Title: Hidden Cameras Catch Cops in Illegal Smash and Grab Raid on Legal Pot Shop Source:
Free Thought Project/Orange County Register URL Source:http://thefreethoughtproject.com/hi ... -raid-pot/#ymGKa6d0rSSq8Tjs.99 Published:Sep 15, 2016 Author:Justin Gardner Post Date:2016-09-16 19:38:32 by Deckard Keywords:None Views:4331 Comments:18
Costa Mesa, CA – The Costa Mesa Police Department (CMPD) is trying to pull a fast one after a lawsuit was filed against it for the illegal raid of a medical cannabis dispensary. Knowing they have little chance in state court to defend their actions, which were caught on hidden cameras, the CMPD is attempting to move the case to federal court because cannabis is prohibited under federal law.
In January, cops busted into the Costa Mesa Collective in militaristic fashion, pointing guns at customers and telling them to get on the ground. They immediately began removing surveillance equipment, but didn’t know about the four hidden cameras which caught them damaging store property, interrogating customers and seizing cannabis, money, confidential patient records and other property.
These seizures were done with no legal justification, as police Chief Robert Sharpnack said they had obtained an inspection warrant, “which is used to enter a premises to investigate whether it is complying with building, fire, zoning and civil codes.”
“If a business refuses access, a city can obtain an inspection warrant and seek a judge’s permission to make forcible entry, but investigators can’t seize evidence for a criminal case, said Jen McGrath, another attorney representing Costa Mesa Collective.”
But there’s more. The OC Register has not been able to find any type of warrant for the operation, and Chief Sharpnack has refused to provide a copy of the supposed warrant used to carry out the raid.
Even if such an inspection warrant exists, it does not allow for the seizure of cash, assets and medical records that was recorded by the hidden cameras.
Cops involved in the raid, believing they had removed all video recorders in the store, proceeded to violate the law and the constitutional rights of people inside the store.
Video shows one officer interrogating a female in a separate room, attempting to get her to admit to a crime as she repeatedly says she wants an attorney.
“Were you being a lookout outside? Were you a lookout? Were you asked to look out for people?” said the unidentified officer. As she hesitates, he says, “…you don’t have to tell me if you don’t want to…”
The subject then says, “Oh, ok, that means you can just speak to my lawyer then.”
But the cop continues prodding her, saying, “If you’re the lookout, then that means you’re an employee here. You’re helping these people out. Unless you care to tell me what your involvement is.”
Five people were arrested on suspicion of possession with intent to distribute marijuana, and they spent four days in the county jail before being released with no charges.
Two hours of hidden camera footage was provided to the OC Register by the attorney representing Costa Mesa Collective, Mathew Pappas. Footage shows a cop breaking the ceiling open in the room and other cops looting the place for cash, including the tip jar.
The same cop who interrogated the female subject is heard telling another subject, “The reason why we’re here is because we’re conducting an inspection.”
But the hidden cameras clearly show this is not just an inspection.
In the main room of the dispensary, other cops are taunting a customer laying on the floor.
“Don’t be dumb, dude. Don’t tell me, dah, dah.”
Patient: “You asked if I ever got arrested.”
Officer: “I’m just asking a simple question. You ever been arrested before for anything? It’s a yes or no question. It’s not hard. I’m not interrogating you. Just asking if you had a…”
Patient: “Then let me talk to my lawyer.”
Officer: “That’s a pretty libertarian thing to say.”
Officer 2: “Who’s your lawyer? Call him right now. Phone is right here.” (Tries to hand a phone to the customer) “You don’t have a lawyer dude. I love when people say that. Who’s your lawyer? We’ll call him up.”
They can later be heard making jokes about the fact that cannabis is used as medicine, with one cop pretending to be the salesperson and another cop the customer.
“Looks like you’re gonna be busy counting money,” one cop says as he hands the loot to another cop.
