Benjamin Gasper

Victim of Continued Bias Against Collective Cultivation in San Diego
By: Eugene Davidovich

Benjamin Gasper, a medical marijuana patient, rented a warehouse in the Sports Arena area of San Diego, a heavily commercial district far from residences and any other “sensitive uses”. Benjamin and two other medical marijuana patients came together at the warehouse location to cultivate medical marijuana for their own personal needs. Their effort was abruptly ended by the San Diego County Narcotics Task Force in November 2009.

Benjamin, having attended and successfully completed classes at Oaksterdam University, learned how to properly cultivate the medication himself and began doing so at the warehouse. In order to minimize the cost of cultivation as well as to help provide medication to other patients in the community that need it, Benjamin invited two other patients to join the effort.

They all came together with materials, equipment, and money, and built an indoor medical cultivation room inside the warehouse designed to supply them with the medication needed.

One night in November 2009, Benjamin and several of his close friends went to a concert at the Sports Arena. Having had a couple of drinks at the concert, he decided not to drive home and encouraged his friends not to drive either. They all walked to Benjamin’s warehouse and spent the night on air mattresses and couches Benjamin had in the public portion of the warehouse space. The cultivation room was completely hidden and the friends did not even know of its existence.

Everyone stayed overnight at the warehouse, and in the morning Benjamin left to run errands, leaving two of his friends at the warehouse and the warehouse door slightly open.

Shortly after he left, a police car drove up to the warehouse and the officer noticed that the rollup door of the warehouse was not rolled down all the way. Several policemen entered the premises to conduct a “safety check”; according to the officers, they thought a burglary might have been in progress.

The officers found Benjamin’s friends inside who explained that Benjamin was not there and that they had spent the night at his place after the concert.

Not satisfied with their answers, the officers would not leave. Rather, they proceeded to search the entire premises. After over thirty minutes of searching, they happened on the entrance to the cultivation room which was completely isolated and sealed off from the main part of the warehouse.

After entering and rummaging through the room, they eventually called Benjamin and told him they had found his “grow-op” and that he needed to come back to the warehouse.

Benjamin immediately returned to the warehouse, only to be interrogated, arrested, and jailed. The arresting detective did not give Benjamin the opportunity to present the collective cultivation agreement or the patients’ recommendations he had on premises. The law enforcement motto continues to be “let the courts sort it out.”

On December 4, 2009, Benjamin’s mother Carole contacted San Diego Americans for Safe Access and NUG Magazine asking for assistance. She wrote “I hope someone can help me find help for my son. He is in a San Diego jail after police raided his place without a search warrant.  He has a license and prescription program for medical marijuana but they went in and confiscated everything.”

Carole explained on the telephone later that evening that Benjamin did not have the money to hire an attorney, and she asked San Diego ASA and NUG to do whatever we could to help her son.

That night we sent an email to Benjamin in jail and let him know that his mother had contacted us and that he had support from the community when he got out. According to Benjamin, that email provided him both support and encouragement to fight through this ordeal and stand up for his rights.

On December 7, 2009, I went to the San Diego Superior Court, Department 11, for Benjamin’s bail hearing at which he was released on his own recognizance after spending two weeks locked up in the county jail.

That day in court, I ran into Ms. Bahar Ansari, a local criminal defense attorney whom I had previously met at the courthouse during another medical marijuana case. After explaining to her Benjamin’s situation and that he needed an attorney, Ms. Ansari said she had room to take on a case pro-bono and that she would be happy to help Benjamin, explaining that she was concerned with how patients are treated in San Diego for attempting to simply follow the law.

Since then, Ms. Ansari has joined the San Diego Americans for Safe Access Advisory Board and has been key in helping us organize and remain affective in the struggle for patients’ rights.

Aside from taking on Benjamin’s case, Ms. Ansari represented me as co-counsel with Michael J. McCabe and was instrumental in obtaining the “not guilty on all counts” verdict returned by the jury in less than four hours of deliberation.

On March 30, 2010, Ms. Ansari went to court to represent Benjamin at his preliminary hearing. Benjamin was charged from the November raid with cultivation of marijuana and possession of what the police allege to be brass knuckles.

The preliminary hearing was assigned to Department 57 in front of Judge Roger W. Krauel, and began with the prosecution presenting testimony from two narcotics detectives.

One of the detectives claimed that Benjamin told him he was a primary caregiver, which in the detectives mind gave him the authority to shut everything down. The detective who found the “brass knuckles” agreed that they had been found in a box packed away in the warehouse and that they were not brass but likely aluminum.

Ms. Ansari called to the stand both of the other collective members whose medical marijuana recommendations she had subpoenaed ahead of time, allowing her to enter them into evidence as business records and helping establish the medical marijuana defense for the collective.

Both members testified that they all got together in October 2009 and signed a collective agreement which stated, “As qualified medical marijuana patients under California law, we choose to associate collectively or cooperatively to cultivate marijuana for medical purposes. All members of our medical marijuana collective will contribute labor, funds, or materials, and all will receive medicine.”

Both members testified they had signed the agreement last year and all actively contributed to the effort up until the day of the raid.

During a court recess, in a surprising move, the prosecution offered to drop all medical marijuana charges against Benjamin if he agreed to plead guilty to possession of the “brass knuckles”, which is a felony. Benjamin refused the offer and Ms. Ansari proceeded to present the case.

The defense called to the stand medical marijuana expert, author, and patient advocate William Britt to testify about what a collective is and whether the number of plants seized from Benjamin’s warehouse was a reasonable amount for the patients to have.

Based on his examination of pictures of the indoor cultivation effort, Mr. Britt determined that it was a reasonable amount. He further explained that most of the plants seized appeared to be seedlings which “most of the time don’t survive.”

The prosecution challenged the credibility of one of the collective members and urged the judge to bind the case over for trial.

The judge said that there was clearly enough evidence of a medical marijuana defense and a legal cultivation effort. He warned the prosecution that they would have a hard time succeeding at trial.

The case was bound over for trial and the next hearing in the case is on May 11, 2010 at 8:30 in Department 31 – San Diego Superior Court, 220 W. Broadway San Diego, CA 92101.

Please come out and support Benjamin and his attorney, Bahar Ansari, as they fight for patients’ rights to collectively cultivate medical cannabis.

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