Last ones standing

Robert Whiteaker struggles to remain composed as United States Magistrate Dale A. Drozd reads aloud the federal charges against him. A sandy-haired man in his early 40s, Whiteaker faces 10 years to life in prison for growing marijuana, even with a physician’s consent to use the drug. His wife, Shawna, faces up to 40 years.

A week earlier, the former Rio Linda residents had rejected a final deal from Sacramento prosecutors that would have freed him in just over a year and her in six months. But the couple refused, risking longer sentences for the sake of a principle.

The offer came only days before a Placer County detective was scheduled to take the stand again to respond to a laundry list of alleged lies. The Whiteakers believe dishonest police work led to their arrest, as well as four dozen other raids on customers of a Sacramento nursery called Green Fire (“Search Unwarranted,” SN&R, January 20, 2000).

Another couple on trial with the Whiteakers, Ed and Deborah Denton, accepted an even sweeter deal that included no jail time and allowed them to use marijuana medicinally while on probation. They would not chance a federal trial, where California’s 1996 Compassionate Use Act, Proposition 215, cannot be used as a defense.

But Robert Whiteaker won’t plead guilty to protect a possibly dirty cop. He is willing to risk everything. As Drozd and his attorneys argue over whether he should be considered a flight risk, Whiteaker is prepared for the worst. In his pocket are a half-dozen prescription drugs he will need if ordered immediately to jail today.

The Whiteakers are the last ones standing in the Green Fire raids, the last ones able to expose the truth, or to go down trying.

While the Whiteakers risk their freedom, the police who staged the Green Fire stakeout have reason to be nervous as well. Defendants have already filed six lawsuits against Placer County, including a federal racketeering suit that accuses local and federal law enforcement of conspiring to undermine California’s medical marijuana law.

If the Whiteakers are able to undermine the credibility of Detective Tracy Grant, the leader of Placer County’s Marijuana Eradication Team (MET), his testimony could come back to haunt authorities when the civil suits go to trial early next year.

But the potential damage to prosecutors goes further than that. Perhaps just as importantly, Grant’s testimony might uncover an improper pact between Placer County’s anti-pot task force and the U.S. Attorney’s Office in Sacramento. If proven, the accusation could have serious repercussions.

The high-stakes showdown had been brewing for months, since attorneys for the Whiteakers and the Dentons won the right to challenge the 1999 search warrants that led to their arrests. The warrants were among 50 or more that the Placer County MET executed in a four-county region after staking out Sacramento’s Green Fire nursery, which specializes in hydroponic growing equipment.

Similar to the Green Merchant raids conducted by the U.S. Drug Enforcement Administration in the late 1980s, the Green Fire raids swept up dozens of marijuana growers. The Placer team posed as Green Fire sales staff, jotting down license plate numbers of the shop’s customers and photocopying their checks.

By itself, shopping at a hydroponics shop isn’t evidence of a crime. To persuade a judge to issue a search warrant, investigators would need to find real evidence to flesh out a portrait of a commercial pot grower. Led by Grant, the federally funded task force checked automobile and utility records, and then purportedly searched the trash of those customers with higher-than-average utility bills. Armed with damning power comparisons and claims of finding “fresh marijuana” in household trash, the investigators easily convinced Sacramento County judges to issue the warrants.

But the Green Fire operation had problems. Among those it targeted were a dozen or more suspects with valid medical recommendations to grow and use marijuana for a variety of ailments. Also raided were a handful of residents who claimed they were growing nothing more sinister than tomatoes or marigolds. They accused the Placer team of falsifying evidence in order to obtain a search warrant.

Organized by Placer dentist Michael Baldwin and Sacramento resident Amy Breeze, both medical-cannabis users, nearly half of the Green Fire defendants came together and compared notes. Only then did they discover that Green Fire was the common denominator in their arrests. Combing through arrest reports and search warrant affidavits, they found dozens of damaging inconsistencies and apparent cut-and-paste accusations. The research formed the basis of six lawsuits that Green Fire defendants have filed so far against Placer County, with others expected in coming weeks.

The Whiteakers’ lives were turned upside-down at 7:20 a.m. on May 10, 1999, when Detective Grant and the Placer MET arrived at the couple’s Rio Linda home. The team seized about 200 marijuana plants growing in the garage, half of which were recent, unrooted cuttings.

Robert and Shawna Whiteaker each obtained a recommendation to use cannabis for anxiety and depression, while Robert also found pot helped ease the chronic pain from a back disorder, but the police didn’t care about their prescriptions.

