Calaveras Sheriff Brazenly Engages in Identity Theft to Entrap Medical Marijuana Provider
June 11th, 2010Posted by Kris Hermes
Stooping to a new low, local law enforcement in California has resorted to identity theft in order to entrap, arrest and prosecute law-abiding medical marijuana providers. The Calaveras County Sheriff’s Department has admitted to using the physician’s recommendation and identity of legal medical marijuana patient Robert Shaffer in order to entrap and arrest Jay Smith, operator of the local “K Care Alternative Collective” dispensary. The Sheriff’s Department was in possession of Shaffer’s documentation as a result of an unrelated arrest.
Despite complying with state law by refusing to sell Deputy Sheriff Steve Avila any medical marijuana before verifying the recommendation that he fraudulently used, Smith is still being prosecuted for felony marijuana sales and transportation. Surprisingly, at a recent hearing, Calaveras County Superior Court Judge Douglas Mewhinney overlooked Smith’s compliance with the law and said there was sufficient evidence for the case to proceed to trial.
Shaffer’s physician, Dr. Philip A. Denney of Carmichael, verified that Shaffer was indeed a patient when K Care contacted Dr. Denney’s office after Deputy Avila deceptively used Shaffer’s valid medical marijuana recommendation. Dr. Denney, upset that his patient, Robert Shaffer, did not authorize such use of his medical records, told The Record that the investigation against Smith “smacks of entrapment and sleaziness.”
Dr. Philip Denney: The prosecution of Smith “smacks of entrapment and sleaziness.”
Calaveras Sheriff Dennis Downum defended the actions of Deputy Avila, but seemed confused about the letter of the law. In an appearance before the Calaveras Board of Supervisors, Sheriff Downum claimed erroneously that, “to provide medical marijuana to someone, there has to be a caregiver relationship.” In fact, if Sheriff Downum had brushed up on the law, he would have realized that for Smith to be in compliance with state law, he must operate as a collective or cooperative, not as a “caregiver.”
While Sheriff Downum has no excuse to be ignorant of the law he’s upheld to enforce, Calaveras District Attorney Jeff Tuttle has no excuse to falsely prosecute Smith based on the same flawed interpretation of state law. In an interview with the Calaveras Enterprise, Tuttle echoed Sheriff Downum and said that his “understanding of the law is that…you have to be a primary caregiver to provide [patients] with marijuana.”
In response to accusations of impropriety, District Attorney Tuttle said:
Law enforcement officers and investigations are allowed to do many things that as citizens we would be penalized criminally for, but the reason they are is that they are doing it as part of an investigation. They can mislead people, they can lie they can try to trick people.
Smith’s attorney, Ean Vizzi, called Tuttle’s assertions “absolutely incorrect,” not knowing whether Tuttle was just “mistaken or [if] he’s purposefully ignoring the law.”
Sheriff Downum and Distriact Attorney Tuttle should not be let off the hook so easily. At best, they have seriously misinterpreted California’s medical marijuana law, and at worst the Sheriff could be responsible for “investigatorial misconduct” against Smith and Shaffer. If it’s determined that the Sheriff’s Department has violated any ethical or legal standards by assuming Shaffer’s identity to entrap Smith, the case against Smith should be promptly dismissed and Sheriff Downum should have to face the legal consequences.
June 11th, 2010 at 6:59 pm
That is some story!! Has the Atorney Genral steped in ? I have never herd before such slezzyness!!!! Not OK
June 11th, 2010 at 9:38 pm
Once again it’s Dennis Downum and his bads of misfits,. It should be noted that when this issue was brought by several people at the local Sheriff election debate, where the honorable Douglas V. Mewhinney (judge calaveras county superior court), was acting as moderator, the good judge saw fit (during a televised event) to announce, the following: “Ladies and Gentlemen, this is a case involving a collective who selling marijuana on Craigs list, and Mr. Smith, was arrested for sales of marijuana and other felony charges” Firstly, not only was the statement untrue, but there had never been any allegations from anyone (including Deputy Avila, any other investigating officer or the District Attorney’s office, that Smith or anyone else from the collective, had been advertising or selling anything on craigs list. Secondly this was from a sitting Superior Court Judge, regardiing a pending felony case. Furthermore, this is a case where Judge Mewhinney, HAD BEEN DISQUALIFIED DUE TO HIS EXTREME BIAS AND PREJUDICE!!! It should further be noted that District Attorney Tuttle died shortly after his interview with the Calaveras Enterprise. However, the Ast. DA who has be assigned the case since day one, “Seth Mathews” position mirrors that of Tuttle, and these guy so far just refuse to dismiss this bogus case. Furthermore, Sheriff Downum, the District Attorney and so far the Board of Supervisors have failed and refused to take any action against Deputy Avila, Sheriff Downum. However, ongoing and agressive effort are being made to cover up and justify the criminal misconduct of Deputy Avila and others. In fact, Sheriff Downum has stated his intent to continue to use and encourage this type of conduct, by his Deputies. Deputy Avila has further once again, taken the original medical recommendations of Mr. Smith and another collective patient, along with hundreds of current and past medical records relatiing to Smith’s current and past medical condition, and distributed that private and confidential information, to other county agencies. If is further believed that the original medical recommendations taken by Downum’s crew, the Collective members are currently being used and other identies stolen, by Avila any other Deputies with the blessiing of Downum, fortheir so called “Ruse”. Letter of support and outrage would be greatly appreciated, sent to acting District Attorney Barbara Yuke and Superior Court Judge John E. Martin and the Calaveas County Board of Supervisors, at 891 Mountain Ranch Rd. San Andreas, CA. 95249
June 12th, 2010 at 3:21 pm
When will this maddness end? Why are we still fighting over Cannabis? Lets live in Peace with one another just as God commands! This method of enforcement does more harm than good… is that the point? To play “bad cop, bad cop”?
