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Colorado Supreme Court rules cops can destroy medicine 

Open season for seizing

click to enlarge Crouse protests local plant limits last year. - NAT STEIN
  • Nat Stein
  • Crouse protests local plant limits last year.

It's official: Cops can destroy confiscated weed even if no one has been convicted of any crime.

That's the takeaway from a ruling the Colorado Supreme Court handed down on Jan. 23 in the case of Bob Crouse — the legendary local leukemia survivor and medical marijuana advocate. He's been fighting this legal battle since 2011, when Colorado Springs police showed up at his door to investigate his 75-plant marijuana grow, which he tended to keep his cancer at bay. When Crouse failed to produce up-to-date red card documents (though he did have the requisite physician's recommendation), cops booked him.

District Attorney Dan May, no fan of marijuana, charged then-63-year-old Crouse with felony cultivation and possession with intent to distribute. His trial brought out scores of supporters, the Independent reported at the time. Ultimately, Crouse was found not guilty because Amendment 20 protects patients' rights to possess any amount of marijuana that's "medically necessary" (and because it's damn hard to convince a jury to lock up a cancer patient over a paperwork snafu).

After the acquittal, cops refused to return his marijuana plants, so Crouse, represented by local attorneys Charles Houghton and Cliff Black, sued the city. They cited the state constitution, in particular, 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.)

A district court judge sided with Crouse, ordering Colorado Springs police to return his medicine. The Colorado Court of Appeals upheld that order. Now, the state's highest appellate court has reversed the two lower courts' rulings — a new twist that could portend trouble for medical marijuana patients whose rights to grow their own medicine have already been steadily restricted since the legalization of recreational pot.

At issue in the Crouse case is whether the return provision of Amendment 20, quoted above, forces police officers to violate the federal Controlled Substances Act (CSA) by effectively becoming distributors of a scheduled drug. That law immunizes officers who are "lawfully engaged in the enforcement of any law... relating to controlled substances," but the state Supreme Court has before held that "lawful," in that context, means complying with both state and federal law.

The opinion the court issued last week states 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 decision comes as a relief to May, the local DA who pressed the issue on behalf of law enforcement. In a release following the ruling, his office's spokesperson Lee Richards wrote that, "Because federal authorities are not bound by state judges' interpretation of federal law, the conflicting interpretations of the federal Controlled Substances Act placed local law enforcement authorities at risk of federal prosecution anytime they returned marijuana that they had previously seized."

In other words, the ruling protects police from legal consequences.

Though Crouse himself already got his (dead and useless) plants back after the district court's initial ruling, patients like him who grow their own medicine are now more at risk.

"The overall consequence," according to Crouse's attorney Cliff Black, "is that law enforcement isn't going to hesitate when they seize patients' medicine."

This, of course, will only be an issue as long as patients can grow their own — a constitutional right that's slowly been eroded through regulation. At the state level, Gov. John Hickenlooper has made clear his intention to limit home grows even further this session, prompting fears in the medical marijuana community that home grows could soon become a thing of the past.

A lawsuit challenging Colorado Springs' 12-plant grow limit on constitutional grounds has still yet to be filed.

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