As a Privileged White Guy Living in 'Liberal' Berkeley, I Wasn't Expecting a Police Raid on My Backyard Pot Plants
Life should be pretty good for a waspy, well-educated white guy in Berkeley--and it generally is--but sometimes that balloon of privilege gets punctured. When it does, it can be an eye-opening and consciousness-raising event. My run-in with Berkeley cops over a few pot plants was one of those moments, and some of my differently-situated friends helped show me the light.
Late coffee had given way to later burgers and fries. I chomped away the conversation with two of my more intellectually-minded friends whom I met regularly at the same coffee shop at least three or four times a week. It was always fresh and challenging; I, a WASP from Texas, tested my perspective against a working-class Jewish man and an African-American man from the big city. We were all well-read, but they were older, wiser. I cherished the hours.
Finally, I felt comfortable opening up about my arrest.
As I finished, my black friend looked me directly in the eye. “Now, I trust you understand the sense in which I offer this,” he said, wiping his mouth. “But this one time, they treated you like a nigger.”
I took a moment to let that sink in. Then I nodded.
He held my gaze a moment longer. “Don't repeat that.”
It's funny how consciousness works. During my first law school summer, I interned at the District Attorney's office in Brooklyn, New York – the busiest precinct in the country. I worked felonies. As a first-year student I wasn't allowed to argue in court, so I pushed paper for three months. To this day I can't recall how many mugshots skidded across the wood laminate desk in a crackling florescent corner of a county building. It must have been hundreds.
None of it felt real. I saw the faces: some white, yes, a smattering of Asians – but I couldn't ignore the disproportionate number of Latinos and especially blacks. On some level, I knew I was on the drug war's front lines. I knew what that meant. I knew what fate awaited the faces. They would go in and out of the system endlessly – brutalized in prison, harassed on the streets. In and out. Some were violent men I didn't want on the streets, but an uncomfortable number of them had come across my desk for only one reason: drugs.
Usually, drugs I used myself. Every evening, I whiled away the stress of putting people away by puffing on a joint or blunt. On weekends, I dropped tabs of LSD on my tongue and choked down the rotting taste of mushrooms. When I had had a little too much to drink, I occasionally took a small bump of coke, just to get back in the game. I never touched heroin, but I smoked opium from time to time. I was young and living in the city that never sleeps. Great times for a middle-class, white Harvard student.
On some level I knew I was a hypocrite, but consciousness is funny. I understood, academically, that the system I supported treated the people behind the faces on my desk very differently than it did me. But I still didn't get it.
A friend and I were passing the joint when I heard the knock on the screen door. I saw the cops from the top of the stairs, but I descended without fear. They were there about my garden, of course, but this was Berkeley, for Chrissakes. I had moved out to California after law school to fight for legalization – in a way, to undo the damage I'd done in Brooklyn – and fell in love with the freedoms here. I got my card, bought some seeds, and became entranced with the amazing experience of watching cannabis grow in my own backyard. How the plants adored the California sun! As one who knows his way around a law library, I made certain that I didn't exceed the plant count the city allowed. Technically, I wasn't in full compliance; I hadn't posted my doctor's recommendation at the garden, out of stubborn principle. Still, I stepped out onto the porch, my mind at ease.
There were four of them. The one on the left introduced himself as Officer Klebbe of the Berkeley PD Drug Task Force. This raised a red flag in the back of my mind; official Berkeley policy was to make enforcement of cannabis crimes the lowest priority – so why the hell did the city have a drug task force nosing around in my garden? It didn't make sense.
“One of your neighbors called us about your pot plants in the back,” Klebbe said. This didn't make sense either. Anticipating just this contingency, I had introduced myself to all of my immediate neighbors in advance of planting and explained to them exactly what I meant to do. The cannabis was strictly for my own consumption and for that of my friends. We all had cards. No sales. No problem. Each neighbor breezed away the matter, as if I had announced my intention to grow cabbage. After all, it was Berkeley.
