Is this in your home? Know your rights!

Christina DeGiovanni woke Thursday morning to the sound of pounding on the door of her Arcata home. A senior Humboldt State University student, DeGiovanni lived in the house with her 35-year-old boyfriend, Scott Porter. Although Porter was out of town, DeGiovanni did not think twice about opening the front door. 

 
“I opened the door and there were several drug task force agents outside of my home,” she said. “I was flabbergasted.”
 
Over the next several hours, agents obtained a warrant and searched the home. Agents reported finding two pounds of marijuana, three firearms and $49,000 in cash. Agents arrested DeGiovanni on suspicion of possession of marijuana for sale and being armed during the commission of a felony, snapped a mugshot and released her on a bail bond.

It was only hours later, following her release, that DeGiovanni learned from local newspapers her boyfriend Porter had been arrested in Reno, Nev. Reno officers reportedly found $73,000 in Porter’s luggage while conducting a narcotics courier sting on a passenger rail train. Porter was released at the scene, but may face future charges. A tip off from the Reno officers led Humboldt County Drug Task Force agents to search his and DeGiovanni’s Arcata home.

In a phone call to The Lumberjack on Monday, DeGiovanni offered a solemn warning to her peers.

“This could happen to any HSU student,” she said.

Peter Martin has worked as a civil rights and criminal defense attorney in Eureka for the past 25 years. He has dealt with a number of marijuana cases.

Although unfamiliar with the specifics of DeGiovanni’s case, he did offer general advice for HSU students who use marijuana.

“Law enforcement takes a different view on personal use,” he said. “If it is less than an ounce it is technically a misdemeanor but there's no possibility of jail. However, there can be collateral consequences such as ineligibility for federal financial aid and, if under age 21, a suspension of the driving privilege.”

Serious trouble comes, Martin said, when the amount of marijuana in the home is above what would be expected for personal use or if law enforcement agents were given a reason to believe cannabis was being sold to people who are not medical marijuana patients.

“When they think that the possession is for sale and outside of the medical marijuana laws, then it is just like the old days,” he said.

He also said that possession often falls into a gray area. This can make living with a boyfriend, girlfriend or even roommates involved in illegal drug use tricky.

“If you know it is there, if you know it is contraband and if you control the space where it is located, you can be found guilty of possession,” he said. That applies even if the drugs don’t personally belong to you.

Mariellen Jurkovich, the director of the Humboldt Patient Resource Center, a medical marijuana cooperative in Arcata, expects that there are many students in Arcata living with marijuana under their roofs that are not aware of the consequences if they are caught, especially if they exceed the requirements of a 215 card.

“It is hard to make a living here,” she said, pointing to student expenses like tuition, food, gas and rent. “Lots of kids are thinking, ‘We can make a lot of money.’ People can justify putting in a garden.”

Claire Botsford, a senior at HSU, said she occasionally trims marijuana for a little extra pocket cash.

“It’s not my nine-to-five job,” Botsford said. “But being in that environment, I encounter people with weed on them and in their home. I can do this when I need the money. It’s on my own terms.”

But the kinesiology major said she never works with someone she does not feel comfortable with.

Another HSU student, a senior English major, who declined to state his name, said he knows several people that trim.

“Jesus Christ, we’re in Humboldt, it’s everywhere,” he said. “I know a lot of mother fuckers that trim — like everybody. People think Humboldt is this magical land with no consequences. But guess what? One day the hammer is going to come down and you’re breaking the law.”

Jurkovich agrees that there can be consequences. Although many have the perception that they should not worry — because they live in the Emerald Triangle — right now that might not be the case, she said.

“We have the perception that everything is okay, but things are getting stricter. The federal government is cracking down. Neighbors are complaining. There is a lot of pressure on the city to deal with marijuana.”

Although the city and federal government has recently tightened enforcement against medical marijuana use — two of Arcata’s four medical marijuana cooperatives closed in the last few months after receiving letters from the California State attorneys —  Jurkovich doesn’t place blame on anyone in particular.

“I think everyone that has a job to do is trying to do it. But till we get the laws figured out, it will remain confusing,” she said. “This [DeGiovanni’s arrest] is one little example of a huge problem with tons of agencies involved. As a culture — especially in California — I think we are beyond the misconception that marijuana is addictive and dangerous. But we haven’t convinced our federal government of that yet.”

