the police lied and perpetuated a fraud upon the Court in Placer County in order to get a warrant when their own investigation had failed to provide any real evidence of a crime.
Unfortunately for Brady, it would not stop there. Although they knew he was a journalist, the police attempted to extort testimony from him. On January 21, two days after the Kubbys were arrested, police entered Brady's Butte County home, where they found a small amount of marijuana and a few tiny cacti, that they alleged contain peyote. Ignoring Brady's own medical marijuana protection, (he has chronic pain from a serious back injury) they arrested him and charged him with a felony for the cacti, and with possession of marijuana.
According to police documents and statements, they ran a license plate check on Brady's vehicle because it was parked in Kubby's driveway. Local police in Butte County were already targeting Brady because of articles he'd written critical of their handling of medical marijuana cases. Even though there was no physical evidence to support their assumption, police claimed Brady was part of an alleged Kubby marijuana conspiracy.
During a three-hour interrogation, police revealed that they were aware of Brady's marijuana journalism and didn't approve of it. In 1998, law enforcement officials threatened Brady after he wrote in High Times about homophobic local police harassing a gay medical marijuana user. Thus, the case involved First Amendment issues, along with those raised by Prop. 215.
This is a part of a pattern. The probation report on Orange County medical marijuana activist Marvin Chavez, described in Chapter Two, explicitly stated that "Mr. Chavez says he would continue to travel around the state and 'educate' people about medical marijuana." This was used by the judge to justify a long prison sentence for Chavez.
Politicized law enforcement must never be allowed to silence its critics, but using the law to persecute medical marijuana users and activists who have personal experience to back-up their support for medical marijuana is especially intolerable. When these people also happen to be professional journalists doing their jobs, this becomes political prosecution of the sort that is dangerous to everyone.
The head of the task force that arrested the Kubbys (and caused Brady to be arrested) called Brady, trying to get him to provide evidence that would incriminate himself or the Kubbys.
"I am a journalist doing my job," Brady said. "I did not sell, exchange, buy or transfer marijuana or any other controlled substance. I have been targeted because of who I write for and what I write about. This is a First Amendment case, a medical marijuana case, and a states' rights case. I am saddened that the government has chosen to inflict this kind of pain on me."
In May, all charges against Brady were dropped when it became clear that he could not be coerced into lying about the Kubbys. The collapse of the case against Brady is further evidence that Placer County officials knew they had no evidence of a crime, but that did not stop them from raiding the Kubby home on January 19th.
At least no one got shot...
The Kubby raid involved the use of twenty heavily armed officers. Although the police video carefully avoided showing any weapons, they had laser guided assault rifles and a battering ram. This is not unusual. For example, in August of 2001, ten officers, including one with the letters DEA on his jacket, raided Mike Hobbs's home in San Bernadino county and seized all his medical marijuana, 1/8 oz. of dried marijuana, 9 outdoor plants, and 24 indoor plants.
Hobbs called the Riverside DEA office and was told the agent was assigned to the San Bernadino sheriff's task force as a member of the medical marijuana eradication team. Hobbs protested that he was a medical marijuana patient; officers told him they were following federal law, which was a "higher" law.
Hobbs is a quadriplegic.
In any case, by comparison with the raid on Donald Scott's home, and many others, the police were relatively well-behaved when they raided the Kubbys.
Steve Kubby later told the Orange County Weekly, "My wife and I had been shoveling snow from the driveway, and we went to play with our daughter, when a van went racing by. The next thing I knew, my wife was surrounded by agents. These big fat guys came running upstairs, shouting, 'You're in trouble now.'"
In fact, the police found that the Kubbys had all of the required paperwork to comply with Prop 215, and only a fraction of the number of plants alleged in the anonymous letter, just as they had been told by the flyers in the trash. Under the circumstances, it appeared that they might have followed the logical and legal course of retreating and leaving the Kubbys in peace.
Steve said, "They wandered around scratching their heads until the district attorney came."
Deputy district attorney Chris Cattran personally ordered them arrested anyway. After that it was "business as usual."
Cattran said he was not impressed by the Kubbys' reliance on Proposition 215. "My review of 215 is that they had more marijuana than necessitated by a medical condition." Of course, Prop 215 has no plant limits and certainly says nothing about the needs of individual patients. Moreover, the police destroyed all of the plants, not even leaving whatever minimal number that their own interpretation of Prop 215 would allow. This is further evidence that the police were acting in bad faith.
They also seized a variety of the Kubbys' personal property. One of the most bizarre and revealing aspects of this improper seizure was the fact that the Kubbys' personal property was not held in Placer County, California, but moved across the state line to Nevada, where it remains to this day, even though no violation of Nevada laws has ever been alleged.
On April 10th, their daughter, Brooke, finally got her passport and social security card returned from the Placer County D.A., but they kept a laser printer, scanner, digital camera, hemp clothes, photo of Steve and college roommate, Cheech Marin, a letter from Dennis Peron thanking Steve for saving Prop. 215, autographed books by marijuana activists, Sasha Shulgin, Chris Conrad, Ed Rosenthal, Dennis Peron, Brownie Mary, Jack Herer, Timothy Leary, and Dr. Andrew Weil. Also stolen were such personal items as their house keys, passports, drivers licenses, social security cards, medical records, and cash from the Kubby's wallet and purse.
Steve commented, "Our raid, our bankruptcy and the refusal of the prosecutors or judges to return any of our most basic tools and possessions shows how Drug War laws are increasingly used against ordinary citizens. Law authorizing such unconstitutional searches and seizures were intended originally to be used only against 'drug kingpins.' Today these draconian laws are used as standard procedure to destroy the lives of anyone caught with marijuana, even sick and dying people, all to uphold a corrupt and failed federal drug policy."
