Judge Tells Cops: Return the Pot Plants to the Defendants

By Jeralyn, Section Crime Policy
Posted on Wed Nov 28, 2007 at 07:21:00 AM EST
Tags: medical marijuana (all tags)

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Larimer County, Colorado District Court Judge James Hiatt ordered the cops to return 39 seized marijuana plants and a grow system to a couple who grew the plants as caregivers for themselves and a few other patients.

Brian Vincente, lawyer for the couple, hopes authorities have taken care of the plants as provided by the state's medical marijuana law, which was approved by voters in 2000.

"If they've allowed these plants to die, they've broken the law," said Vincente, executive director of Sensible Colorado, a non-profit advocacy group of medical marijuana patients. He described the ruling as the largest return of medical marijuana to a grower since the law went into effect.

If the plants were destroyed, Vincente said his clients will seek compensation for the plants, which he estimated to be about $100,000.

The prosecution is deciding whether to appeal the judge's order. [More...]

The issue:

In June 2006, Hiatt tossed out the charges against the Masters after ruling that the search warrant was illegal. Vincente argued that the officer who drafted the warrant, "wrote up a search warrant on what he had already searched."

Monday's hearing concerned the issue of whether the marijuana and equipment seized was contraband or property that needed to be returned to the Masters.

A four hour hearing was held:

Hiatt heard about four hours of testimony from police as well as people who said they rely upon the couple not only for medical marijuana, but for rides to hospitals and doctors and other care.

He ordered the return of the pot and grow system. More like this please.

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Judge Tells Cops: Return the Pot Plants to the Defendants | 25 comments (25 topical)

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Glimmer of hope.... (5.00 / 2) (#4)
by kdog on Wed Nov 28, 2007 at 08:16:15 AM EST

15 years ago, could you in your wildest dreams ever imagine a judge in a US court of law saying "give that man his reefer back"?

Very cool.

There are many ways (none / 0) (#19)
by NMvoiceofreason on Fri Nov 30, 2007 at 09:20:18 AM EST

for the police to get around this.

Turn the drugs over to federal DEA agents. Then good luck ever getting a state court ruling to get the material returned.

In the end, since the federal government has no respect for the states on this issue, the federal/state legal divide will be used again and again to steal the property from the people, "under color of law".


: Yeah... (none / 0) (#20)
by kdog on Fri Nov 30, 2007 at 10:41:44 AM EST

I'm sure it is only a moral victory, and the guy has little chance of ever being compensated for the theft committed by the state.
But the fact that such a ruling was made in this country gives me hope. Maybe, just maybe, we are getting somewhere and winning some hearts and minds on the state level. I've given up on the feds ever getting their collective head out of their collective arse...the states are our only hope.

Poetic justice (5.00 / 2) (#5)
by SeeEmDee on Wed Nov 28, 2007 at 09:37:52 AM EST

The 'authorities' usually claim that the entire plant's wet weight should be factored when making their calculations of street value, usually over-inflating the actual value of it in order to ramp up the conviction level to 'trafficking' for some shmoe growing his own.

Let's see if they start to waffle, now that it seems they may be forced to pay a hefty amount...based upon 39 plants and the grow equipment. In this case, cannabis prohibition would turn around and bite its' proponents in the arse, since the artificially high cost of cannabis will determine the fine amount returned; otherwise, we'd be talking about a fistful of quarters for something that literally grows 'like a weed'.

Where I practice, (5.00 / 1) (#6)
by Deconstructionist on Wed Nov 28, 2007 at 10:21:46 AM EST

on television, after a raid of growing plants, a police officer always claims each plant was worth $2000 in the street regardless of quality or stage of develpment. It could be a tiny clearing in the woods into which some kids tossed some random seeds and the plants are scraggly mixed sex a foot high with no buds in September but the cops will still simply multiply 2 grand by the number of plants and claim a huge, important eradication. Most of the time no arrests are made in such cases just some bad weed gets burned so it's all just BS.

Not always.

I once had a rookie on the stand who insisted repeatedly that a 4 inch plant with about three leaves was worth $2000. By the time of trial the plant had shriveled to a tiny curled up stem and some dust-- not even 1/5 gram-- and I made him remove it from the evidence bag and show his $2000 worth of marijuana to the jury. He still insisted it was $2000 worth of marijuana. It was much fun badgering him about the basis for his opinion as to value.

