LEAD STORY Knock, Knock, You're Busted How Portland cops push the limits of the law to crack down on pot growers. BY MAUREEN O'HAGAN mohagan@wweek.com

Last year, Oregon voters approved medical marijuana legislation allowing people with "debilitating" illnesses to use and grow up to seven pot plants.   Sgt. James Hudson's quick thinking cut short Steven Dons' attack. He retired from the force after the traumatic event.   Over the past few years, forfeitures have decreased for two reasons. The cops have grown more conservative in what they seize, and drug offenders are renting instead of owning homes.   Officer Kim Keist testified more than a year ago that the task force had conducted about 1,500 knock and talks.   "If all of the judges knew all of the facts of all of these cases, they would sit back in their chairs and say, 'Something smells funny here.'" --lawyer Michelle Burrows   Deputy District Attorney Mark McDonnell says he's not worried about the latest legal challenge to the Marijuana Task Force: "I expect we'll get convictions in all these cases."   American Agriculture already sued the Portland Police once for aggressive surveillance tactics, settling the case in May 1997.   Police say as few as 10 plants, harvested throughout the year, can be worth as much as $30,000 to $40,000.   When the police come to your door without a warrant, you don't have to let them in. But they are not legally required to tell you that you may refuse their request, either.   Even Judge Marcus, the jurist who is scheduled to rule on the issue Tuesday, revealed in court that he once bought something from American Agriculture   Defense lawyer Pat Birmingham says police use "bluffing and intimidation" in their "consent" searches.   American Agriculture may file a civil lawsuit against the police.   After he or she gathers evidence of a crime, it usually takes an officer two to four hours to get a search warrant. A knock and talk is much more efficient.   A handbook used by the Marijuana Task Force says "knock and talks increase arrests, [and] the agency also realizes funds from asset seizure with only minimal investigative expense."   After downloading your phone number from the trap and trace, police usually wait three or four months to knock on your door. That's how long it takes marijuana seedlings to bud.   "The Portland Police Bureau...will go up to a person's front door and not take no for an answer." --defense lawyer Pat Birmingham   Although police initially seize ownership of pot growers' homes, that doesn't mean a grower has to move. Normally, growers enter into plea bargains and forfeit just a portion of the equity in their home.   Michelle Burrows, who specializes in defending drug suspects whose property is seized, has trained other lawyers on the Marijuana Task Force's techniques.

Read the transcript of a taped conversation, in which a member of the Marijauna Task Force unknowingly revealed their techniques. Sniff and Grab: how the police are getting around those pesky warrants. Want to see a pot grower shake in his Birkenstocks? It's as easy as knocking on his front door. That's because over the last few years, a simple knock-knock-knock has come to be recognized as the official calling card of the Portland Police Bureau's Marijuana Task Force, which has busted pot growers at the astonishing rate of almost one every working day. While there's no real way to measure whether the task force has dampened Portland's ganja habit, the group has taken truckloads of pot off the street. In four years, officers have hauled in about 30,000 marijuana plants and arrested at least 750 growers. They've seized hundreds of thousands in assets under laws that allow authorities to confiscate a drug dealer's ill-gotten gains. That the task force has accomplished this with just six officers makes the record even more impressive--and more curious to those who question its methods. Other than the tragic 1998 marijuana bust of Steven Dons, which left one police officer dead and two others wounded, the task force has been virtually unstoppable. Time and time again, defense lawyers have argued that the task-force tactics are coercive and invade of citizens' privacy--a belief that even some police officers and prosecutors have privately told WW they share. Butt those arguments haven't been proven in the courtroom. In the ongoing cat-and-mouse game between growers and the law, the law has clearly been winning. If the pot growers have their way, however, the task force could soon lose one of its most potent secret weapons. On March 16 Multnomah County Circuit Judge Michael Marcus will make a ruling on motions filed by 14 criminal-defense lawyers who claim that the task force has been illegally gathering evidence against pot suspects. The arguments date back to last summer, when a marijuana grower discovered that for three years, the task force had been surreptitiously monitoring phone calls to a store that sells indoor gardening supplies and using that information to target suspects. To pot growers, the discovery was like a Holy Grail: If Judge Marcus decides in favor of the defense lawyers' motions, current charges against some growers could eventually be dismissed. At this point, it's difficult to predict what will happen in the courtroom. But no matter what Judge Marcus rules, some say the discovery of the phone monitoring is just one more bit of evidence in a mounting case against the task force. That's not to say this is a bunch of rogue cops acting outside of the law. But when looked at as a