Reefer madness? Copter and SWAT team weeded out 2 plants on their property

Philip Cobbs likes gardening. You can tell from the neat perennial beds, the carefully trimmed yard, and from the fenced vegetable garden on the 39-acre tract in southeastern Albemarle that's been in his family since the 1860s.

In his greenhouse this spring he started the tomato plants, cantaloupes, and watermelons, as well as flowers, including asters and hollyhocks, that he sells at a roadside stand near his home. The harvest helps make ends meet since the 53-year-old quit his job three years ago as an instructional assistant with Charlottesville schools to take care of his 90-year-old mother, who was left blind and deaf following a stroke.

Cobbs says he was out spraying blueberry bushes along his driveway one late-July morning when he noticed a black helicopter hovering in the sky.

"I didn't think much about it," says Cobbs. "I went back to spraying. Then it was above me, circling. I thought maybe it was Donald Trump, so I got binoculars."

His house stands next door to his mother's, where he was born. That morning, in one of his many daily trips back and forth, he stepped out of his door to go help his mother get off the toilet, one of the tasks– along with feeding, washing, and dressing– that he assumed when he became her caretaker.

That's when five sport utility vehicles pulled into his driveway and discharged a squad of nearly a dozen men wearing flak jackets and carrying automatic weapons.

"The thing that was so frightening," remembers Cobbs, who served in the U.S. Navy for nine years, "is that I could hear the safeties coming off their rifles."

Green thumb

Even two months after that day, July 26, Cobbs says he has trouble sleeping as a result of the unexpected visit from law enforcement. As he stood, shirtless, in his yard, he recalls what could have been as many as 10 men yelling commands at him.

"They said, 'We spotted some marijuana plants on your property,'" says Cobbs.

Cobbs says the leader seemed to be conferring by radio with the helicopter pilot and directed the ground team to an overgrown area where an oak had fallen near his fire pit. There, the officers pulled out what they said were pot plants. Two of them.

"About this high," says Cobbs, putting his hand above his knee. He says he wasn't certain the plants were Cannabis sativa, but he figured the cops knew more about them than he did.

"They asked, 'What's in the greenhouse?' he recounts. "I said, 'You can look.'"

It quickly became clear that the little containers in which he'd started his tomatoes were not what the SWAT team had in mind. Cobbs recalls the leader saying the team was looking for a bigger find, and the beleaguered resident got the sense that the whole raid was a mistake. One other thing Cobbs, who is African-American, remembers.

"One of them said, 'You sure are tan.' I'm not sure what that means," says Cobbs, who wonders whether racial profiling played some role in the incident.

Cobbs says he identified himself as the landowner, and as he sat in the State Police car, he heard the helicopter pilot say on the radio he needed to refuel. The SWAT team departed after what he estimates was between 30 and 45 minutes.

"The whole time," he says, "Mom was on the potty."

Greenhouse effect

Cobbs proceeded to get his mother dressed, and then he took her to an adult day center by noon, a weekly ritual that allows him to buy groceries and run errands. He says his mind somehow pushed away the morning's incident.

"I was in shock," he explains.

But when he got home that Tuesday afternoon, he eyed the business card left behind by the SWAT team leader as well as the scorch marks in the yard left by the five SUVs that had idled throughout the bust.

"That's how I knew it had happened," says Cobbs, who notes that he began experiencing difficulty with sleeping, frequently waking up in the middle of the night drenched in a cold sweat.

"After that, I let my crop go because I was afraid to go outside," he says. "It made me question whether I wanted to have a small farm."

Cobbs dismantled the 12-by-5-foot greenhouse near his house, and he seems incredulous when a reporter asks why.

"I believe I was randomly profiled because of the greenhouse," he says. "The helicopter circled around, and it drew their attention.

"Do you understand?" he continues. "I feel like it would have been possible to be shot in that situation. I don't want to be put in that situation again. I don't want anyone else to be."

After a month without further menace from sky or land, Cobbs says he gradually stopped obsessing about the incident.

His peace of mind ended August 29. That's the day that an Albemarle County police officer showed up at his door with a summons. Cobbs was charged with misdemeanor possession of marijuana and was ordered to appear before a judge four days later.

SWAT terror

John Whitehead, founder of the Rutherford Institute, the civil liberties nonprofit that is representing Cobbs as he fights the criminal charge, remembers the 1960s when SWAT teams, which stands for Special Weapons and Tactics, were used sparingly– typically in hostage situations or during bank robberies when human life was in imminent danger.