The cop was adamant because my client had a weapons charge for possessing firearms in connection with cultivation and knew my defense for that was that his weapons were far more valuable than the patch of weed and that his possession of the weapons had nothing to do with the plants. The cop felt he had to stick to the price no matter how ludicrous it was. He so damaged his credibility, the jury also acquitted my guy of the cultivation charge on which they had him dead to rights.

: That must have been comical..... (5.00 / 1) (#9)
by kdog on Wed Nov 28, 2007 at 01:46:11 PM EST

good job Decon.

I have a friend (5.00 / 2) (#7)
by Repack Rider on Wed Nov 28, 2007 at 11:53:25 AM EST

whose plants were torn out of his back yard by a deputy sheriff who entered the property without probable cause.

Not only did he win his case, his insurance company reimbursed him for the plants.

California has a few good things going for it.

Here in CA they give the individual Counties (5.00 / 1) (#11)
by kindness on Wed Nov 28, 2007 at 03:19:04 PM EST

the leeway to use their own discretion.

Some counties are OK, some counties are still out to make medical marijuana on par with crank, coke or heroin possesion. DA's in the Central Valley frequently still think they can look good by being hard core, even on folks who have the Medical Marijuana cards.

I have a card. I'm just careful about it still though. It isn't a get out of jail card every where.

But the Cannabis shops are like Christmas any day you walk in.

The article is sketchy (none / 0) (#1)
by Deconstructionist on Wed Nov 28, 2007 at 07:31:30 AM EST

but the judge's ruling on the 4th amendment issue seems shaky. I am aware of no case law holding that the probable cause for a search warrant cannot be based on an officer's personal observation of contraband or other evidence from an earlier LEGAL entry. The article suggests the police officer was given consent to enter because the owner believed that under the law he could not be prosecuted. Consent given under misapprhension of substantive law is still valid consent and the first entry would thus seem to have been legal. There is nothing in the article suggesting the police exceeded the scope of the consent, so the basis of the suppression that the cops asked for a warrant to search what had already been searched seems dubious under the law.

Perhaps, as is so often the case, the article misstates the basis for the ruling, bu8t if not I would highly doubt the decision withstands appeal.

A second question would be whether even if the search itself was legal the property must be returned by state authorities because under state law it was legally possessed and not subject to seizure, but the article does not indicate that was a basis for the decdision.

States' rights end at the lynching tree (none / 0) (#2)
by scarshapedstar on Wed Nov 28, 2007 at 07:53:49 AM EST

So it would seem.


But in CO medical pot is legal (none / 0) (#8)
by lilybart on Wed Nov 28, 2007 at 01:44:07 PM EST

so why was he even allowed to reenter to take the plants?

Don't providers have to be registered or something?


The issue at that stage (none / 0) (#10)
by Deconstructionist on Wed Nov 28, 2007 at 02:17:03 PM EST

would be "probable cause." Many things can be seized as evidence that are not inherently illegal to possess. Based on a showing there is probable cause to believe they may be evidence of criminal activity otherwise perfectly legal things such as money, papers, etc can be seized.

In this instance, the marijuana would be more akin to property suspected of being stolen. A television, for example, is in and of itself in no way "illegal" but cobined with other facts the presence of a television might be evidence of a crime. If after a seizure one demonstrates that the particular television was not stolen property, one would be entitled to have it returned but that would not mean it was illegal for the police to have seized it based on the warrant supported by probable cause.


: Thanks for the explanation (none / 0) (#14)
by lilybart on Thu Nov 29, 2007 at 08:54:03 AM EST

I thought that 10 hours of Law and Order would have taught me more!

Is that (none / 0) (#3)
by Deconstructionist on Wed Nov 28, 2007 at 07:56:56 AM EST

profundity intended to have any relevance at all to this thread or do you just employ it randomly to be cool?

How could they havekept the plants alive (none / 0) (#12)
by Ben Masel on Wed Nov 28, 2007 at 05:13:29 PM EST

this long, even if they'd tried?

Interestingly enough (none / 0) (#13)
by Patrick on Wed Nov 28, 2007 at 11:33:47 PM EST

This California decision was just published. Luckily I found it before I posted the comment I had just written ;)

good find (none / 0) (#15)
by Deconstructionist on Thu Nov 29, 2007 at 10:01:59 AM EST

That decision is decided based upon what I above called the "second question." Most interesting is that the State of California through its AG entered the case despite not being served as a party and argued for the position the marijuna must be returned to Kha under state law and due process in oppostion to the City (a subdivision of the State) which was seeking an order overruling the lower court's decision the marijuana must be returned.

