Nat. Org. for Reform of Marijuana Laws v. Mullen

• Decision Date: 12 April 1985
• Docket Number: No. C 83-4037 RPA.,C 83-4037 RPA.
• Citation: 608 F. Supp. 945
• Parties: The NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML), a non-profit District of Columbia corporation, et al., Plaintiffs, v. Francis M. MULLEN, Jr., individually and in his official capacity as Director of the Drug Enforcement Administration et al., Defendants.
• Court: U.S. District Court — Northern District of California

608 F. Supp. 945

The NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML), a non-profit District of Columbia corporation, et al., Plaintiffs, v. Francis M. MULLEN, Jr., individually and in his official capacity as Director of the Drug Enforcement Administration et al., Defendants.

No. C 83-4037 RPA.

United States District Court, N.D. California.

April 12, 1985.

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Ronald M. Sinoway, Inc., Miranda, Cal., R. Elaine Leitner, Keker & Brockett, Arthur M. Sohcot, San Francisco, Cal., Marshall W. Krause, Larkspur, Cal., for plaintiffs.

John F. Penrose, Asst. U.S. Atty., Joseph P. Russoniello, U.S. Atty., Thomas P. Dove, Deputy Atty. Gen., John K. Van de Kamp, Atty. Gen. of the State of Cal., San Francisco, Cal., for defendants.

AMENDED ORDER GRANTING PRELIMINARY INJUNCTION AND DENYING STAY

AGUILAR, District Judge.

This is a purported class action brought by the National Organization for the Reform of Marijuana Laws (NORML), the Civil Liberties Monitoring Project, and ten residents of Northern California. The defendants are various state and federal officials and agencies involved in California's Campaign Against Marijuana Planting (CAMP). Presently before the Court is plaintiffs' motion to preliminarily enjoin CAMP activities.

CAMP is a sophisticated law enforcement program underway in 37 California counties to eradicate the state's thriving, and at times violent,¹ marijuana cultivation industry. CAMP's modus operandi is to use airplanes and helicopters to locate rural marijuana "gardens." Agents then obtain warrants and enter the parcels by land or by helicopter to destroy the crop. Helicopters are used to transport CAMP personnel to the gardens, which are often in roadless or remote areas, and to airlift the cut weed to burn sites. In its two years of operation CAMP has seized hundreds of thousands of pounds of cannibis valued at hundreds of millions of dollars. CAMP officials plan to continue the program in future growing seasons, and to adhere to current policies.

Plaintiffs do not dispute the legitimate government objectives of the CAMP program, but challenge CAMP's methods. Among the plaintiffs' contentions is that CAMP's air and ground activities violate plaintiffs' fourth amendment rights. Plaintiffs seek declaratory and injunctive relief, and damages pursuant to 42 U.S.C. § 1983 and the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

One year ago this Court denied plaintiffs' request for a preliminary injunction against CAMP's use of high-altitude U-2 planes for surveillance of marijuana crops. The Court was troubled by such domestic use of spy planes, but found no clear support for the contention that these particular flights violated plaintiffs' constitutional rights.² The Court also indicated that the constitutional rights of some individuals may have been violated as a result of CAMP roadblocks and other activities, but found that the record did not show the persistent violations of any particular plaintiff's rights necessary to justify an injunction.

Plaintiffs now return with fifty³ sworn declarations,⁴ primarily of Humboldt County residents who claim injury from recent CAMP activities. These declarants variously allege warrantless searches and seizures, arbitrary detentions and destruction of property, and sustained low-altitude helicopter activity resulting in repeated invasions of privacy, emotional distress, property damage, disrupted schooling and work, and general danger to the public.⁵ Plaintiffs contend, in short, that CAMP is "out of control" and has turned its areas of operations into "war zones." Plaintiffs' motion comes at the peak of the sinsemilla harvest in Northern California, and presumably at the height of CAMP eradication activities.

The new allegations fall into three general categories: warrantless entries, searches, and seizures on the ground; illegal roadblocks and detentions; and warrantless and dangerous helicopter surveillance. Some of the declarations and live testimony on these issues are summarized below.

GROUND SEARCHES AND SEIZURES

At least nine of the new declarants allege that CAMP personnel entered their homes or curtilage without warrants, in some cases seizing items of personal property. There is no contention that any of these declarants has been arrested or charged with any crime, and most of them explicitly deny any involvement in marijuana cultivation.