That changed in the 1980s when the so-called War on Drugs "brought a dramatic and unsettling rise in the use of these paramilitary units," Whitehead writes in his 2008 book, The Change Manifesto. Today, Whitehead estimates, there are between 40,000 and 50,000 SWAT raids in this country every year.

"People have been killed in these raids," says Whitehead, mentioning the Tucson case in May in which two-tour Iraq War veteran Jose Guerena was the target of 71 shots after a SWAT team burst into his house.

"Why couldn't one officer come out with a search warrant?" Whitehead wonders of the Cobbs case, noting that except for a speeding ticket earlier this year, the former school employee has no recent history on the wrong side of the law.

"Why the SWAT team?" asks Whitehead."Why the show of force for a victimless crime? The outrage is putting citizens in harm's way with this sort of thing."

Whitehead says he routinely tells gun-owning Americans that if a SWAT team kicks in their door, they should get on the ground– and that their dog will probably be shot. That's what happened to the two dogs belonging to the mayor of a small Maryland town in 2008 when 32 pounds of pot were delivered to his front porch unbeknownst to him.

In response to a Freedom of Information Act request from the Hook (for which the newspaper was billed $104.46), Sergeant Darrell Byers reveals that Albemarle County Police have conducted 49 SWAT missions since 2000.

In 2008, Edgar Dawson was shot when police burst into his Crozet-area home in the middle of the night and he grabbed his gun. They arrested his son, Brandon, and Slade Woodson, who'd been on a rampage that included taking potshots at cars on I-64.

And in 1998, after clerk Osama Hassan had been gunned down at the Ivy Road Shell station, Albemarle police burst into the wrong address.

"We'd received information that the suspects were there," says Byers. "It was bad intel." He notes that no one was injured in the raid.

Charlottesville police had their own share of bad intel in 2001. They said they'd heard that Douglas Michael "Beefy" Brown (who five years later led police into a high-speed chase that killed an off-duty officer), had holed up in a Belmont house late that March.

"He'd broken into the Woodbrook gun shop, stolen guns, and was armed," recalls Lieutenant Gary Pleasants, who called in the SWAT team, which fired 15 rounds of tear gas and three stun grenades into 815 Nassau Street.

As it turned out, no one was inside during the seven-hour stand-off (except, reportedly, for a poodle and three other pets), but the residual tear gas temporarily rendered the house uninhabitable to humans, so the city relocated the residents to a local hotel.

"The tear gas was not meant for indoor use," says Pleasants. "We've corrected that."

Charlottesville and Albemarle police use a threat matrix to weigh the factors in deciding whether to call in a SWAT team, says city Police Chief Tim Longo. He cites the Coal Tower murders later in 2001 as an example of an event triggering the threat matrix.

"If it's a high-risk warrant service and there's a criminal history, or weapons or crimes of violence, if the score is above the threat matrix, we could use a SWAT team," says Longo. "It's my call."

Since 2006, that's happened 15 times, according to city police.

Although Charlottesville contributes officers to JADE– the Jefferson Area Drug Enforcement task force– as do Albemarle and UVA, the city normally isn't a hotbed of outdoor pot growing. If a report came in that someone had two pot plants in the backyard, would Longo send in a SWAT team?

"If that's all the info they have, I don't know it warrants it," says Longo. "It is a use of force. Sometimes in deploying a SWAT team, courts have called that an excessive use of force."

Business as usual?

Some law enforcers may not agree that a parade of police showing up at Cobbs' residence constituted a "raid." In fact, the man leading that day's charge, Virginia State Police agent Bradley McManaway, who was working with JADE, says what happened that day was pretty typical for the state's marijuana eradication program.

"They're not raids," specifies McManaway, referring a reporter to Senior Special Agent Keith Kincaid, who handles the pot program for this area's division of the State Police.

"I'm not going to discuss the details of how we find them," Kincaid says. "The success of the program is based on a shroud of secrecy."

He does reveal that police either receive a tip or spot the pot plants while flying around– even, allegedly, just a pair of marijuana plants.

Search warrants can be obtained, says Kincaid, but more typically they're not "if the individual is at home and we make contact and request to be allowed onto the property."

And what if a resident is too terrified by an advancing phalanx of armed police to say no?

