How California Cops Exploit Legal Gray Areas to Continue Their War on Cannabis

Zeke Flatten was driving southbound on Highway 101 in Northern California in December 2017 when he was pulled over by an unmarked SUV with flashing emergency lights.

Two officers clad in green, military-style garb and bulletproof vests approached Flatten’s vehicle but didn’t identify themselves. After asking Flatten if he knew how fast he was going, one of the men told him they suspected he was transporting cannabis, according to court documents. Flatten was immediately suspicious.

“He never mentioned anything else about the reason, probable cause, why he stopped me,” Flatten said in an interview with The Appeal.

The officers were correct, however: Flatten, a film producer and former undercover cop who’d temporarily relocated to Northern California, had three pounds of marijuana, including a few rolled joints, in the car—worth over $3,000 at the time. Flatten says he was working on a number of cannabis-related projects and was driving to a lab to test the weed, which he’d hoped to sell legally.

Just over a year before the stop, California had voted to legalize the personal cultivation and possession of up to an ounce of marijuana with the passage of Proposition 64. Under the measure, possession of larger amounts of cannabis was reduced from a felony offense to a misdemeanor, punishable by up to six months of incarceration and a maximum $500 fine.

But marijuana remains illegal at the federal level, classified as a Schedule 1 substance alongside drugs like heroin, LSD, and MDMA, known as Ecstasy. When the officers identified themselves as members of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a federal agency, Flatten said he started to realize something was off.

“There’s no patches, there’s no badges, there’s no name tags,” Flatten said.

Flatten says he offered to show the officers his medical marijuana card, which should have allowed him to have the cannabis. But they didn’t want to look at the card. He figured if the agents believed the marijuana was illegal, they’d take it and provide him a receipt for the seizure, which would give him a chance to argue his case in court, Flatten said.

Instead, they proceeded to confiscate the cannabis from the back of Flatten’s car without running his name for warrants, or issuing a traffic ticket, court summons, or even documentation of the seizure, Flatten said. The officers did tell him that he might be getting a letter from the federal government. But he never did.

Flatten said he felt like he’d been robbed. He started looking for a lawyer, and a few days later, went to the Mendocino County Sheriff’s Department to report the incident. The next week, after returning to his home state of Texas, he made an official report at the FBI field office in San Antonio.

He would soon find out that the officers who seized his marijuana weren’t actually ATF agents. Flatten alleges one was a member of the sheriff’s department. The other was from the Rohnert Park Police Department, and has since been indicted on federal charges including extortion and conspiracy in connection with cannabis seizures.

Flatten is still fighting for accountability today, as one of four plaintiffs in a RICO conspiracy lawsuit alleging widespread police corruption around marijuana enforcement operations in Mendocino County. He maintains that the officers were seeking to enrich themselves when they targeted him.

Similar controversies over cannabis enforcement have emerged statewide since the passage of Proposition 64. In the five years after California legalized recreational marijuana in 2016, at least 40 civil complaints were filed around the state accusing county sheriffs of making unlawful seizures, according to records obtained by The Appeal.

Plaintiffs in these cases accuse police of adopting a “seize first, ask questions later” mentality, sometimes conducting heavily militarized operations to raid properties where they believed cannabis was being stored or grown. Many plaintiffs allege their rights were violated. The marijuana at issue in these cases was rarely returned, and it was often destroyed before any official determination of guilt or impropriety.

Lawyers say these sorts of questionable operations are still taking place regularly across California, motivated in part by the fact that civil penalties stemming from cannabis enforcement have become a significant source of revenue for their municipalities. In the most extreme cases, officers have been charged with personally profiting off stolen cash and marijuana.

“This corruption is facilitated by the fact that federal law enforcement officials still consider persons who grow legally under California law as criminals,” Flatten’s lawyers wrote in a lawsuit, filed in September 2022 in the U.S. Court of Appeals for the Ninth Circuit. “Accordingly, there are essentially no checks and balances on corrupt law enforcement officers who extort and divert marijuana for personal gain.”

