In their warrant for a raid, Agent Jason Westgate noted that he was tipped off to the fact that there were more than 1000 marijuana plants on the Big Red Farms site located near Winters. Still, Brandon Olivera, the commander for TRIDENT who conducted the September 2016 raids, told the LA Times, “We didn’t know when we went in that it was a fraudulent collective… We figured that out afterward.”
He told the Times reporter, “We called every person they were growing for… like 300 or 400 people, and almost every person said, ‘We have no idea what the hell Big Red’s collective is.’ Less than five even knew who the hell they were.”
Leaving aside whether that test will stand up to legal scrutiny, there is a more fundamental problem.
Medical cannabis can be grown by nonprofit collectives, where the patient members sign up. However, these registry lists are governed by HIPAA – which has strict guidelines for the release of patient information, including to law enforcement.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations established national privacy standards for health care information. According to guidelines, “HIPAA prohibits the release of information without authorization from the patient except in the specific situations identified in the regulations. This document is based on the HIPAA medical privacy regulations and provides overall guidance for the release of patient information to law enforcement and pursuant to an administrative subpoena.”
According to HIPAA, a medical provider may release patient information in response to a warrant or subpoena, but “only that information specifically described in the subpoena, warrant, or summons.”
In this case, Commander Olivera acknowledges that they did not know what they were looking for and the warrant makes no mention of a patient registry.
Attorney Mark Reichel, who represents Ted Hicks and Ryan Mears, told the Vanguard that “unless the warrant specifically says officers may do it–officers cannot violate HIPAA.” However, in many cases, the person ends up volunteering the information.
“Our guys did not,” he said. “They took the scrips in the search. They violated HIPAA by calling the people.”
The defense in this case would have to file a motion to suppress evidence which, if granted by the court, would invalidate a huge amount of the case against the men.
But there might be a bigger problem for the prosecution here – the changing state law as of January 1, 2016, might mean that the men are being prosecuted under laws that are superseded by new legislation.
In the charging document, the men are charged with a felony conspiracy for planning “to commit sales of marijuana,” but the underlying charge is a misdemeanor illegal cultivation of marijuana – unlawfully cultivating more than six living marijuana plants. Attached to what they believe is a phony registry, that means that the men have exceeded limits under medical marijuana law.
However, local growers told the Vanguard that the DA is charging this under the Compassionate Use Act (CUA) and Attorney General Guidelines rather than MCRSA (Medical Cannabis Regulation and Safety Act) signed into law on October 11, 2015, when Governor Brown signed three bills, effective on January 1.
The law takes full effect in January 2018 and those operating under previous medical marijuana laws may continue to operate – without a state-issued license – until one year from the date the state begins accepting applications, under a “sunset provision” in the MCRSA.
However, in the interim, local governments may adopt new ordinances or permits to license local business, as Yolo County has already done.
Ted Hicks and Ryan Mears formed their collective in 2015 and obtained all of the licensing and permits required by Yolo County and the state. As the Future Cannabis Project reports, “Signed by Lieutenant Lance Faille, the business license states that Big Red’s Collective Farm is a Non-Profit Organization and indicates that the ‘business must comply with Yolo County’s Ordinance on Outdoor Medical Marijuana Cultivation (Title 5, Chapter 20 of the Yolo County Code).’”
In fact, there is evidence that TRIDENT knew this at the time of the raid. The individual had cleared everything with the county in terms of licensing and had a valid outdoor grow permit from Yolo County, issued before the grow began.
The officers acknowledged the valid permit from Yolo County prior to the raid, which allowed unlimited plants as long as it was within the approved canopy, but according to Mark Reichel, the response from TRIDENT was that “they did not care.”
Granted, the law is complex and prior Prop. 215 and valid California Attorney General Guidelines now overlap with new MRCSA guidelines, but the growers in this case appear to have followed county regulations and were still raided, with their crops destroyed.
AB 266 establishes dual licensing structure, requiring a state license AND a local license or permit. It also contains a provision that those who were operating prior to January 1, 2016, “will receive priority consideration from the State.” Also notable, “Those who obtain a State issued license will be able to operate ‘for-profit’ businesses. Cultivation permits will be up to one acre in size.”
These are critical provisions, because now these collectives are allowed to operate “for profit” and it does away with the notion of six plants per patient.
In California, operation of nonprofit entities, such as a Nonprofit Mutual Benefit Corporation, are governed by California Nonprofit Corporation Law (Cal. Corp. Code sections 5000-10841). Directors of mutual benefit corporations may lawfully receive compensation, and revenue beyond that necessary for costs and compensation may be reinvested in the corporation rather than taken as profit. (Cal. Corp. Code sections 7110-8910).
Those in Yolo County who wish to comply with current law must obtain a permit for cultivation from the county, and operate under the sunset provisions of MCRSA – that is, comply with previously existing law such as the CUA and MMPA (Medical Marijuana Program Act).
Key to this case is that those granted “relevant local permits” are granted protection from prosecution. Under AB 266, “Under existing law, certain persons with identification cards, who associate within the state in order collectively or cooperatively to cultivate marijuana for medical purposes, are not solely on the basis of that fact subject to specified state sanctions.”
Moreover, “This bill would repeal these provisions upon the issuance of licenses by licensing authorities pursuant to the Medical Marijuana Regulation and Safety Act, as specified, and would instead provide that actions of licensees with the relevant local permits, in accordance with the act and applicable local ordinances, are not offenses subject to arrest, prosecution, or other sanction under state law.”
Finally, it is worth noting that the state does not mandate that the county allow medical cannabis, but it does mandate that if a county allows it then the state regulations are to be used as the minimum for any county regulation.
The minimums are that cultivators are allowed to grow for profit, they are not bound to a patient base if they are issued a permit from their local jurisdiction, and, as long as they are following the county guidelines for the ordinance, MRCSA or Prop 215, as long as they maintain those standards, the growers should be legal.
Granted, this is a complex set of state laws, but the county has signed off on this, including the Sheriff’s Office – and neither TRIDENT nor the Yolo County DA seem to understand the current law.
—David M. Greenwald reporting