"That's why we try to identify ourselves, and we try to have marked cars," says Kincaid, who says the men taking part in this program have had SWAT or tactical training. "We've had several situations with violence or the propensity for violence was there."

He's not aware of anyone getting shot in the marijuana eradication program, which was put in place under Governor Doug Wilder and is called GIANT, the Governor's Initiative Against Narcotics Trafficking.

Kincaid wasn't familiar with Cobbs' case, but he says, "If there were five cars and a helicopter, they weren't out there specifically for two plants." And despite this meager haul, Kincaid points out, "Marijuana is illegal, whether we see one or 100,000."

Virginia State Police spokeswoman Corinne Geller has a take on Cobbs' bust. She disputes any notion of racial profiling and asserts that the helicopter team didn't see Cobbs– just the marijuana.

As Cobbs was told at the scene, the two plants were spotted from the air, and the officers drove to his property. And in what Geller describes as a "cordial" conversation, "Mr. Cobbs gave consent, so a warrant was not needed," she says.

"What choice did I have?" asks Cobbs.

"They walked to the back, and the plants were just beyond the curtilage," says Geller, using the legal term that describes the area immediately surrounding a dwelling where a citizen has a reasonable expectation of privacy under the Fourth Amendment.

Finding the marijuana outside the curtilage, says Geller, is another reason no search warrant was necessary. And she notes that the police weren't storming through any door.

"It was not with guns drawn," says Geller. "We didn't have any tip information this guy was dangerous."

The effort, she says, started as a GIANT operation, but with enforcement now turned over to Albemarle police. She puts the street value of the two plants at $6,000.

Fighting pot in times of budget crunches

Since the Reagan administration intensified the War on Drugs in the 1980s, keeping Americans unstoned has gotten tougher with budget shortfalls in all levels of government, and more complicated as 16 states and the District of Columbia have legalized marijuana for medical pain relief.

In June, Representatives Ron Paul and Barney Frank introduced a bill to legalize marijuana at the federal level and let states make their own laws about legalization, regulation, or taxation. Congressman Robert Hurt, who represents Charlottesville and the surrounding area in Congress, did not respond to a Hook request for his position on the bipartisan proposal.

Some states are eyeing marijuana legalization as a potential revenue source and a way to reduce enforcement expenses, and on September 30, Governor Bob McDonnell asked all state agencies to figure out further savings strategies. Could Virginia's pot policies become an area in which the state could save money or even generate revenue?

Probably not. Those strategies, says the governor's spokewoman Taylor Thornley, will have to come from agency heads, who typically defer to the chief. Although declining comment on any specific program, she notes that GIANT, which is run by the Virginia State Police, is endorsed by the governor's office.

The federal Drug Enforcement Agency has traditionally been a cash cow for state pot interdiction efforts, and Virginia is no exception. In 2011 and 2010, the DEA contributed $285,000 to marijuana eradication in the Commonwealth, and the feds help out in other ways, like paying for helicopters, fuel, ATVs, and overtime expenses, says State Police spokesperson Geller. The National Guard also joins in the reefer-eradication effort.

"There are a number of opportunities for grant funding from the DEA," explains Geller. "If we have more arrests and seizures, we can get more money."

The number of arrests from pot eradication throughout Virginia, which includes indoor operations, has grown slowly the past few years, with 377 arrests in 2009 and 385 in 2010, according to the State Police. What has leaped are the number of plants seized: 18,583 in 2009 to 47,453 in 2010.

In a paper published last year, "The Budgetary Implications of Drug Prohibition," Harvard University economics prof Jeffrey Miron calculates the cost of marijuana prohibition in Virginia at $246 million, a number that includes police costs in making arrests, the judiciary's cost in prosecuting, and the cost of incarcerating offenders.

On the local level, Albemarle police assist the state operation once a year with a ground team of three to five officers to seize pot plants, says Sergeant Byers. In the past five years, county officers have taken 1,046 plants off the street.

The county has 14 officers with SWAT team status, although that's a part-time, as-needed assignment. Four Albemarle officers are assigned to JADE, which takes part in the state's GIANT operations– and two did so in Cobbs' bust, according to Byers.

While neither state spokesperson Geller nor Albemarle spokesperson Byers was able to provide an estimate of what the the two-plant operation in southeastern Albemarle cost, the Rutherford Institute's Whitehead figures that– with nearly a dozen men, with SUV engines running, and with a helicopter circling overhead for so long that it needed to refuel– it could measure well into the thousands of dollars.

