Global Ganja Report

Global Ganja Report interviewed veteran criminal and civil rights attorney Tony Serra about Proposition 19 by telephone a few days ago. Currently Serra works out of the Pier 5 law firm in San Francisco and is defending accused members of the the Animal and Environmental Liberation Fronts against terrorism charges. He spends most days in court defending drug dealers, murderers and activists and holds the record for the longest closing argument in California history.

GGR: What about marijuana cases going on now?

TS: Our office has marijuana coming out of its ears. There is so much now. It deeply saddens me that the Obama administration, from my perspective—and I am in the trenches—has done nothing. When he was running, Obama said he would be amenable to medical marijuana, or words to that effect. After he was elected, the Attorney General issued a recommendation or policy statement that said if there was medical marijuana, and it’s being dispensed legally, he wouldn't touch it. The opposite is true. In California the feds are out of control. They are charging some of these dispensaries that are state-legal with what they call "continued criminal enterprise," a 20-year minimum mandatory. They will take ten years off if you don't file a motion, they will compromise. The guy at the Modesto dispensary got 24 years. At the Bakersfield dispensary, they are going to get 20-plus unless they are able to negotiate something. So it's been very, very bad in regards to the federal marijuana world.

And right beside that, the dinosaurs—I'm talking about the DEA and the local narcs—they see handwriting on the wall that marijauna is going to be decriminalized and Schedule One is going to be broken and they are just fucking breaking in and busting everyone in sight. They go into these collectives and seize all the patients that are participating with recommendations. They know they are god dammed state-legal. Sometimes the DA charges, saying it's too much, sometimes they don't. Only one out of 100 go to jury trials. They are usually won on motions, discharges come out of motions.

GGR: Seems like be a lot of mistakes would be made with a rogue agency running in and busting people. Are you finding that the DEA and others are committing many procedural errors in the course of these busts?

TS: You'll find that a lot of affidavits for search warrants are stretched. Let me give you one I was just reading this morning. It is a state case, although there was a DEA agent present. It was not big enough for a federal case. The way they got their probable cause is they have helicopters in northern California. The helicopters swoop down—it is literally like an Afghanistan troop invasion, they go right down and they hover 30 feet above the ground. They hover there so they can get a look into the barn, or greenhouse, or other areas that are not open to view, and then they say that they could see a little hole in the tent. Half of it is lies. The big issue is that they are going too low. There is a 500-foot flight ceiling. People are saying plants are blowing all around, there's a big wind storm, the noise is unsettling, it is frightening. Then they fly away and say that there was 80 pounds in an outhouse or some bullshit like that.

So I find that curtilages are invaded. Curtilage is the place where Fourth Amendment law applies. There is an expectation of privacy so there are open-field doctorines. That means where there are no houses or barns or sheds, there is no expectation of privacy. So they can trespass at leisure. The invasion of curtilage is the thing that is illegal and is the thing that can get the search warrant to fail. So what do they do? They fucking pretend that they can smell it and they pretend that they can hear the humming of electronic fans, ventilation or whatever, and they admit that they went on to the property but they pretend that they got a vantage point from the open fields, which is a big lie. People I defend say, "If you are within the curtilage, that is the only time the only time you can smell it, we've got the generators buried there is no sound unless you are up close."

So they are doing trespasses in order to get the probable cause. When there are guns up in the mountains there is actually a presence of bear, wildcats and the occasional mountain lion, so they are there to protect people and not to grow the crop. But if there is a gun present it makes the charges more serious.

On the road they will knock your car off. The local sheriff and the CHP are profiling cars coming from the north. They think anything that looks vilified coming out of the north is carrying pot. They make up some violation, "Oh, you're wheel was over the line." The guy will say, "No, I saw the fucking car, I didn't go over the line." Or, "You were one mile per hour speeding." "No, I wasn’t, I was five miles under." They stop you and right away they act on it, which is bullshit half the time anyway.

GGR: What if you have a locked tool box or safe in your car, don’t they need a search warrant for that?

TS: Yes, but if they say they can smell it… And they lie! Or, they detain you, so it is really an arrest, and they bring in the dogs. If the dogs alert then they have the probable cause. If there is an odor, they have the probable cause. But I am saying they lie on the odor. If there is nothing there they let you go, nobody squeaks. If there is something there, they go, "Oh yeah, I smelled it." In a locked box, vacuum-sealed, in the trunk there would be no odor whatsoever. But they lie and say, "I smell an odor."

I had something like this in San Francisco. They stopped the car, you can't smell shit. They were profiling, so they get in there are and they search. They find something in there that is all sealed up, there is no odor. They slash it! And they said they smelled an odor, they looked, they found it, there was a cut in it already and that's where they are going with it. My guy says, "Bullshit! They cut it themselves. It wasn't cut before they came." You get a lot of those kinds of situations that are not necessarily orchestrated federally. This is more just some local sheriff, local narc, anti-marijuana, old-fashioned, old-school. And they are breaking the law to get the probable cause to make the bust.

GGR: What if 19 passes? What are those guys going to do?

