Police in states that allow weed are taking a new approach to seizing marijuana plants: Instead of destroying them, they’re increasingly leaving them alone.
Pressured by lawsuits, a stronger cannabis industry, and public opinion, police agencies from Colorado to Hawaii are changing their tactics and treating medical and recreational weed as property, not just evidence.
The main mover behind the new policies is fear of liability. Suspects in drug cases have sued numerous states over the destruction of their marijuana plants.
Now the agencies are increasingly recognizing the property rights of medical pot patients and marijuana growers. Instead of seizing the plants, police take clippings and photographs.
“None of us really are sure what we’re supposed to do,” said Mitch Baker, the executive director of the Washington Association of Sheriffs and Police Chiefs. “And so you err on the side of caution.”
The policies mainly benefit medical growers. While Colorado and Washington have legalized all pot, 21 other states allow medical marijuana. That number is likely to keep growing.
“Law enforcement is going to have to think more carefully about what their procedures are and how those procedures might need to change in light of changes in the law,” said University of Denver law professor Sam Kamin.
The changes don’t extend to federal agents, however. Cannabis is barred for any use by federal law.
The distinction between federal statutes that outlaw weed and state laws that allow it has caused a problem for many law enforcement authorities. Police are trained to enforce the law, and enforcing one set of laws while ignoring another doesn’t sit right with many cops.
Still, that’s changing, sometimes rapidly, in states that allow medical or recreational pot.
Police have long treated the presence of cannabis plants, as well as the smell of weed, as probable cause to search a person’s property. Under old laws that banned marijuana, that approach was backed by the courts.
That, too, is changing. Plaintiffs suing police departments over destroyed plants are making a growing dent in old procedure. And some of them are asking for hundreds of thousands of dollars in damages.
In Colorado, a patient with cancer was arrested on drug allegations. After the charges were dropped, he sued because police had destroyed 55 plants during a search of his home. Officers returned the dead plants only under order from an appellate court.
Colorado law requires that police return any marijuana plants taken from a suspect who is cleared, whether by prosecutors or a jury. They must be returned intact.
“We need uniform rules, and law enforcement would be wise to develop those rules, otherwise they will continue to be sued,” said Sean McAllister, attorney for one of the plaintiffs suing Colorado.
Patients and growers are suing in other states as well, including Hawaii, where a group of patients is asking for nearly $300,000 – $5,000 per plant – after police destroyed 52 plants during a raid in which no one was arrested.
“Ten years ago, you had that many plants, you just went in there and ripped them all out,” said Sgt. David Oswalt in Grand Junction, Col. “Now you’ve got to ask a few questions.”