“Do you know you're required to post documentation of your medical condition at the site of the garden for law enforcement?” Klebbe asked. Don't talk to cops, I heard my criminal law professor say in the back of my mind. I had seen some pretty dirty police work in Brooklyn, after all, and I understood the sentiment. But I knew I was otherwise in compliance with state law, so I shoved such warnings away. “Yes,” I replied.
“I need to see your documentation,” Klebbe said. No big deal. I pulled my 215 card out of my pocket and handed it over.
The officer looked at me askance. “What's this? You think this is good for anything? I need to see your written recommendation.” I vaguely recalled one of the provisions of California's supplementary medical marijuana law, the so-called SB420, which addresses this matter. Technically, my card was only good for extra convenience when entering dispensaries; SB420 provided for another kind of card which registered my condition with a county database which would be recognized by law enforcement as equally valid as my original written recommendation. But I didn't want to pay the extra money for the SB420 card, and I didn't want my name in any government database, so I didn't get it. And that's when it began to dawn on me that I had a problem.
“My recommendation,” I told the officers, “is upstairs.”
“Go get it,” ordered Klebbe.
That's when the red flags blew up into alarm bells. At that moment I, as the subject of a criminal investigation, still enjoyed some Fourth Amendment protections against search and seizure. I had met the officers on my porch and hadn't given them permission to enter my apartment. Under the US Constitution, they had to respect that. But if I obeyed the officer's order and went back upstairs, the Supreme Court has ruled that by doing so I would have expanded the area which the cops could have constitutionally searched, under the reasoning that I might take the opportunity to destroy evidence out of their sight. If I went back upstairs all four cops could follow me in, handcuff my friend who had come over to toke up, and ransack my place. “I can't do that,” I replied.
I could almost see the light bulb over his head. “I'm the good cop,” he said. “The bad cop is right up the block. Do I need to call him?” God, I thought. Did he actually say that?
“I can't tell you what to do,” I said. “But I can't do as you say.” I explained to him what I had learned in my constitutional law class about precisely this situation.
He was not amused. He spoke sharply into his walkie-talkie, and less than a minute later Sergeant Chu strode up my driveway. Chu was the bad cop, alright. He immediately adopted an aggressive tone, demanding to know what it was that I was trying to hide. Nothing, I told him. But constitutional rights are worthless if no one ever asserts them. I reiterated my knowledge of the law and explained that I would not take any action which would permit him to search my home.
“Well if you think you're so smart,” answered Sgt. Chu sharply, “how about this? You're under arrest.” He turned to one of his subalterns. “Cuff him.”
One of the officers – a Hispanic man whose name I didn't catch – put my hands behind my back. I felt the cold, heavy metal of the cuffs click over my wrists through my shock. As he led me to his squad car and gently shoved me into the back seat, the other four cops entered my apartment, cuffed my friend, and began searching the place.
Even as my shock gave way to anger, I began to understand how naÃ¯ve I'd been. California law, contrary to popular belief, never actually legalized medical marijuana – instead, the groundbreaking Compassionate Use Act of 1996, also known as Proposition 215, created what is known as an “affirmative defense” which allows defendants to plead their innocence in court on the basis of their medical condition. It did not, as I discovered that day, protect any patient from arrest.
The cop who cuffed me sat silently in the front seat of the squad car. Between us, standing erect in the center console, was a terrifying automatic rifle – an obvious attempt to intimidate me. It worked. Still, my mind continued to connect the dots: the Fourth Amendment, so ruled the Supreme Court, did not apply in the cases of searches incident to lawful arrest. My arrest was lawful, despite my compliance with Prop 215; all they had to do was cuff me and my whole apartment was theirs. I'm still not sure what they were looking for – a meth lab, perhaps, or a butane extraction operation – but one fact began to be abundantly clear: they had decided to search my place before they ever knocked on my door, and all my attempts to shield myself with the constitution were futile. I, of all people, should have known.
After what felt like hours, the cops came back down. Klebbe, holding my doctor's note and shaking his head, spoke quietly to Sgt. Chu. Chu looked dumbfounded. He gestured to the cop guarding me, who let me out of the squad car and unlocked my cuffs.