June 14th, 2010 at 8:47 am
Excellent article, but there were a couple of significant errors-
The case was heard by Judge John Martin, not Mewhinney (Mewhinney is a known anti-pot crusader, and anyone busted in our county on marijuana charges should get him disqualified ASAFP.)
Also, District Attorney Jeff Tuttle died in April and is therefore in no condition to prosecute this case. Jay Smith’s case is being prosecuted by Deputy DA Seth Matthews.
Otherwise- great article, and MUCH LOVE for covering this issue.
Tom Liberty
Calaveras Patient Resources
June 18th, 2010 at 10:22 am
When does this go to prelim? Sounds like a good story for the Enterprise to follow closely …
June 20th, 2010 at 5:04 pm
UPDATE!
Grand jury will tackle identity theft complaint
By Joel Metzger
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Posted: Friday, June 18, 2010 10:27 AM CDT
After filing numerous complaints with Calaveras County about a member of the Sheriff’s Office, Robert Shaffer said he learned Monday that the Calaveras County grand jury would hear his case.
Shaffer, 44, Ione, claims that his identity was stolen and medical records illegally made public by Calaveras County Sheriff’s Deputy Steve Avila as part of a sting operation executed in January.
Avila posed as Shaffer, who had been arrested for selling marijuana and had his doctor’s recommendation seized as evidence. Avila used Shaffer’s legitimate medical recommendation, after altering the birth date, in order to appear to be a legitimate patient.
The sting operation resulted in the arrest of San Andreas resident Jay Smith, who is now embroiled in a court fight over whether he was operating a legitimate collective.
Shaffer cried foul when he was made aware that his identity had been used by Avila, which led to his campaign to have Avila removed from the Sheriff’s Office. A petition for Avila’s removal containing hundreds of signatures was presented to the Calaveras County Board of Supervisors last week.
“It (the complaint) states that one of the Sheriff’s Office employees, Avila, used my identity without my permission or authorization,” Shaffer said.
Shaffer said that he was called by Sheriff’s Detective Chris Villegas Monday and informed that an internal investigation was being conducted, which was initiated by the complaints from Shaffer.
“He said he received a packet from the grand jury requesting him to investigate the complaint,” Shaffer said. “He wanted to gather some more information and wanted to speak with me.”
The two have yet to meet and Shaffer said Villegas has not contacted him since Wednesday.
When Sheriff’s Capt. Jim Macedo was contacted, he said he would not comment on grand jury investigations. He did say that an internal investigation is in process that is related to the complaints by Shaffer. He would not specify whether Avila was being investigated, stating, “It’s not appropriate.”
The grand jury investigation was announced to the Board of Supervisors Tuesday during public comment by Mountain Ranch resident Tom Liberty of Calaveras Patient Resources.
Liberty said that while he welcomes the internal affairs investigation within the Sheriff’s Office, he is concerned that Villegas is the one performing it.
“(Detective) Villegas is a known friend of Deputy Avila,” Liberty said. “They keep in contact on Facebook,” adding that after the investigation was launched, the two men terminated their friendship on the social networking site.
“There seems to be a huge conflict of interest here,” Liberty said.
He went on to say that Calaveras County Sheriff Dennis Downum stated publicly before the board that there was nothing wrong with what Avila had done.
“I think that the sheriff sets the tone for the whole department,” Liberty said. “If the sheriff has expressed this sentiment publicly, than there is nothing wrong with what Avila has done, I think you can reasonably conclude that that’s the message all the deputies have gotten. How can you properly investigate something that you have already decided is OK?”
According to Shaffer, the Sheriff’s Office isn’t the only authority that believes Avila’s actions were “OK.”
Shaffer said he presented a copy of his complaint to the District Attorney’s Office, which was given to investigator Mike Whitney, who has since spoken with Shaffer several times.
The complaint was referred to the Attorney General’s Office because the issue was within the Sheriff’s Office and may present a conflict of interest if investigated locally.
“Whitney said he heard back from the AG that there was no crime based on the information we gave them,” Shaffer said. “That’s either not true or it’s not the full story. I’m waiting to see what the grand jury comes back with.”