After the raid, the officers handed over the Whiteakers’ 10-year-old son, Collin, and 8-year-old daughter, Audreya, to Child Protective Services. It would take the Whiteakers more than a month and $20,000 in legal fees to win the release of their children from a receiving home.

“I felt like I was in Germany or something,” Shawna Whiteaker said in December. “As patriotic as I’ve been, I couldn’t believe what they could do. They kept asking me if I was aware that my husband was selling things on the side. I kept telling them it was our first crop. I was telling them the truth, and it had nothing to do with drug dealing.”

Shortly after their arrest, the Whiteakers found out that theirs was a typical Green Fire case. In the search warrant affidavit, Grant swore that he spotted a car in the driveway of the Whiteaker home on April 12, 1999, yet the car in question was in a transmission shop from March 25 through May 5.

Grant also swore he found “fresh green and still moist” marijuana in the couple’s trash. Yet, the couple insisted they had only discarded waste from their 48-square-foot indoor garden in a backyard compost pile. After obtaining records from the Sacramento Municipal Utility District, the Whiteakers learned that Grant had also “cherry-picked” the utility records of three neighboring houses, but had omitted the records from two residences with comparable power consumption.

Other Green Fire defendants buttressed the Whiteakers’ claims. In his successful motion to suppress evidence in the Whiteaker case, Oakland attorney Bill Panzer cited 23 other instances of Grant’s questionable use of SMUD utility records. Panzer was able to cite 21 other search warrants where Grant claimed to have found “fresh green and still moist” marijuana—an amazing discovery when considering that most illicit gardeners take pains to avoid incriminating themselves.

By November 1, the Whiteakers and their attorneys were increasingly confident. Grant was being battered on the stand, and Judge Gail Ohanesian was openly displaying skepticism at his explanations. Zeroing in on the federal grand-jury subpoenas that Grant used to acquire SMUD records, Panzer and co-counsel Jan Karowski of Sacramento hammered away at Grant’s veracity, suggesting that the U.S. Attorney’s Office had at some point simply handed Grant a stack of blank subpoenas to fill out.

“Was there a federal investigation at all?” Panzer asked the court. “If there was not, then it was not proper use of a federal grand jury.”

The prosecution battled back. Sacramento Deputy District Attorney Joy Smiley warned Ohanesian of the slippery slope the defense was headed down.

“Once the defense gets into how (Grant) obtained grand jury subpoenas, we don’t know how far we’re going to go down that path,” Smiley said.

And at one point, four assistant U.S. attorneys lobbied Ohanesian in an attempt to shield Grant from testifying. Even so, Ohanesian appeared ready to toss the case out.

“Based on the testimony I’ve heard so far, the defense has raised reasonable doubt about the credibility of Detective Grant,” Ohanesian said. “His credibility is at the heart of the motion to suppress.”

Ohanesian gave the U.S. Attorney’s office another month to seek permission from Washington, D.C., to allow Grant to testify about how he acquired the subpoenas. But the hearing would never occur.

A week before the next scheduled hearing, attorneys for the Whiteakers and Dentons received a faxed ultimatum with a 48-hour deadline: plead guilty in state court or face federal charges. Robert Whiteaker refused to budge.

“We won. We were getting to the bottom of it,” he would say afterward. “I believe there are U.S. attorneys who stand to lose in this, as well as Tracy Grant, and probably Placer County officials and others. I really think they’re trying to protect their butt.”

Judge Ohanesian declined to comment on the apparent deal, as did the Placer County Sheriff’s Department and the U.S. Attorney’s Office. Smiley said the decision to try the Whiteakers in federal court was the U.S. Attorney’s after “federal issues” arose in the case. But Panzer suggested prosecutors might have been surprised by Whiteaker’s gumption.

“I’ll bet you that when the U.S. Attorney and Joy Smiley got together and made that ultimatum, that they never, ever thought that he wasn’t going to take it,” Panzer said last week. “I think our chances are good.”

In a courtroom where many of the defendants wear the orange jumpsuits of the Sacramento County Jail, the Whiteakers’ middle-class appearance makes them stand out. As Drozd recites the sentences the Whiteakers face, Robert Whiteaker’s neck reddens with emotion. Federal prosecutors won’t accept a promise-to-appear that allowed the couple to remain free in the past three years.

“You’re taking quite a risk coming back to court,” Drozd informs Whiteaker.

That’s the price the Whiteakers are willing to pay rather than to remain silent in the face of an apparent conspiracy. The couple returns to court March 6 before U.S. District Judge William B. Chubb.