It’s no wonder that attorneys for the CMPD filed a motion to move the case from state to federal court, which is an attempt to dodge the fact that their actions – unknowingly recorded by hidden cameras – violated the law and constitutional rights.
“Costa Mesa’s effort to move the case to federal court is meant to prevent any recovery for their illegal actions because marijuana is prohibited under federal law,” Pappas said. “However, the lawsuit filed is based on state law in an area that should be decided by state courts.”
…The lawsuit filed last month in Orange County Superior Court seeks unspecified damages and the return of marijuana, money, confidential patient records and other property seized Jan. 27 at the now-closed Costa Mesa Collective on Harbor Boulevard.”
The footage provides a rare glimpse into the modus operandi of law enforcement who feel they can get away with anything in their vendetta against peaceful people providing medical products. The Costa Mesa Collective was clearly a target for these cops, but the raid may turn out to be one of their biggest mistakes.
“If a business refuses access, a city can obtain an inspection warrant and seek a judge’s permission to make forcible entry, but investigators can’t seize evidence for a criminal case, said Jen McGrath, another attorney representing Costa Mesa Collective.”
The Orange County Register says they claim entry was made with a warrant.
Sharpnack said the department obtained an inspection warrant, which is used to enter a premises to investigate whether it is complying with building, fire, zoning and civil codes.
Warrants are issued by a judge and a list of items seized has to be filed with the court, said Jen McGrath, another attorney representing Costa Mesa Collective.
If a business refuses access, a city may have grounds to obtain an inspection warrant and seek a judge’s permission to make forcible entry, but investigators can’t seize evidence for a criminal case, McGrath said. The lawsuit alleges police may have “omitted, misrepresented or withheld material facts” to obtain an inspection warrant.
Entry with an inspection warrant would be lawful. Finding gobs of evidence of unlawful activity in plain sight while inspecting for compliance with building, fire, zoning and civil codes would enable further action. A finding that it was a medical dispensary within the limits of Costa Mesa would make the whole operation illegal. The first purported defense, since abandoned, seems to have been a claim that it was really a church. The explanation that the dispensary had failed to convert to a church, appears to admit that it was an illegal dispensary. The Free Thought Project didn't find it convenient to report that dispensaries are not allowed within the limits of Costa Mesa. They are illegal.
It's another yellow half story. I would like the other half.
The OC Register has not been able to find any type of warrant for the operation, and Chief Sharpnack has refused to provide a copy of the supposed warrant used to carry out the raid.
Costa Mesa Raid That Put Dispensary Workers In Jail May Have Been Illegal
1 month ago By: Zach Smith
An attorney claims Costa Mesa police did not have a warrant when they raided a dispensary and put five employees in jail.
On January 27, officers stormed into medical dispensary Costa Mesa Collective with guns drawn and forced employees and customers to get on the ground.
Security footage shows the officers shouting upon entry:
“Search warrant, police department. Hands up!”
After removing a video recorder, the officers searched the dispensary, seized items from safes and arrested five people, both employees and customers, for suspicion of possession with intent to distribute marijuana.
The arrested individuals were in jail for four days before being released since it turned out no charges had actually been filed, according to the Orange County Register.
Susan Schroeder, chief of staff for the Orange County District Attorney’s Office, said the case had been referred back to police because it required further investigation.
Medical marijuana dispensaries are illegal in Costa Mesa, so it’s not clear why Costa Mesa Collective was even operating at the time.
But Long Beach lawyer Matthew Pappas believes the raid should not have been conducted since it is unclear whether the officers had a warrant.
He told the OC Register:
“These guys were doing this to shut down a business without due process because they don’t like it. They became judge, jury and executioner.”
Costa Mesa Police Chief Rob Sharpnack is “100 percent certain” the officers had a “code enforcement inspection warrant” but Pappas insists no such warrant was presented to Costa Mesa Collective operators during the raid.
Pappas said on August 4 he plans to file a lawsuit this week challenging the officers’ legal authority to burst through the dispensary’s door and seize items.