That's obviously unusual, to say the least, but the AG's position that as attorney for the State of California it must seek to uphold validly enacted state law against challenge seems sound to me-- regardless of the issue at hand.


This is a very interesting argument (none / 0) (#16)
by Patrick on Thu Nov 29, 2007 at 05:10:08 PM EST

for me because it puts two principles at odds. I strongly support a state's right to make and enforce its own laws without federal interference, yet I think the medical marijuana laws are used mostly as a shield for those who want to make a lot of money.

I don't really care if someone wants to get high, in California they can pretty much do that anyway. But I'm really put off by the people making millions and hiding behind a law that was passed by the voters to porportedly help sick people. It's a joke that an 18 year old with stress or a ADD gets a medical recommendation. I personally know a physician that will guarantee a medical recommendation for $150.00. The only piece of new equipment in his office is a credit card machine. It's a racket and it needs to be fixed, but at what cost and level of interference from the federal gov't.

Yeah, I know the legalize and tax it crowd doesn't like my position, but as soon as someone can tell me how they plan on taxing it reliably then perhaps I'll reconsider it.


Racket? (none / 0) (#17)
by squeaky on Thu Nov 29, 2007 at 06:18:57 PM EST

Seems like the Dr is not the only one involved in a racket. How much does the Government spent on pot? From eradication, to stings to judges prosecuters and jails?

Sounds like a big business to me, all generated around a harmless weed that seems to have positive health effects and very little downside as a recreational drug.

That is the sham racket.


I'm not the only one (none / 0) (#21)
by Patrick on Fri Nov 30, 2007 at 11:11:29 AM EST

Who thinks California's "Solution" has created bigger problems.


It's not a new problem.... (none / 0) (#22)
by kdog on Fri Nov 30, 2007 at 12:21:59 PM EST

just a problem new to the reefer trade.

For as long as prescriptions have been required for certain drugs, there have been crooked doctors willing to write scripts for those who want the drugs for recreational use...for a price of course:) This shouldn't be all that surprising.

For example, I've got a buddy who likes to take the ADD drug Adderall while playing poker tournaments...he went to a crooked doctor and got his script...no problem.


: Kdog (none / 0) (#25)
by Patrick on Sun Dec 02, 2007 at 01:46:04 PM EST

The linked article isn't about doctors giving out bogus prescriptions. It's about all the problems caused by the new laws and quotes a medical MJ grower who says it's out of control.

I mostly agree with you (none / 0) (#18)
by Deconstructionist on Fri Nov 30, 2007 at 07:17:05 AM EST

even though I am in the legalize and tax marijuana crowd. "Medical marijuana" is obviously hugely exploited by people who want to get high and those who want to make money from them. I actualy think these "clever" schemes hurt true legalization in the long run. I just think the AG has a sound position in defending California's law from challenege because that is the duty of his office-- not to pick and choose based on whether the law is "good or bad" policy.

I think marijuana should be available to adults for recrearional use in the same way and through similar controls as with alcohol and then there would be no need for the "medical marijuana" front. I think many people are also highly offended by the prospect they might one day be subsidizing other people's parties through insurance pools and government programs.

Marijuana is not medicine and should not be treated as medicine. It should be treated as what it is, an herbal intoxicant which many find people find pleasurable and some believe provides symptomatic relief (even a placebo effect might be worthwhile) for ailments of widely ranging degrees but is not capable of being administered in a manner remotely consistent with "medicine" and which, perhaps not coincidentally, people argue is not "effective" unless administered in the way least consistent with "medicine" and most consistent with getting high.

It is dangerous enough to warrant regulation but it is also demonstrably less dangerous than alcohol and tobacco which while regulated are not illegal or treated as "medicine" though one could make similar "medicinal" claims about either and people no doubt would if they were illegal too, because when people want something they will go to great lengths to get it.

Legalize it, tax it, require licenses throughout the production and distribution chains, establish purity and potency inspection and controls and let adults buy it at the package store with the half gallon of whiskey which is far more dangerous to both the drinker and the people in his envirinment.


: LetUsPayTaxes.Com (none / 0) (#23)
by squeaky on Fri Nov 30, 2007 at 07:45:20 PM EST

Sounds like begging to me. Also sounds like a no-brainer, but what do I know.