Judy Rolicheck described in her declaration and on the stand how a CAMP team of about 25 armed officers surrounded her home, ordered her family out of the house with their hands up, and held the entire family at gunpoint for two and one half hours while conducting an identification check. One of the family dogs, which Mrs. Rolicheck testified was standing still and barking, was shot and killed by a CAMP team member. Mrs. Rolicheck asked to see a warrant, and was told that "they could get one." From the evidence it appears that the nearest marijuana garden was approximately 600 yards away, and was not visible from the Rolicheck's property.

Rebecca West described in her declaration and on the stand how a CAMP helicopter swooped down to window level, circled, and finally landed in the yard of the home she was visiting:

It's a partially completed home and there was an empty wall space ... and there were four adults and two children standing in this open space and the helicopters came over the hill, over the treetops, swooped down and it looked like a stuntman's helicopter that was going to go right through the building.... It got to the very — as close as it could get. You could see their faces and it swooped down and came down to another open area and dropped three men off with guns. And they knew there were children there.... We were intimidated and afraid because these men had guns and the two ladies that we were there visiting asked us to please take our children and go. So we took off and ran the other way and the helicopter followed us and chased us about a quarter mile.

West stated that the women who stayed behind were held at gunpoint while the agents conducted a fruitless search of the property.

Thom Christensen described how two CAMP agents came onto his property and ordered him to identify himself. When he asked to see a warrant, the agents left.

Charles Keyes stated that when he was not home, CAMP agents came to his home and confiscated a .22 calibre rifle. A few weeks later, after being buzzed by a CAMP helicopter while driving home, Keyes returned to find his personal property disturbed. In neither instance was a warrant or receipt left.

Paula Bartholomy alleged that CAMP entered her locked home, went through her personal belongings, and confiscated two registered handguns and her four-wheel all-terrain vehicle that she used for erosion control work. No warrant or receipt was left.

Bob Truttman complained that a CAMP helicopter landed in his yard, causing his Appaloosa mare to bolt, break the corral fence, and run off.

Ben Bertain described how CAMP used his property as a landing pad for three helicopters and 35 to 40 CAMP agents, some of whom were armed with automatic weapons:

In order to land their helicopters on my land, the CAMP officers cut down ... four fir trees and three madrone trees. One of these trees was my prized Christmas tree which I had cared for and trimmed for this Christmas season. My planted lawn was scarred and my flower gardens were completely destroyed.

Because his wife "could not bear to be at home" during the extended helicopter activity at their property, Mr. and Mrs. Bertain checked into a motel for two and one half weeks.

Similarly, on three different days CAMP used Dennis Bone's land as a "staging area":

On each of these days helicopters landed within one hundred feet of my home on more than two dozen occasions. They flew over my home at below tree top level on at least 50 different occasions on each of these days. They were low enough for me to clearly see facial characteristics of the helicopter crews.

Steven Swain found his home ransacked on two consecutive days, each time after CAMP agents allegedly had been working in the area. His water line was also cut. No warrant or other explanation was left.

Sigurd Anderson alleged that CAMP agents took his entire water pumping system, wrenches, and gas tanks, and chopped a water hose. No warrant or receipt was left.

The defendants have not effectively responded to these allegations. They did not file or offer to file any counter-declarations from the CAMP agents involved in the incidents alleged, call any of these agents as witnesses at the preliminary injunction hearing, or produce copies of warrants. William Ruzzamenti, a special agent of the Drug Enforcement Administration who supervises and administers the CAMP program, appeared and filed a declaration based only on his discussion with CAMP personnel, not on personal knowledge. He testified that he never attempted to interview any of the declarants or inspect the private property at issue. As for the Rolicheck incident, he merely adopted the written investigative report of the United States Forest Service.⁶

Even if the Court were to accept as true the statements in Mr. Ruzzamenti's hearsay declaration, his account does not rebut plaintiffs' allegations. Ruzzamenti addressed seven of the twelve incidents described above. Of these, he was apparently unaware of the events described by Ms. West, he differed with Mr. Bertain as to the purpose of CAMP's presence on his property and the extent of the damage, and he appeared to concede that CAMP was on Mr. Swain's property, but only on one of the two days Swain alleged. Ruzzamenti did not directly deny the substance of these or any of the other claims of warrantless entries, searches, or seizures. Rather, in nearly every instance...