TS: Here is the scariest thing. The Attorney General just announced—it's in written form—that if 19 passes, up front, that they will make a core priority investigating and arresting all dispensaries that sell for recreational use. Remember, under 19, you can buy an ounce a day from the various dispensaries/collectives. Richard Lee funded the thing because he has a club already, a dispensary, very large, and got he's got a connection in L.A. where he could tap six million recreational users. They are not all going to grow on their five-by-five space allotted under 19. They are going to buy and he would capitalize on it. There was a monetary motive, and the feds are saying, "Oh yeah? If you don't sell only for medical purposes, if you sell anything recreational we are going to prioritize investigating and busting you," which takes away the incentive from the people who orchestrated putting it on the ballot. They wanted to be able to sell an ounce a day to recreational users—that's what it says.

The good thing for the rest of the citizens is that you can grow recreational dope on a five-by-five, not only medical growers would flourish but also recreational growers. That's the good thing about it.

I don't know now, it's rather sad. If it passes and then the feds come down on all the dispensaries that want to sell to recreational users it's going to soften it. California already has passed a law, that was signed a couple months ago and it says that if you possess for any reason up to an ounce it's not a crime any longer. It's a mere infraction. You can possess it, you can transport up to one ounce for personal and recreational use. It is not a crime. It is an infraction, like a ticket, but it is not a traffic ticket. It would be more like a parking ticket. We kind of have that already. It is just that you are not supposed to grow for recreational purposes and obviously, the dispensaries can not dispense to members for recreational.

GGR: Let's say, hypothetically, you don't have a medical card, you have a pound in your car. You get in an accident, it gets found in Orange County after Prop 19 passes.

TS: Here's your defense (in court): "I'm a recreational user, that pot is for my personal usage and I grew it." You don't even say you bought it, you grew it. "Because I am allowed a five-by-five space and as a recreational user I am allowed an ounce a fucking day under 19! And 19 allows me to grow my own and I did." So there is a complete defense if you grew your own and are transporting it to your home or to a safe place after harvesting, drying, etc…

GGR: What's your prognosis on 19? Do you think it will pass?

TS: Here is what has happened. Every fucking liberal (whatever that means) candidate is against it. Barbara Boxer, Mayor Newsom running for lieutenant governor, the DA Kamala Harris running for Attorney General, Feinstein, all the Republicans. So the name brands on the police departments, the heavy politicians, they are all against it. I haven't yet seen whether the local newspapers are going to recommend it. At the beginning prospects looked good, now the latest polls show 19 is substantially behind. It looks like it is going to lose.

GGR: So things will just continue as they are, dispensaries, county-by-county enforcement?

TS: You will be OK in California if you are a mere consumer. If you are growing a little pot and you have a medical recommendation no one is going to touch you. If three or four people get together and form a collective and they are growing a little pot, say, under 100 plants, no one is going to touch you. If you are caught with an ounce, a pound, no one is going touch you. When you are a big dispensary and you are growing 5,000 plants and somehow you fall on the bad side of the sheriff, then they are going to touch you, either the feds or the state. So the little guy, you know, the one who is really in the law and the spirit of medical marijuana, they are not going to touch. Under an ounce isn't even a crime any longer it's just an infraction, as the new bill was passed and signed by the governor a few weeks ago.

People like Dennis Peron don't need 19. 19 is called up-front, "Regulate, Control and Tax." And that suggests that you are inviting IRS, local and federal government people into your bedroom. And they will regulate, control and tax it. And under the guise of that they will set standards and they will set application fees for licenses. They will control it and will drive the small person out of the business. Big tobacco and large corporations will control the industry. Dennis Peron is very vociferous against it. Why give it to government?  We have been fighting government. The government has been putting us in fucking jail! Ultimately, we are going to let them prevail to allow them to regulate, control and tax up front? They are trying to do it anyway, but this just invites IRS and Phillip Morris into the industry and they will monopolize it. So there are activists on the left who are against 19.

GGR: Chris Conrad says that Peron is spouting misinformation, trying to scare people by saying the dispensaries are going to go away if 19 passes.

TS: Unfortunately, in the medical marijuana community, there are wide views. Dennis is on one side, Chris is on another, Richard Lee has his own kind of interest in it. So there is a variety of views. I think it is important that it passes, because the world is looking at it and the other states are all looking at it very closely. Because, broadly interpreted, the image is that recreational use is legalized in California, and it would be. Up to an ounce a day is a lot of fucking pot. You can go into of these establishments and buy up to an ounce a day if you have that much money. It's a lot of fucking pot. So the amount is more than you can really smoke, and that's good. And also, it makes it legal to have a year's supply, so you can have up to 365 ounces per year. That means you can have up to 22 pounds under that law. So, it's all good.

I also respect the view that they call it "Regulate, Control and Tax," so the initiative is being sold to the uninitiated that marijuana is going to benefit the whole state, that we are going to make billions of dollars. I don’t believe that. I think that is hoping, and the effects of it are being overrated. Obviously there will be a large outlaw distribution network beside the legal distribution network, and obviously none of that has to be taxed. So, I can see there are two sides. I think that the best move in the long run is to pass it.

We have a problem that is worse than 19; we've got Meg Whitman. She is just a capitalistic whore who wants to have the governorship as her trophy. She might win, she poured billions and billions into the advertising, and after a while people start believing her bullshit. The worst thing that could happen to us is to have Meg Whitman as a governor. It would be horrible.

Photo by Ivory Serra