Since grand jury investigations are secret, the Enterprise could not independently confirm the claims made by Shaffer and Liberty.
While Downum did not respond to several messages for comment, he had earlier defended the actions of his law enforcement officer as completely within the law when viewed in the context of a ruse. He also stressed that Avila had changed the birth date on Shaffer’s recommendation, effectively changing the identity.
“It is very appropriate for people to use a ruse,” Downum said. “It can never cross the line where we are breaking the law to go arrest somebody for breaking the law.”
Contact Joel Metzger at jmetzger@calaverasenterprise.com.
Comment (18 comment(s))
Ken Carter wrote on Jun 18, 2010 11:28 AM:
” Simply Outrageous! This was not just an identity theft issue. First, evidence was seized. Then, instead of booking that evidence,(as required) it was copied and altered by Avila and his co-conspirator Deputy Baker. When the valid Doctor’s recommendation was altered, both Shaffer and Doctor Denney’s signatures were forged to the altered Doctor’s prescription. It was only then that Shaffer’s identity was actually stolen. Furthermore, private, confidential and privileged medical information and records were illegally accessed and distributed by Avila to unauthorized persons violating both State and Federal law. As for changing Shaffer’s year of birth, therefore protecting his identity? These untrained rogue idiots were so proud of their 1 oz marijuna arrest of Shaffer, they posted a news release listing the circumstances of the arrest including Shaffer’s name and home address on the net. Better wake up folks. If you don’t find this offensive and outrageous conduct and demand action, you may very well be next, resulting in no limits placed on your rights to privacy including your medical records, and your identity, whenever someone with a badge decides he wants to steal it. “
June 27th, 2010 at 1:32 pm
I’m curious, did Avila also use a fake CA DL to verify that the recommendation was “his” during the ruse?
July 4th, 2010 at 11:05 am
Perhaps what you have not been told about the case is that Jay Smith was not in compliance with the law and it is folks like him that make it bad for everyone trying to operate a legitimate dispensary. “Delivery service only” is not in compliance with the law or the county ordinance. He did not have a facility in the required zoning areas, he had no business license and he did not have the required county conditional use permit. He was just like any other drug dealer in the county trying to make big bucks and it is costing our financially strapped county precious dollars to prosecute another drug dealer.
July 6th, 2010 at 7:22 pm
Kaitlyn… Yes he did, then at the PX hearing the DA said they lost the recording of the sting proving he showed roberts ID!!!!
July 12th, 2010 at 9:10 am
absolutely unnaceptable. this is no “ruse” what it is however is far more concerning to me. I completely agree with the Ken Carter post and also feel that Deputy Avia should at the very least face federal prosecution for his crimes and the entire Sherrifs department be subject to a COMPLETE audit and investigation. if this had happened to me I would have had an ARMY of pro-bono attorneys and ACLU lawyers on these guys like white on rice. I would urge that the physician file charges or at least a complaint against this criminal organization…… uh Sherrif’s department.
July 14th, 2010 at 10:24 am
Suzanne Petersen,
How wrong you are! This collective was 100% in compliance with State and local law! Do better research before you go blabbing your dirty laundry! To say the least; you support corrupt cops, stealing Identitys, and police misconduct!!!! There is a local business license regesterd with Calaveras, there is a valid sales permit, EIN #, articles of incorportation. and $27,000 of debt. (to make sure it was in compliance)
August 4th, 2010 at 8:26 pm
I wont even go into a dispensary In LA a any more .
when the DEA and cops raid these shops , they take everything.
medical information not intended for the public
Then they watch everyone coming and going.
So much for safe and affordable access
City officials opposing cannabis dont want to recognize prop 215
wasting tax dollars on something the people voted for
These “moral soldiers” are willing to break any rules to achieve their goal
When Oakland opens its factories It will blow smoke right in the DEA s face!!!
They dont raid politically connected dispensary’s
JURY NULLIFICATION !!
August 20th, 2010 at 10:35 am
I sat in the court room this morning with Jay Smith as did several others and to be honest, I believe that the judge will be dismissing the case at the next court date. I also believe that this case will be used as an example for others. Cheers to Jay Smith and his educated and well spoken representation. (I’m very sorry I can’t remember his name) Basically the D.A. is saying that there should have been a cooling off period before the exchange should have taken place. What??? (They are like a dog with a bone) Jay’s Lawyer said basically that if he wants to change the law it has nothing to do with this case. In fact Jay made the undercover officer wait over 2 weeks while he verified his script with the doctor and then when he met with him Jay made him read and sign the collective agreement which then made him a member. He then made the exchange. It was actually funny to see the desperation from the D.A. They have nothing else. They are just trying to cover their butts. I don’t think that the Sheriff’s department as a whole is not to blame. There are exceptional officers in our community. These young cops need to be more accountable and held to the highest standard or get a new career. As far as the old farts still hanging on to their old style of backroom justice at any cost. It’s time to retire!!!