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Marijuana is legal in California. So why is the CHP arresting delivery drivers?

Cannabis may be legal in California, but the new rules of the road are so confusing that even former California Highway Patrol officers are struggling with them.

That became clear on a September morning when a pair of former CHP officers who now run a licensed cannabis distribution business found themselves arrested after a traffic stop on Interstate 5 in Stanislaus County.

Rick Barry, 48, and Brian Clemann, 47, were released from custody in Merced hours later, but the CHP kept the $257,000 the two men were transporting and handed it over the the Department of Homeland Security, according to a lawsuit filed in Merced County Superior Court.

Barry and Clemann also are suing the CHP in San Francisco Superior Court, where they’re seeking a ruling directing state and local governments not to interfere with the legal distribution of marijuana.

“It appears the CHP will stop at nothing to disrupt the lawful and legal transport of items involved in the medicinal cannabis industry,” Barry and Clemann said in a press release.

Their predicament underscores one of the key challenges that cannabis distributors face a year after a California law legalizing recreational marijuana took effect.

Marijuana may be legal in California, but it’s still an illicit substance under federal law and people in the business run the risk of time in custody or lost product if they run afoul of local authorities.

State and local governments also want to prevent illegal marijuana distributors, such as black market growers and drug cartels, from operating easily.

The California Office of Administrative Law last week handed down a ruling that sought to clarify how distributors should move about the state. Its decision upheld a Bureau of Cannabis Control regulation that states “a delivery employee may deliver to any jurisdiction within the State of California provided that such delivery is conducted in compliance with all delivery provisions of this division.”

Bureau Chief Lori Ajax said in a statement that “These approved regulations are the culmination of more than two years of hard work by California’s cannabis licensing authorities.”

But the ruling was unpopular among long governments that wanted to retain influence over how marijuana is sold in their jurisdictions. Its opponents included the League of California Cities and the California Police Chiefs Association.

“We are deeply concerned with the adoption of the new cannabis regulations, which allow for the delivery of cannabis anywhere in the state. We are already having trouble enforcing a new and complex industry, and this allowance will only make enforcement even more difficult,” California Police Chiefs Association President David Swing said.

CHP seizures of cannabis on the rise

The CHP hasn’t slowed down in cannabis seizures since legalization. In fact, the department seized nearly eight tons of cannabis between January and November of 2018. That’s almost double the amount of cannabis the CHP seized in 2017, and the most it has taken in a calendar year since 2014.

CHP spokeswoman Jaime Coffee said in an email interview that “in order to legally transport cannabis in California for commercial purposes, a person must possess the appropriate (Bureau of Cannabis Control) license and comply with the BCC administrative regulations.”

That means state officers remain on the lookout for black market operators.

Barry and Clemann, the former CHP officers who now own Eureka-based Wild Rivers Transport, weren’t transporting cannabis when they were stopped on Sept. 6, 2018. Their vehicle was searched when a police canine detected cannabis during the traffic stop, according to their lawsuit.

The cannabis distributors acknowledge they left the CHP on bad terms after careers there that lasted more than a decade, Clemann said. The CHP in 2015 accused Clemann of burglarizing an evidence room. A jury in 2016 found him not guilty, according to the Del Norte Triplicate.

Barry and Clemann went into business together in 2017. Clemann in an interview said he and his partner resolved only to deal with “white market” cannabis companies when they opened their distribution company.

“We make sure they’re a licensed company,” he said. “We do our research, then we transport from A to B.”

Members of the Chamber of Commerce

On the day of the arrest, Barry and Clemann were collecting a payment for cannabis oil. Clemann said he and his partner carried their distribution license from the Bureau of Cannabis Control.

Clemann said he and Barry identified themselves as “prior” CHP officers when an officer pulled them over. Clemann said the officer accused them of lying about their status. Clemann said the officer appeared to mishear “prior” as “retired.”

The difference between the two words can be significant to law enforcement officers. “Retired” generally means the former officer left the department in good standing after a full career and is receiving a pension.

“Prior” can connote the former officer left the department after a shorter career and in varied circumstances.

The CHP published a press release after the arrest that said Barry and Clemann called themselves retired police officers. It also said Barry and Clemann were arrested on suspicion of illegal possession of concealed firearms and possession of more than $100,000 derived from the unlawful sale, possession for sale, transportation or manufacturing of a controlled substance.

Neither Barry nor Clemann has been charged with a crime, court records show.

Wild Rivers Transport is a member of the Eureka Chamber of Commerce. Its business license is suspended by the California Franchise Tax Board because it failed to file a tax return on time and it has an outstanding balance of $250, according to the department.

Kumin, the attorney representing Barry and Clemann, said in an email interview that “the fundamental issue here is whether the CHP is going to follow the will of the voters of California and the Legislature and stop cooperating with federal authorities in the ongoing federally instigated war on cannabis.”

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Andrew Sheeler covers California’s unique political climate for McClatchy. He has covered crime and politics from Interior Alaska to North Dakota’s oil patch to the rugged coast of southern Oregon. He attended the University of Alaska Fairbanks.
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