For Flatten, the December 2017 incident was only the beginning.

In September 2018, as he was contesting the seizure, Flatten says a mechanic found a GPS device hardwired into his car. He also says he has reason to believe police hacked his phone. Flatten recalled arriving at his Texas home one night to find the words, “Light is death police cockroach,” written on a wall. He could never prove the vandalism was in retaliation for his coming forward, but he said it was the only plausible explanation at the time.

In 2021, Flatten’s complaints were at least partially validated when former Rohnert Park officer Brendon Jacy Tatum pleaded guilty to stealing at least $3,700 in cash and marijuana from drivers he pulled over on Highway 101, where Flatten was stopped. Prosecutors claimed Tatum had also failed to report hundreds of thousands of dollars of bank deposits—money he’d allegedly taken from motorists—and bought a $46,000 fishing boat with stolen cash. Joseph Huffaker, another former Rohnert Park officer charged in the scheme, has pleaded not guilty. In December, a superseding indictment added four new charges, including impersonating a federal officer.

Flatten alleges that Huffaker was one of the officers who pulled him over in 2017. Neither Tatum nor Huffaker responded to requests for comment. Rohnert Park police declined to comment, citing ongoing litigation.

After Flatten went public with his story, others came forward with similar accounts of police in the Rohnert Park area illegally seizing their marijuana. In December 2016, Huedell Freeman was pulled over while driving to Los Angeles with 47 pounds of legal cannabis that he said he had planned to sell to a dispensary. Although Freeman had a medicinal license and was authorized to transport the marijuana, police took it anyway.

“I naively said, ‘I certainly hope you’re keeping it an air conditioned cool room, because it will go bad if you don’t,’” Freeman recounted in an interview with The Appeal. The officers replied, “‘Oh, yeah, Mr. Freeman, don’t worry. And yes, we do return cannabis. Oh, yeah, don’t worry about that,’” he recalled.

Freeman never saw his cannabis again. He was among a group of eight motorists, including Flatten, who sued Rohnert Park for illegal seizures of marijuana and cash. Freeman ultimately settled with the city for $287,500 in 2020.

“I have been as legal as humanly possible every step of the way,” Freeman said. “I’ve totally lost faith in the law enforcement agencies in the state and certainly the country. You should be able to trust the police. But I don’t.”

Dozens of other civil complaints filed against California sheriffs in the five years after Proposition 64’s passage contain a wide variety of allegations. But viewed together, the cases point to a pattern of departments taking advantage of inconsistent and often murky cannabis regulations to justify a heavy-handed approach to enforcement.

On a cool morning in October 2018, Andres Rondon spotted apparent burglars dressed in paramilitary garb slinking around his cannabis farm in Mendocino County, where he ran a legal operation called Skunkworx Pharms.

Rondon grabbed his phone and called 911.

Two hours later, Mendocino County sheriff’s deputies arrived. But rather than track down the thieves, they came with a search warrant and proceeded to destroy $365,000 worth of Rondon’s cannabis and seize additional property, including cell phones and other valuables, according to a lawsuit Rondon filed against the county seeking to recover the losses. The suit also accused officers of depriving “Rondon of his next crop cycle … with a value of $350,000.”

In a letter to Mendocino County officials after the raid, Rondon’s lawyer accused the sheriff’s office of neglecting “clear indications of a serious crime,” and focusing instead on “pursuing a criminal investigation” against a “legally-authorized cultivator.”

Rondon’s suit wound its way through state court before ending up before a federal appellate judge who granted the county’s motion to dismiss. The judge ruled that “federal law does not recognize a property interest in cannabis” or allow plaintiffs to “receive monetary damages for disruption of an enterprise forbidden by federal criminal statutes.”