whole--from the secret phone monitoring to the scores of convictions--the task forces starts bearing a resemblance to Big Brother. "You have to do a lot of these cases before you start getting that funny feeling," says Michelle Burrows, a defense lawyer. "If all of the judges knew all of the facts of all of these cases, they would sit back in their chairs and say, 'Something smells funny here.'" That the task force is going after marijuana--which this state's voters have approved as a medical treatment and decriminalized in small quantities--makes the smell that much more sour. For at least 20 years, pot connoisseurs nationwide have believed that some of the best bud is grown in Oregon. Years ago, when marijuana cultivation was strictly an outdoor activity, it made perfect sense. With Oregon's moist climate and abundant federal forest land on which to grow, the illegal crops thrived. In the last decade or so, that practice became too risky: Not only were the crops easy prey for thieves, but police began using airplanes, which made the once-hidden caches easier to spot. As a result, pot farming moved indoors. Now illicit gardeners use expensive halide lights and hydroponic equipment, which allows the plants to grow without soil. Light, heat and nutrients can be carefully controlled and replicated, whether you're in Astoria or Antarctica. What's more, a new crop can be harvested every three or four months instead of once a year. Still, whether it's because of tradition, this state's relatively lax marijuana laws or some sort of collective unconscious that gives us greener thumbs, Oregonians continue to have a reputation as primo pot growers. Of course, growing quantities of marijuana is still against the law. So as the marijuana growers changed their methods, so did the authorities. In 1995, the Portland Police Bureau formed a specialized Marijuana Task Force and came up with new ways to target the indoor crops. The task force was the brainchild of Sgt. James Hudson, then a 17-year veteran of the bureau who was assigned to the Drug and Vice Division. Hudson (nicknamed "Gator" for his alma mater, Florida State University) believes that marijuana is as dangerous as other drugs, and he says it's also more prevalent. With Chief Charles Moose's stamp of approval and a federal grant, Hudson recruited three other veteran Drug and Vice Division officers--Kim Keist, Nate Shropshire and Brian Schmautz--who have formed the core of the task force ever since. What's notable about the group is what they're not--stereotypical jug-head types who'd rather tackle you than talk. Instead, they're hard-working, relatively laid back and, most of all, clever. Some of the stoners they arrest even call their captors nice. The group's superiors call them effective. In its first year, the task force made 302 arrests, well over one every working day. That translates into a per officer arrest rate three times higher than the rest of the Drug and Vice Division. The Marijuana Task Force says the area was ripe for a crackdown. "Growers in this region present a target rich environment," the most recent Drug and Vice Division annual report says, "and are there for the taking as fast as the task force can get to them." Not only is Portland a "target rich environment," but it boasts comparatively rich targets. The task force takes advantage of civil forfeiture laws, which allow authorities to seize any cash and property that can be tied to drug dealing. The tool is extra potent against pot growers. "More than any other group we deal with on drug offenses, people that grow marijuana are otherwise fairly middle class," says Mark McDonnell, who heads one of two drug units in the district attorney's office. "A much greater percentage hold down a job, own a home." In the task force's first year of existence, marijuana-related forfeitures more than covered the officers' salaries, something the rest of the Drug and Vice Division couldn't even imagine. Last year, the task force seized 22 houses from accused pot growers, compared to the two houses the rest of the Drug and Vice Division seized from other types of drug offenders. The task force officers are good at what they do, but there's something more to their success than skill and hard work. For several years, they've been able to keep one of their tools--the stealth device that leads them to growers in the first place--a closely guarded secret. A secret, that is, until a pot grower named Neil Hauser came along. When the Oregon State Police came knocking on Hauser's door last spring, he just couldn't figure it out. There's no question the Bend resident was growing 83 marijuana plants--that much Hauser concedes. But what, he wondered, gave him away? Hauser isn't the only guy who has asked this question. "For a long time, a lot of us were in a puzzlement," says defense lawyer Pat Birmingham. "How were they selecting our clients?" With a little investigation of his own, Hauser found the answer, something top defense lawyers had been trying to do for several years. All it took was some acting--a little game of cops and stoners, if you will. Only this time, the tables were turned. In mid-June, Hauser called the Portland Police Bureau and got task-force member Shropshire on the line. What happened next is a matter of debate. Shropshire says that Hauser claimed to be a Bend police officer; Hauser denies telling that lie, although he did drop some carefully calculated suggestions to that effect. In any case, with a few open-ended questions, Hauser wheedled the whole story out