"Talk about hate crimes, after they were done robbing us of everything of value that we own, they threw us in jail and tried to extort $200,000 bail. Hell, we can't even make an insurance claim to recover anything that's been stolen. If someone is robbed by a criminal they can at least recoup some of their losses from insurance. How do you file an insurance claim when it's the police who rob you?"
Indeed, what can you do when it's the police who are trying to kill you?
Kubby described the experience: "After we were booked, we were forced to march through a blizzard to get to a transport truck. We were freezing and miserable. They took us to Auburn, and that's when it really got bad. I spent the night in an unheated holding tank next to a pool of vomit. For the first time in years, I suffered from horrific blood pressure. It was three hours until they gave my wife a blanket. When they started to process us, I felt so nauseated I couldn't see what I was signing. They told me to continue or they would put me in some kind of painful hold. It was a struggle; I spent the night vomiting and shivering...
Without medical marijuana to protect me from the deadly effects of my tumors, I began to experience severe vomiting by the end of the day. By the end of my three days in jail, I was blind in my left eye and suffering excruciating painful bouts of high blood pressure. My wife told everyone that my life was at risk, but she was told only, 'If he dies, we'll let you know.'
During the entire time I was incarcerated, my tormenters mocked me as a medical marijuana patient, going out of their way to punish me. For example, although I was in my cell vomiting into the toilet, I was forced to attend breakfast where my repeated bouts of vomiting could be witnessed by the rest of the inmates who were trying to eat their meal."
Sky Kubby, Steve's adult son by a previous marriage, sent out an urgent appeal:
"I received a phone call from my Dad... (He) has had 3 hypertension episodes with his high blood pressure and was not allowed to see a doctor... I spoke with him again at 10:00PM, and Michele finally had gotten her blanket they asked for hours ago. They were thrown into a cold cell and again he stressed they are being treated like animals. He said, 'I may have a stroke if I don't get my medicine tonight.'
He was too sick to complete answering the intake questions, so they dragged him out to a concrete cell with nothing in it. He feels he is being punished for being too sick to answer questions."
One might think that the Kubbys would only have been charged with cultivation, but the Placer County prosecutors indulged in what is called "stacking" - bringing multiple charges to cover the same offense. (The Kubbys originally faced a total of 19 charges.)
The Kubbys were charged not only with unauthorized cultivation, and harvesting and processing of marijuana, but also possession with intent to sell and conspiracy, even though they had failed to find any evidence of sales. Presumably they were conspiring with themselves, although the actual charges said, "conspiring with persons unknown." (Personally, I prefer to know the persons with whom I am conspiring.)
The police and the prosecutors were not above smearing the Kubbys, and trying to prejudice public opinion.
On February 11, an article in The Tahoe World by Patrick McCartney quoted Placer County Undersheriff Steve D'Arcy as saying, "There have been other cases before where marijuana growers were selling it and used Proposition 215 as a defense."
McCartney also quoted Assistant DA Cattran as saying, "And there is some evidence that they furnished it to another individuals observed during the surveillance."
In fact, Cattran knew there was never any evidence of any sales. On February 21, The Washington Times reported that Cattran "cited no evidence of sales or providing pot to anyone else other than a single incident agents observed through a kitchen window."
" 'They saw a third person clipping buds from a plant through a window,' Mr. Cattran reports.
'We do not know whether that individual, who we have identified as Peter Brady, carried any marijuana when he left.' "(emphasis added)
(The police also announced that they had found hypodermic syringes with needles during the raid, implying that the Kubbys were IV drug users. As should have been immediately obvious, these needles were used to reload the inkjet printer. Inkjet addiction is such a great tragedy!)
But it got even weirder. Steve was also charged with possessing mescaline and psilocin, even though these drugs were never found at his residence, but were subsequently extracted from a mushroom stem and some cactus buttons by an expert for the prosecution. The mushroom and cactus buttons were supposedly found in a small container in a drawer in a guest bedroom.
What A Difference A Day Makes...
Having filed so many charges against the Kubbys, the Placer county DA's office then decided that such arch-criminals had to be held on $100,000 bail - each!
Had the Kubbys been arrested on a Thursday or Friday and held over the weekend, rather than a Tuesday, Steve might not have survived long enough for a bail hearing, but fortunately on January 21, the Kubbys were released on their own recognizance - no bail required. Even if one believes that any of the charges were justified, the Kubbys should not have been held at all. Certainly, Steve should have been moved to a medical facility. I have wondered what the Placer County officials would have done had Steve died or suffered some manifestly irreversible injury from his being deprived of cannabis. In fact both of the Kubbys suffered health consequences from the arrest. Michelle contracted pneumonia, and Steve lost 15 pounds in less than a week and developed an eye problem.
Reaffirming what he had said just before the arrests, Attorney General Bill Lockyer's press representative, Hilary McLean, told the Orange County Register that "the attorney general's policy is usually not to intervene in local decisions on prosecution and she knew of no plans to intervene in Mr. Kubby's case."
McLean later told the AP, "Mr. Lockyer voted for Prop. 215 and supported it, but he did not go out and campaign for the measure." This is a novel legal doctrine. Chief law enforcement officers only have to uphold laws that they personally campaigned for! (Actually, as we shall see, Lockyer was to intervene later, but not in the way that any of the Kubbys' friends had hoped or expected.)
Let us review what Lockyer ignored.
1. A political candidate was placed under investigation by a multi-state and federal task force for six months based only on a gossipy letter with no hard facts.While the chief law enforcement officer of the State of California was not interested in these facts, fortunately many other people were.