He says he is yet to see this supposed warrant along with an inventory of seized items, which Costa Mesa Collective operators should have received as well.
Much like the cops in the Sky High raid, the CMPD was also caught breaking surveillance cameras and looking for other hidden cameras to destroy. "If the cops were doing everything legally and within compliance of the law, there would be nothing to hide," says McGrath. "They wouldn't have gone for the cameras."
Wait - the cops in the Sky High raid were shown stealing and eating pot-laced edibles by the cameras (the ones not destroyed that is).
Why aren't they being charged for that?
never mind - in nolu chan "cops are gods" Bizarro World, they can do any fucking thing they want.
For an explanation of civil asset forfeiture, see In re Forfeiture of $9,430 United States Currency, COA (Mich 15 Dec 2011). The seized asset is the Defendant, not any person.
In re Forfeiture of $9,430 United States Currency.
No. 298479 Wayne Circuit Court LC No. 09-015761-CF
UNPUBLISHED December 15, 2011
PEOPLE OF MICHIGAN, Plaintiff-Appellee,
v.
$9,430 UNITED STATES CURRENCY, Defendant,
and
PERCY HEAD, Claimant-Appellant.
Before: O’ ONNELL , P.J., and MURRAY and DONOFRIO , JJ. PER CURIAM
Claimant, Percy Head, appeals as of right the circuit court’s judgment of forfeiture of $9,430 in United States Currency, pursuant to MCL 333.7521. We affirm. On May 12, 2009, Michigan State Trooper Jason Nemecek pulled claimant’s vehicle over on I-94 because claimant was following the car ahead of him too closely and had an air freshener hanging from his rearview mirror, possibly obstructing his vision. When Trooper Nemecek approached the car, he smelled burned marijuana. Claimant said there was nothing illegal in the car and gave Trooper Nemecek consent to search it. Trooper Nemecek first ran LEIN checks on claimant and the passenger. The passenger was in violation of parole and Trooper Nemecek took him into custody. Claimant’s LEIN check showed he was driving with a suspended license, so Trooper Nemecek arrested claimant. Trooper Nemecek searched the car and saw marijuana stems and seeds on the floor in the front seat and in the back seat. A narcotics canine searched the car but did not give a positive indication for drugs inside the vehicle. Trooper Nemecek then searched claimant pursuant to arrest and found a large amount of money in his pocket. Claimant said it was about $3,000, but it was actually $9,430. At the police station, Trooper Nemecek tested the money and the same narcotics dog alerted to the presence of narcotics on the currency.
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Trooper Nemecek decided to forfeit the money and a forfeiture trial was held, at which the trial court ruled that forfeiture was proper.
On appeal, claimant asserts the trial court erred in concluding the prosecution established by a preponderance of the evidence that the money should be forfeited. In a forfeiture proceeding, review of the trial court’s decision is for clear error. In re Forfeiture of $180,975, 478 Mich 444, 450; 734 NW2d 489 (2007). “A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made.” Id. “[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C); see also In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995).
Under MCL 333.7521(1)(f), the following property is subject to forfeiture: Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article that is traceable to an exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article or that is used or intended to be used to facilitate any violation of this article including, but not limited to, money, negotiable instruments, or securities.
While forfeiture is generally disfavored in the law, Michigan’s forfeiture provisions are part of the Public Health Code and, therefore, should be liberally construed to promote the health, safety, and welfare of the citizens of the state. Forfeiture of $19,250, 209 Mich App at 27. “However, the requirements of the forfeiture provisions may be construed strictly to ensure that the due process rights of claimants are protected.” Id.
A forfeiture proceeding against property is in rem, and the subject of the proceeding is the property itself, rather than the owner or possessor of the property, who is the claimant.Forfeiture of $180,975, 478 Mich at 450. In an in rem forfeiture proceeding, the party seeking forfeiture has the burden of proof by a preponderance of the evidence. Id. at 458. “Proof by a preponderance of the evidence requires that the factfinder believe that the evidence supporting the existence of the contested fact outweighs the evidence supporting its nonexistence.” Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 89; 367 NW2d 1 (1985).