of Shropshire. The cop told Hauser that the task force had used a device known as a "trap and trace" that was secretly put on the phone of American Agriculture, a business on Southeast 92nd Avenue and Stark Street that sells lighting and growing equipment. (For a transcript of the conversation between Shropshire and Hauser, visit www.wweek.com.) The device is, in essence, like Caller ID, except the police, not American Agriculture, get the numbers of every customer who calls the business. The cops then use the customers' phone numbers to learn their addresses--and, more importantly, to develop a list of suspects. "For the most part," Shropshire told Hauser, "we start all our investigations that way." The idea was ingenious: Hit the growers where they shop. The police won't say whether they're still using the device. Hauser knew he had discovered something important. He had called American Agriculture, and the task force must have tipped off the police in Bend. As it happens, Hauser's case was dismissed because of a technicality. More important, an ex-lawyer named Larry Olstad heard his story and began spreading the word about trap and trace. When the folks at American Agriculture found out their phone was, in essence, tapped, they weren't very happy. Word is they're considering a civil lawsuit, but the owners of the company did not return a call from WW. It's clear, however, that they have a gripe. After all, none of their products are illegal. And their customers aren't limited to pot growers. In fact, even Judge Marcus, the jurist who is scheduled to rule on the issue Tuesday, revealed in court that he once bought something from the company, a blue plastic barrel used for training his dogs. The reaction from the defense bar was swift. "The difference between what these guys are doing and a legitimate police investigation is they have no specific, probable-cause belief that a crime is being committed," says defense lawyer Burrows. (Probable cause is an important legal safeguard that protects citizens from unfair police intrusion.) Working from initial research done by Olstad, a number of lawyers joined together to challenge the legality of the use of the trap and trace device. Last month, during a day-long hearing in Marcus' courtroom, the city and the DA's office argued that the police had a court order to use the device. Defense lawyers countered that they've used it too broadly and for too long. The statute regulating trap and trace, they pointed out, is very narrowly construed. It requires police to establish probable cause that a crime is being committed and obtain a court order, which is only good for 30 days. The idea is to put constraints on police so they don't use it like a "gill net," says Olstad. But that's exactly what the task force did, according to a number of defense lawyers. First, they point out, a phone call to a legitimate business is skimpy evidence on which to open an investigation. Defense lawyer Bob Thuemmel calls the tactic Orwellian. "The use of the device appears to be geared to all individuals who call American Agriculture, whether it is a Dr. Feelgood type looking for the latest in marijuana technology or old Mrs. Peabody down the street whose dahlias need something more in the way of spring fertilizer," he wrote in court papers. It's hard to tell exactly how many of the people on which the task force opens investigations turn out to be law abiding. Officer Keist has testified that about half of the investigations turn up nothing. Defense lawyers have also hammered on the issue of the 30-day limit. Although authorities aren't talking, it appears that they applied for an extension of the court order every month. Even so, the use of the device for three years seems to violate the spirit, if not the letter, of the law. Judge Marcus will decide on Tuesday whether the defense is entitled to more information on the use of the device. From there, the lawyers may then argue that charges against their clients should be dismissed. Their argument is based on a legal theory known as the "fruit of the poison tree": If the use of the device is found to be illegal, any evidence found while using it is tainted and should be thrown out. Whether or not they're successful in this case, defense lawyers say the use of trap and trace is part and parcel of a larger method of operation that goes right up to the edge of what is lawful. "I think what's sort of startling is the way that the courts analyze these legal doctrines," says Margee Paris, a criminal law professor at University of Oregon. "They break it down into these little pieces, and at the end they find it was all legal. But when you look at the whole picture, it becomes very disturbing." The defense lawyers say that the only way to truly understand what they are arguing is to look at the way the task force operates. Every month, officers downloaded the phone numbers of American Agriculture customers from the trap and trace device and used them to develop a list of suspect addresses. Police say they try to screen out law-abiding citizens by first checking electricity records for unusual power usage. Critics feel this, too, is an invasion of privacy. Normally, power companies consider these records so private that they will turn them over only to the subscriber. Moreover, a high electricity bill isn't evidence of a crime. After all, you could be using American Agriculture products to grow hydroponic tomatoes. After that initial screen comes the "knock and talk." Although the technique didn't get widespread