"That's taxpayer money," says Whitehead.

"It doesn't seem reasonable to say, 'We saw two marijuana plants, send in a SWAT team,'" Cobbs says.

A chat with the DEA

For much of his 16 years with the Drug Enforcement Agency, spokesman Jeff Scott has done marijuana eradication in California and Kentucky. Typically, his experience has been hunting illegal crops on public lands, some so remote that agents "fast rope" down from helicopters, chop the plants, and then pack up the harvest.

"These fields we often deal with are on national forests," he says. "The individuals doing it aren't respectful of the land. They're huge, hazardous trash sites, and two, they're dangerous individuals. Do you want to go camping with your family in a national forest with these people there?"

Without knowing the circumstances, Scott is hesitant to comment on a case in which an eradication team would swarm to confiscate two pot plants. "That's generally not our M.O.," he says.

There are some indicators that can give away a pot patch, such as the color, which the pros can get good at distinguishing. "Sometimes you see hoses from the air rather than the plants themselves," says Scott. And you can use "binos"– that's binoculars in DEA lingo. (He also says agents might wear BDUs– battle dress uniforms, which are "more comfortable attire.")

About pot-spotting in general, Scott says, "Even someone who's done it a lot is not going to easily observe two plants from 500 feet in the air."

And what about greenhouses– do they draw the attention of helicopter teams or provide probable cause to justify a search, as Cobbs fears?

"A greenhouse is a legal structure," says Scott. "If it's in the backyard, that's not indicative of anything. If it's in the middle of nowhere, it could be indicative of something."

One other thing the DEA does differently from state and local drug enforcement is getting search warrants when making a bust on private land, according to Scott.

"If you spot it, you go get a search warrant," he says. "If it's clearly in the backyard, clearly in the curtilage, and you don't see someone running out in the backyard, it's a good idea to go get a search warrant."

High anxiety

In the 1830s, an Albemarle magistrate named Thomas Garland purchased the property where Cobbs lives, in an area called Buck Island. In 1868, Garland deeded 600 acres to his former slave and housekeeper, Elizabeth Allen, an ancestor to Philip Cobbs whom Garland later married. Most of the land was sold off to Westvaco in the 1970s, all except the 39 acres retained by Philip Cobbs.

Now, on the terrain he's known all his life, Cobbs says he no longer feels safe.

"The black helicopter was frightening enough," he says. "Combined with the raid, I can't say how traumatizing it's been. I still wake up at night drenched in sweat."

And he still ponders how police came to see two pot plants he says he didn't even know were there.

"As far as I know, all the decisions for that raid were made in 15 minutes," he says.

Cobbs is grimly amused at the idea he gave consent to the search. "I didn't feel like I had any choice," he says. "I was extremely cooperative."

He's scheduled to appear in Albemarle General District Court October 18, and he says he has refused a deal to plead guilty.

"They were not my plants," he insists. " I feel like any kind of plea would affect my ability to take care of my mother."

Aside from this year's speeding ticket (and, of course, the two-plant pot bust), Cobbs says he's had no run-ins with the law in more than a quarter of a century, and feels like he's been a law-abiding citizen, though he notes that he does have a couple of blemishes from his younger days.

One was a 1984 charge for petit larceny when he allegedly took a light switch cover from a hardware store. "There was no fine or anything," he says.

And he been in trouble before over marijuana– in 1976, when he was 18 years old, he was charged for possession. "It was dismissed," he notes.

Besides the Charlottesville school system, Cobbs has worked for the U.S. Census, served as a Boy Scouts of America scoutmaster, and he directed a Charlottesville Parks & Rec swim team. He has two sons, one of whom is in the Army.

"I have a reputation in Charlottesville," says Cobbs. "Many people in the community know me. I find it bizarre they would think I'm a drug dealer or manufacturer."

Says Cobbs, "For me, I didn't know it was there and so close. I feel vulnerable. It's extremely frightening. The only thing I can do is make choices to keep it from happening again."

He also feels intimidated. "I would't want anyone to go through something like this," says Cobbs. "I'm just an average citizen. If it could happen to me, it could happen to anyone."

***

Three days after a reporter spoke to the Virginia State Police about this case, Cobbs was awakened on another quiet morning by the sound of a helicopter circling over his land. It was October 9, and the episode lasted about 10 minutes. Police spokesperson Geller says the State Police helicopter was not doing marijuana eradication that day.