To forfeit an asset because it was used, or intended to be used, to effect a violation of the controlled substances act, there must be a substantial connection between the asset and the underlying criminal activity.In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). The asset need not be traced to a specific sale of drugs, only to drug trafficking generally.In re Forfeiture of $1,159,420, 194 Mich App 134, 147; 486 NW2d 326 (1992). Property with only an “incidental or fortuitous connection” to the underlying criminal activity is not subject to forfeiture. Id. at 146. Whether a claimant can legitimately account for the possession of the asset is a factor considered in making this determination. See id. at 147. However, it is the prosecution’s burden to show claimant cannot so account. Id.; Forfeiture of $180,975, 478 Mich at 458 n 19.
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Here, there was ample evidence in favor of the trial court’s forfeiture decision, including that Trooper Nemecek smelled burned marijuana in the car, Trooper Nemecek saw marijuana stems and seeds in the car, claimant significantly underrepresented the amount of currency he possessed, the currency was wrapped in rubber-bands, claimant was driving a vehicle that did not belong to him, claimant said he was self-employed, the narcotics canine alerted to the presence of narcotics on claimant’s currency, and claimant had a prior misdemeanor drug conviction. This Court has held that “drug profile” evidence is not particularly probative where there is no other convincing evidence indicating a claimant was linked to drug trafficking. In re Forfeiture of $275, 227 Mich App 462, 468; 576 NW2d 431 (1998), rev’d on other grounds 457 Mich 864 (1998). Claimant’s use of a third-party vehicle, his self-employed status, his misstatement about the amount of currency he possessed, and the way the money was packaged constituted evidence showing at least part of a “drug profile.” However, there is also other persuasive evidence linking claimant to the sale or purchase of drugs, including the smell of marijuana in the car, the seeds and stems in the case seen by Trooper Nemecek, and the narcotics on the currency. Therefore, the “drug profile” evidence here is probative and was properly given weight by the trial court.
Claimant is correct when he argues that some evidence could have supported a negative finding by the trial court. In particular, the evidence showing that the narcotics canine did not alert to the presence of any narcotics in the vehicle (not even to the stems and seeds Trooper Nemecek saw), the stems and seeds were never collected for evidence, and claimant presented legitimate sources for the currency in his possession, including a $2,000 bank account withdrawal on January 21, 2009, a $5,000 withdrawal on April 21, 2009, a statement showing an account balance of $14,650 on April 10, 2009, and a receipt for a vehicle sale on April 8, 2009, for $16,298.30.[1]
However, “regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). Here, the trial court specifically found that Trooper Nemecek did see the stems and seeds in claimant’s car, that claimant misstated the amount of currency he had on him, and that the canine gave a positive indication for narcotics on claimant’s currency. Claimant does not refute the positive canine indication, and the trial judge was free to accept Trooper Nemecek’s testimony, and to discredit claimant’s testimony, including his supposedly legitimate sources of income. See Forfeiture of $19,250, 209 Mich App at 29; Forfeiture of $1,159,420, 194 Mich App at 147. In rigorously applying the clearly erroneous standard, we recognize the trial judge had the benefit of evaluating the witnesses before him and judging the credibility of the testimony, and, therefore,
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[1] The prosecution attempted to discredit these sources by pointing out that one of the bank transactions took place several weeks before claimant was pulled over, the other occurred several months before, and the vehicle sale happened over a month earlier. We also note that bank withdrawals and account balances do not actually show the legitimacy of the source of funds, merely that claimant had access to them, and that failure to collect evidence does not necessarily mean it did not exist.
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we cannot conclude that the court’s finding that the prosecution established by a preponderance of the evidence that the money was, or was intended to be, used in exchange for a controlled substance, was clearly erroneous.
Affirmed.
/s/ Peter D. O’Connell /s/ Christopher M. Murray /s/ Pat M. Donofrio