publicity until the 1998 Steven Dons fiasco, in which Hudson and Keist were wounded and Officer Colleen Waibel was killed, Portland officers have been using it since 1985. Well over half the time, when a smooth-talking task-force officer (like Schmautz, who studied acting) knocks on a door, he's allowed inside. Even marijuana growers usually agree to these "consent searches." In most cases, finding a crop of the green stuff is as simple as that--no time-consuming search warrant necessary. Police say that's because even crooks feel guilty. "People who do things that are wrong have a conscience," says Capt. James Ferraris, who heads the Drug and Vice Division. Others disagree that guilt is the motivating factor. "The Portland Police Bureau...will go up to a person's front door and not take no for an answer," says defense lawyer Birmingham. In light of the evidence, the complaint may sound hollow. Most of the people investigated, after all, are guilty of a crime. When law abiding citizens are swept into their net, though, things look different. Just ask Denise and Michael Harrington. The Laurelhurst couple runs a well-regarded company that teaches people to communicate better. One of their larger clients is Nike, which has hired them to work with Ken Griffey Jr. and Tiger Woods. A few years ago, they even conducted a seminar for the Portland Police Bureau. The Harringtons live in a neighborhood of perfectly manicured lawns, with Volvos and baby strollers outside each door. A year or so ago, the couple was surprised to open their door to two plainclothes police officers from the Marijuana Task Force. "They said they had a complaint we were growing marijuana," Denise Harrington recalls. "We just about died laughing." Even though the officers had badges, they flashed them quickly, and then asked to come in. "They could be anybody," she says. From watching cop shows on TV, she knew she didn't have to let them in. So she and her husband said no. "They said if people don't let them come in, they take it to the next level," Denise says. "They said, 'We'll continue investigating until we find out what's going on.' They got a little harder in the way they were talking to us." Soon three more officers showed up; one was in the neighbor's driveway peering into the Harrington's yard. "They're hanging around, they're embarrassing you in your neighborhood," Denise says. "It's escalating. It's so stressful that they really intimidate you into making decisions to give up your rights." After almost two hours, the Harringtons let the police inside. The officers conducted a thorough search but found nothing. "It was a picture, to me, that you are guilty until proven innocent in their minds," Michael Harrington says. The Harringtons, who had only lived in their house for a few months at the time, have no idea why police showed up. They have never called American Agriculture, but it's possible that a previous owner did. Police won't say what led them there, but the investigation is now closed. Aside from the use of the trap and trace device, the task force's techniques have thus far been upheld by the courts, despite the arguments of defense lawyers. "I heard a judge compare the Marijuana Task Force to a tax consultant," recalls Deputy DA McDonnell. "If you hire a tax consultant, he's going to do everything he can legally to get you all your deductions. I think the citizens expect the police to do everything they can within the bounds of the law to apprehend criminals." But their zealousness has raised questions, even among cops and prosecutors. While they aren't criticizing their colleagues, some have privately told WW they have mixed feelings about aggressive marijuana prosecution. Though the drug is illegal, they consider it far less problematic than other substances, even alcohol. In addition, they say the task force works very hard, but it doesn't send many people to prison. That's because lawmakers, voters and judges in this state have ranked marijuana growing a lesser concern than other crimes. Moreover, according to the DA's office, most pot growers they prosecute are first-time offenders. And most first-time growers only get probation, plus some jail time or a work release program. There's also the memory of Colleen Waibel. "I think there's a new look at these things," says police union vice president Tom Mack. "We're getting killed over things that judges are sentencing people to less than six months for." Another officer puts it more bluntly. "I don't want any more policewomen killed because someone is smoking a joint," he says. In truth, questions about the task force are more ones of policy and priorities than of law. For now, however, it's a policy the Police Bureau has no plans to change, according to Drug and Vice Division head Ferraris. "They have been very successful," he says. "At this point it's a viable unit of the Drug and Vice Division, and I certainly don't see it being dissolved or abolished in the near future." The question is: What are citizens willing to sacrifice in order to fight the war on drugs? "Police depend on people's respect for law enforcement to get their jobs done, and these cases abuse that respect," says Ed Jones, a public defender. "This is really a self-defeating program. What they're doing is encouraging people to not answer the door and not be respectful to the police. But that note probably won't come due until long after these cops are retired." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Willamette Week | originally published March 10, 1999