Chu was obviously annoyed. “I don't get it,” he said, holding my recommendation in hand. “You're in compliance here. All you had to do was show us this note. Why did you have to waste my officers' time like this?”
“I told you,” I answered evenly. “I never give away my rights.”
He got positively pissy. “Well did you think about what the property owner would say about what you're doing here? I wonder what they would think if they knew what you were doing in their backyard.” I kept a stone face and said nothing; but inwardly I smiled. My landlady was the first person whom I asked for permission. She was looking forward to the harvest to help with her arthritis. The joke, I thought to myself as I watched them drive away, is on you.
My experience was what is known as a “custodial arrest,” meaning that no charges were filed, I was never taken downtown, and the cops didn't have to fill out any paperwork. Sgt. Chu ultimately had only two reasons for ordering it: to humiliate me, and to trigger a court ruling giving him permission to search my place. I knew this quite well, and for days afterward, I seethed. By what right did they do this? What has happened to our country? Of course I knew the answer: the drug war.
The faces began to return to my mind, fresh as the days I first saw them. Their experiences, I began to realize, had been much worse. No case ever came to my desk unless the matter had escalated far, far above what I had gone through: charges had to be filed, nights had to be spent in jail, sometimes weeks had to pass before the arraignment. And I worked only felonies; I never even saw the misdemeanors, the petty citations. For every face I did see, flattened in black and white across cheap government paper, there had been dozens who had been charged with less serious offenses. And for every resident charged, there were countless more who had endured a custodial arrest like mine. How many, I couldn't say.
And yet – who am I kidding? – even these low-level humiliations aren't really comparable. In the end, I was still a middle-class, white man in Berkeley, California. Any one of the hundreds of thousands of NYC residents stopped and frisked by the cops I used to work with would have been treated worse. God forbid that this interaction of mine would have occurred in my former home city, or that I had been caught walking the street while black.
My labors, putting people away who were just like me but for the color of their skin, began to hit home.
Sadly, the racism I saw on full display in Brooklyn reared its ugly head even in Berkeley. The disgusting coda to my ordeal came when my landlady called a week after my arrest and explained that she was revoking her permission for me to grow the plants. I couldn't understand why; even Sgt. Chu himself had admitted that I had broken no laws.
When I finally discovered the reason a few days later, my disgust peaked. Chu, unwilling to let the inconvenience of his squad go unretaliated, called not my landlady but her 84-year old mother to tell her a bigoted lie: if she didn't have my plants removed right away, Chu explained, then black gang members from Oakland would come onto her property to steal my plants and shoot anyone who tried to resist. And if that happened, Chu assured the bewildered old woman, she would be held responsible and her property – including the building where I lived – would be seized.
I was shocked. The story was not only blatantly racist; it had no legal basis whatsoever. I told her so, but she wouldn't listen. A lawyer friend, she said, had confirmed the story. Where, I demanded to know, did her friend go to school? I graduated from Harvard Law School, I shouted in my arrogance. I pleaded with her to listen to me.
But she would have none of it. “I simply can't believe,” she told me, “that a cop would lie.”
I appreciate Sergeant Chu for what he did. I don't condone his bigotry or his limited, angry worldview, but nonetheless I now realize he gave me a wonderful gift.
With all due respect to my friend in the cafÃ© – no, I was not treated like a black man in America. That would have been worse. But the point is well taken anyway, because now I finally understand what all of my education, all the human faces and bloodless rap sheets of my brief prosecuting career could never teach me.
I finally get it.
So, Sgt. Chu and the other members of Berkeley's Drug Task Force – if you're reading this, thank you. And I mean that sincerely. You showed me a glimpse of what it's like – what it's really like – to be a marginalized, second-class citizen in the land of the free. You have re-energized my activism against the cruelly disastrous drug war in a way no textbook ever could. You have given me a new focus to my life – to work tirelessly and ceaselessly until you, and every other cop like you, is unemployed. Until there is no longer any place for you in our society.
In other words, you expanded my consciousness more fully, more completely, and more permanently than any drug ever could.