Judges Orders change of policy in Adams County, CO (none / 0) (#24)
by COmidnightrider46 on Sun Dec 02, 2007 at 09:35:07 AM EST

CONGRATULATIONS

legal MMJ patient LEN BOCANEGRA
on his recent court WIN!!

In a motions hearing today, Adams County Magistrate Simon Mole ordered the return of property for legal medical marijuana patient Len Bocanegra. Of interest is a mention from the magistrate that the district attorney's office needs to develop a form which can streamline the process of returning their medical marijuana property as legitimate patients without necessitatiing a motions hearing for same. The legal patient would then provide this 'developed' form to the law enforcement entity holding the evidence, so they might be more willing to release same. This remedy speaks clearly to the Constitutional wording of Amendment 20 which calls for the "immediate" return of property.

THANK YOU for the numerous members of the North Denver Medical Marijuana Discussion Group, the Denver Chapter of the Compassionate Coaltion (compassionatecoalition.org), an affiliate of Americans for Safe Access (safeaccessnow.org) for providing a considerable court support showing for this effort. It clearly makes a positive difference when the bench sees additional legal patients/caregivers and other interested parties in attendance!//Colorado Midnight Rider

Sincerely,

Timothy Tipton
court-appointed cannabis expert

moderator, North Denver Medical Marijuana Discussion Group
202+ members (http://medmarijuana.m... )
~~~Denver Chapter of the Compassionate Coalition
(compassionatecoalition.org)
~~~affiliate of the Americans for Safe Access
(safeaccessnow.org)

founder, Rocky Mountain Caregivers Cooperative
NRAD North Reasonable Access Denver
commjexpert@gmail.com

***********
Legal patient Len Bocanegra is partial to his grinder. It has considerable sentimental value and is a functional piece of equipment for his daily repertoire of cannabis therapy. "Normal" therapy for his medical issues include various prescription drugs including narcotics, but the Desert Storm veteran claims he is better able to function by minimizing his use of traditional drugs and embrace the enhanced quality of life medical marijuana therapy offers currently.

During the morning of August 15, 2007, legal medical marijuana patient Len Bocanegra was stopped by a Colorado State trooper on I-76 freeway near Federal Avenue. This was an unusual stop, as the young trooper immediately reported that Bocanegra?s plate and tags didn?t match up, however, it was later learned that this was NOT the case.

"The first words out of the officers mouth was, "Where is the marijuana?", reports Bocanegra. "I told him I was a legal patient, but this didn't make any difference to how he reacted." The officer confiscated a medicinal marijuana grinder, and approximately 1/8 ounce of therapeutic cannabis. Although he was clearly a Colorado Medical Marijuana Registry cardholder, the Colorado State Police officer still cited Bocanegra for failure to wear a seat belt, possession of marijuana, and possession of paraphernalia.

A subsequent meeting with the Adams County prosecutor?s office October 16, 2007, found the representative provided a 'certificate of dismissal of action' when Bocanegra showed evidence of his participation in the Rocky Mountain state's medical marijuana registry program.

SO, off to the Commerce City State Police Post to meet with property Sergent Dan J. Elder found him a little less interested in complying with the Colorado Constitutional Amendment 20 sections which speak of 'immediate' return of property for confirmed patients. "I am NOT releasing anything until I have a letter from the prosecutors office," reported Sgt. Elder.

Later that day, a 'return of property' letter was provided to traffic court judicial assistant Ilia Becerra, along with a legal motion for return of property, and accompanying order for a magistrate to sign. An unnamed magistrate came around the corner and reported, ?I am not denying this motion, and will send it up to the district attorneys office to see if a letter can be sent out for return of property," were the words of 'hope' for Bocanegra. It had been a lengthly effort already, and Bocanegra, soon facing hip replacement surgery, was in no mood for a run around.

For the next thirty days, according to credible sources, Bocanegra's request sat on the desk of Senior District Attorney Justin Moore. Multiple telephone inquiries was unable to prompt movement, and one dialogue reported, "Mr. Moore said that if he (Bocanegra) wants his property back he needs to provide me with a doctors note." Bocanegra and others have, as yet, been unable to find anything in the wording of the eight year old Constitutional Amendment 20 which speaks to the need for a doctor note for return of property as a legal patient. Holders of the Colorado Medical Marijuana Registry Certificate, issued by the state department of health, have already provided a signed physician's recommendation before issuance of the document.