Medical marijuana patients at risk of getting evicted from their residences or businesses might want to be on hand when sheriff's deputies show up. Otherwise, their MMJ plants and equipment could be confiscated by authorities, who aren't likely to nurture the plants until their owner can claim them.
It's not being disclosed how many medical marijuana plants and associated equipment might be in El Paso County's evidence storage, but one thing is clear: The evidence building isn't a grow operation.
Even though perhaps it could be.
El Paso County Sheriff Terry Maketa is concerned that if he doesn't preserve plants and paraphernalia, he'll be in violation of the state's medical marijuana constitutional amendment that states any property used in connection with MMJ cannot be "harmed, neglected, injured or destroyed while in the possession of state or local law enforcement officials..." That conflicts with federal laws that outlaw possession and cultivation of marijuana.
So Maketa is asking Attorney General John Suthers what to do when deputies evict a tenant with medical marijuana and equipment when the tenant isn't around to take possession. Sheriff's attorney Charles Greenlee says he doesn't know how many times, or whether, this has happened.
It's common practice for deputies to oversee household goods being placed on the curb during an eviction. But as Greenlee says, "Obviously, they can't put [marijuana and equipment] curbside."
Greenlee's first request for an AG's opinion in more than six years with the department seeks guidance to reconcile conflicting laws. U.S. Attorney John Walsh, in an April 26 letter to Suthers, said federal law supersedes laws of states that allow for medical marijuana and that federal officials "maintain the authority to enforce the [Controlled Substances Act] ... even if such activities are permitted under state law."
Greenlee says the Sheriff's Office has solved the problem of what to do with marijuana seized as evidence in which a person might rely on MMJ laws as a defense.
Greenlee says the law suggests that plants must be kept alive, but he adds, "Nobody wanted to put a greenhouse in the evidence facility."
The solution: Leave the marijuana plants in place at a home or business and photograph everything. "That way, if their medical marijuana defense is valid, their plants are in place and the evidence becomes the photos," he says. "The district attorney's office liked that, and that's what we've been doing ever since."
That was several years ago. In recent weeks, the civil process unit brought up the eviction dilemma.
Greenlee says the Sheriff's Office could find itself in a quandry if an MMJ dispensary gets evicted.
"So let's say the tenant didn't show up (during the eviction)," Greenlee says. "If the Sheriff's Office were to take that inventory and store it in evidence storage ... would the sheriff be aiding and abetting a crime under the controlled substances act? ... I do know that the evidence facility is not equipped for growing marijuana, so if any live plants have been seized and stored into evidence, they're merely being stored."
He says at least one other county, which he didn't identify, is wrestling with the issue. A spokesman with the Denver Sheriff Department didn't return a phone call. Denver police spokesman Sonny Jackson says he's not heard of a case where someone's been evicted and has left marijuana plants behind.
As for preservation of evidence, Jackson says Denver police take samples of suspected marijuana and leave the plants with the owner. If it's proven to be illegal, the plants are then destroyed, he says.View PDF here