Jurkovich said the most important thing for medical marijuana users is knowing what is happening in your own home and keeping up with the ever-changing medical marijuana laws.  

“Lots of people are living in homes without knowing what is going on under their roof,” she said. “I have managed a bank, sat on a school board and never seen anything as complicated as this. You are trying to follow the law and every six months the laws change. Everyone is confused. Patients are scared.”

One of the easiest ways to protect yourself is obtaining a 215 card and not letting it expire, she said.

“Everyone is always mad when busts happen, but then you realize, ‘Hey, maybe they were being bad,’’’ she said. Keeping a current 215 card and staying within the required space allocation for a grow and possession are two ways to protect yourself.

“The consequences of a felony are not worth it,” she said.

In his experience, Martin said people in Humboldt County do not often go to prison for selling marijuana. However, the maximum penalty an individual could face if convicted for felony possession for sale or cultivation of marijuana — two different crimes that carry the same penalty in California — is up to three years in prison.

“When sentenced to a felony, the judge has two options,” he said. “You can be sentenced to jail for three years, two years or 16 months or you can be sentenced to felony probation. That would involve spending up to one year in county jail, a possible fine and doing three to five years on probation. A lot of individuals involved in pot cases go to jail when arrested and then do felony probation.”

Although he couldn’t speak to the specifics of DeGiovanni’s case, speaking generally, Martin said the district attorney might choose to charge both individuals arrested in such a case, or they might settle for a plea bargain.

“It doesn’t seem like she [DeGiovanni] is the heavy hitter in this case,” he said. “They might decide to dismiss her case in exchange for a plea from him [Porter]. She might also be charged with misdemeanor possession. It really depends on the case.”

Despite her arrest and the items found in her home, DeGiovanni maintains her innocence.

“I wasn’t aware of anything,” she said. “I had no idea that anything like this was going on in my house.”

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Your rights under Prop. 215:

How do I get a 215 card?

A physician referral is all that is needed to obtain a 215 card. Cards can be granted for “any illness for which marijuana provides relief.” 

What is Prop. 215?

Proposition 215, or the Compassionate Use Act of 1996, provides limited immunity from the prosecution of possession and cultivation of marijuana for California residents. This proposition was created to “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.”

As a medical marijuana user, how many marijuana plants may I have in my home?

Outdoor: Patients or caregivers are allowed a 100-square-feet vegetative canopy for the cultivation of plants and 99 plants or less, including starts. 
Indoor: Patients or caregivers are allowed a 100-square-feet vegetative canopy for the cultivation of plants and 99 plants or less, including starts and who are using 1.5 kilowatts (1500 watts) or less of illumination by artificial growing lights. 

How much processed marijuana may I have?

Patients or caregivers are allowed to possess no more than three pounds of processed marijuana. Certain cannabis products — baked goods, tinctures, salves and infusions — will be treated on a case-by-case basis.

What if I have a 215 card but am found to be in possession of more than the amount of marijuana I am allowed under Prop. 215?

Under both the U.S. and California constitutions, it is illegal to confiscate materials without due process and compensation. Therefore, if an officer believes the cultivation or possession to be in accordance with Health and Safety Code 11362.5, they may only confiscate the amount in excess of those guidelines. 

Can I own a gun if I am a medical marijuana user?

California law does not prohibit medical marijuana users from having guns. However, letters were sent to gun dealers in 2011 from the federal Bureau of Alcohol Tobacco and Firearms, warning them not to sell firearms to medical marijuana users. When buying a gun, if you say you are a user of illegal drugs/ medical marijuana you will be ineligible to purchase. Owning a firearm in connection with an offense such as cultivation or possession for sale may result in additional criminal charges.

Can I use medical marijuana at Humboldt State University?

No. The California State University system has directed that all 23 campuses shall follow federal law which does not recognize Prop. 215. Not following this directive could result in a total loss of federal funding to Humboldt State University. Medical marijuana users must store and use marijuana off campus. Those found to be in possession or using marijuana on the HSU campus will be cited and have their marijuana and paraphernalia seized as evidence. 


SOURCES: HUMBOLDT COUNTY DISTRICT ATTORNEY'S HEALTH & SAFETY CODE §§ 11357 - 11360, PROSECUTION GUIDELINE, CALIFORNIA NORML and HUMBOLDT STATE UNIVERSITY POLICE DEPARTMENT