- File photo
- The outcome of MMJ patient Bob Crouse's case rewrote cops' rules.
Just because a court finds you were legally growing marijuana plants doesn't mean you get those plants back after police have seized them.
Local leukemia survivor Bob Crouse found that out the hard way. Recall from past reporting by the Independent that his case began in 2011, when cops seized his 75 marijuana plants, which he grew to extract oil to keep his cancer at bay. District Attorney Dan May charged then-63-year-old Crouse, in precarious remission, with felony cultivation and possession with intent to distribute. He was found not guilty at trial, having raised the affirmative defense that the amount recommended by his doctor was "medically necessary."
Cops refused to give back his cut-down plants after the acquittal, so Crouse, represented by local attorneys Charles Houghton and Clifton Black, sued the city. Their complaint referenced the state constitution, particularly language holding that, "Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials." As such, they argued that law enforcement should have maintained the approximately 60 pounds of seized crop (worth over $300,000).
"Maintained" as in re-planted, watered and cared for.
Though Crouse lost on the maintenance point, he won in district court where a judge ordered CSPD to return his plants (which, at that point, were dead). The Colorado Court of Appeals upheld that order, but the Colorado Supreme Court reversed the two lower courts. The central question, now resolved, was whether the return provision in the state constitution is lawful. In other words, can the state require local law enforcement to effectively distribute a Schedule I drug?
The Controlled Substances Act immunizes officers who are "lawfully engaged in the enforcement of any law... relating to controlled substances," but the Colorado Supreme Court had previously held that "lawful," in that context, means complying with both state and federal law. So, in the end, the court ruled that, "[O]fficers here could not be 'lawfully engaged' in law enforcement activities given that their conduct would violate federal law. We thus conclude that, because section 14(2)(e) [of Amendment 20] 'positive[ly] conflicts' with the CSA." Therefore, the court reasoned, "the return provision is preempted and rendered void."
The ruling, handed down this January, both clarified a beguiling issue and created a new one.
"It used to be that when we found 2 ounces in Johnny's pocket, we'd get all spun out over what to do," says Sgt. Roger Vargason, a member of the Metro Vice, Narcotics and Intelligence Division. "Because, are we legally obligated to give it back to Johnny if it turns out he's got the right paperwork for it? So we'd just leave it in his pocket. It was really crazy for us, to leave the fox in the henhouse, so to speak."
Following the Supreme Court decision, Metro VNI and the DA's office updated their standard operating procedure for seized marijuana plants, as detailed in the slideshow (below).
But the ruling may have strange implications beyond the narrow issue at hand. "If we have a decision that prohibits [law enforcement] from handing back marijuana because it's a violation of federal law, then how can the state, at the same time, affirmatively license and tax commercial producers?" comments Denver attorney, Rob Corry, who didn't work on the case. "That's essentially profiting off a federally illegal act, so, logically, I don't know how we reconcile it in the face of the Crouse ruling."