In one case in Madera County in 2019, a grower who said she was unlawfully searched sued for more than $50,000, citing loss of property and emotional damages. Sheriff’s deputies in Los Angeles County raided a medical marijuana facility in 2017 and seized more than $100,000 worth of product that growers say spoiled in police possession, according to a lawsuit. In a raid in Calaveras County in 2017, the sheriff’s department cut down 400 plants while the growers’ rights to the plants were still being litigated. Although a judge ultimately ruled that the operation was not legal, the punishment came long before.

“We were supposed to be given due process of law to remove under the county ordinance,” Kenneth Foley, an attorney for the growers, told The Appeal.

Experts say law enforcement’s aggressive posture toward cannabis is just another challenge for growers already weathering a dysfunctional legal market in California. Since voters approved adult recreational cannabis in 2016, growers have been promised a so-called green rush. Instead, they’ve struggled with high taxes, administrative hurdles, and competition from the illicit market.

The continued conflict between state and federal marijuana laws is a key driver of law enforcement overreach, according to Joe Rogoway, a Los Angeles-based cannabis attorney.

The entire marijuana industry is “arguably unlawful,” Rogoway told The Appeal. “Law enforcement, if they are inclined to be corrupt and they have the opportunity to be corrupt, then that’s all part of the calculus [of] feeling like they could get away with it.”

Although people technically have legal recourse to challenge improper seizures, the process can be complicated and is dependent on law enforcement following protocols, including issuing receipts after taking cannabis. But as in Flatten’s case, that doesn’t always happen, said Ashley Bargenquast, a criminal defense and cannabis compliance attorney.

“The difference between getting robbed and having evidence seized by law enforcement is that you should theoretically be able to get [your property] back if it’s lawful,” Bargenquast told The Appeal. “So when they don’t, that’s an issue.”

Matthew Mason was at his Santa Cruz home in September 2021 when he found sheriff’s deputies outside with semi-automatic weapons drawn. But the deputies weren’t there for a criminal issue: They accused Mason of growing cannabis without a permit.

Instead of taking Mason’s marijuana for testing or charging him with a crime related to unlicensed growing, they destroyed his plants, seized his phone and cash, and issued a citation for $225,845. The total loss of property that day was valued at around $100,000, according to a complaint he later filed against the county.

Further adding to the frustration, the sheriff department’s warrant didn’t actually authorize the destruction of the plants, Mason’s lawyer, Sam Ray, would later point out.

In an interview with The Appeal, Ray took issue with the militarized nature of the raid, saying it didn’t reflect the fact that officers were enforcing a permitting issue.

“For electrical work, you need permits—it’s a safety issue—but you’re not going to have 10 police officers show up with ARs and guns drawn because you did work without a permit in your home,” he said.

The Santa Cruz County Sheriff Department’s handling of Mason’s case shows how law enforcement can selectively use both the criminal and civil process to crack down on unpermitted growers, according to Ray.

“They’re affording themselves the right to investigate as if it’s a crime, which gives you more tools like no-notice warrants and the use of tools law enforcement would typically use,” he said. “Then they pursue civil remedy, which has a lower level of due process.”

Ray argued that the county’s decision to hit Mason with a hefty fine, rather than the threat of criminal prosecution, boils down to economics.

“Do we want to pay for this person to live for the next two years [in jail], or have them pay $200,000?” he said. “That speaks for itself.”

Civil fines related to cannabis cultivation have become a valuable source of revenue in some California counties, sparking controversy over broader enforcement efforts. Residents of Humboldt County filed a lawsuit earlier this year alleging that the local cannabis code-enforcement system is “designed to generate money for the County as efficiently as possible.”

Although the county has employed dedicated “Code Enforcement officers” responsible for issuing many of these penalties, attorneys for the plaintiffs say law enforcement often gets involved as well.

“They’re using their continued prosecution of the cannabis cultivation as the hook to sort of get onto people’s properties and to issue fines,” said Jared McClain, a lawyer with the Institute for Justice, a public interest law firm representing property owners in their lawsuit against Humboldt County. “They have been prosecuting cannabis one way for so long. Now that it is legal, they don’t really have it within them to stop.”