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Lawsuits over seized weed spark police policy changes

In some cases, the one-time suspects are asking for hundreds of thousands of dollars to replace dead plants.

DENVER — Police in some medical marijuana states who once routinely seized illegal pot plants by ripping them out by their roots and stashing them away in musty evidence rooms to die are now thinking twice about the practice.

From Colorado and Washington state to California and Hawaii, police are being sued by people who want their marijuana back after prosecutors chose not to charge them or they were acquitted.

In some cases, the one-time suspects are asking for hundreds of thousands of dollars to replace dead plants.

Concerns over liability have prompted some agencies to either forgo rounding-up the plants altogether or to improvise by collecting a few samples and photographing the rest to use as evidence for criminal charges.

“None of us really are sure what we’re supposed to do, and so you err on the side of caution,” said Mitch Barker, executive director of the Washington Association of Sheriffs and Police Chiefs.

The change comes as the notion of marijuana as medicine clashes with police seizure procedure that was developed in an era when pot was a scourge that needed to be wiped out.

“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 Sam Kamin, a University of Denver law professor.

Just as the smell of pot smoke may no longer be grounds to search a home or make an arrest, Kamin, who helped craft the state’s pot regulations, said, “the same evidence that two or three years ago would have given police probable cause today doesn’t.”

Most local police say they are seizing less weed post-legalization, but they still investigate if they suspect patients are growing more than they should. Federal agents face no such quandary since pot remains illegal under federal law.

Whether or not state laws require, as they do in Colorado, police to return medical marijuana intact if a suspect isn’t charged or is acquitted, departments have been sued over pot that has wilted in their evidence lockers.

In Colorado Springs, a cancer patient who had faced drug charges is suing police after 55 dead plants were returned to him. The state appeals court had to order the police to return them.

Medical dispensary owner Alvida Hillery sued police to return her 604 pot plants or pay $3.3 million after she was acquitted of drug-cultivation charges. She dropped the suit in exchange for a city dispensary license. By then, the plants had died.

“We need uniform rules, and law enforcement would be wise to develop those rules otherwise they will continue to be sued,” said Hillery’s attorney, Sean McAllister, who is representing another dispensary owner in a similar suit in federal court.

City patrol officers must now call a narcotics detective for advice if they believe they are in the presence of illegal weed.

In Hawaii, a group of medical marijuana patients who were never arrested sued in May after police seized 52 plants in a raid. They want $5,000 for each plant if they’ve died.

In Oregon, a narcotics task force takes only the number of plants necessary to bring a patient back into compliance with the law, said Washington County Sheriff’s Sgt. Chris Schweigert.

“Ten years ago, you had that many plants, you just went in there and ripped them all out. Now, you’ve got to ask a few questions,” said Sgt. David Oswalt, who supervises the Grand Junction police evidence room.

Oswalt’s department tells officers who believe the questionable weed is legal for medical purposes to take clippings and leave the plants behind. If not, they can seize plants by the bundle.

Police in Lynnwood, Washington, no longer seize medical plants, said Angelea Madsen, who supervises the evidence unit.

Officials last year returned 202 dead plants seized from a group of medical marijuana patients who were never charged with crimes. They demanded police return the weed and growing equipment or pay nearly $1 million, the estimated value.

John Jackson, the police chief in Greenwood Village, Colorado, and a vice president of the state’s association of police chiefs, said state lawmakers must enact guidelines on marijuana seizures to protect law enforcement from civil and criminal liability.

“There’s no property room in the world that’s going to turn into a hydroponic growing operation,” Jackson said.

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Associated Press writer Gene Johnson in Seattle contributed to this report.

This story was first published on DenverPost.com

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Colorado’s Cannabis Conundrum

Colorado’s Cannabis Conundrum: Marijuana Everywhere, But Not A Spot To Smoke

 

For cannabis consumers who are accustomed to the black market’s meager selection and iffy quality, Colorado’s dispensaries are a revelation: dozens of strains, each with a distinctive bouquet, fresh enough that you can actually smell the difference. Denver-area budtenders, who say tourists account for half or more of their business, are used to amazed reactions, reminiscent of the scene in Moscow on the Hudsonwhere Robin Williams, playing a Soviet defector, encounters an American supermarket for the first time. But once a visitor  settles on a gram of Budderfaceor a quarter-ounce of Cinderella 99, he has a problem: Where can he smoke it? State and local restrictions have made answering that question a much bigger challenge than it needs to be.

Amendment 64, which legalized marijuana for recreational use, prohibits consumption of cannabis on the premises of the state-licensed stores that sell it. Furthermore, those stores are not allowed to sell anything but marijuana products and related merchandise, so the only food and beverages they stock are cannabis-infused edibles. Colorado therefore does not have anything like Amsterdam’s famous “coffee shops,” where you can buy and consume marijuana along with soft drinks and snacks.

Well, you might think, that would have been fun, but at least you can buy your pot at a dispensary and take it somewhere else to consume it. Not so fast.

The Colorado Clean Indoor Air Act, which has been amended to cover marijuana as well as tobacco, bans smoking inside bars and restaurants. Outdoor areas of those businesses are exempt from the smoking ban, but that does not necessarily mean tourists can enjoy their newly purchased pot there. The section of Amendment 64 that eliminated penalties for marijuana use does not apply to “consumption that is conducted openly and publicly.” Last year Denver—which is the epicenter of marijuana retailing, with more pot shops than the rest of the state combined—passed an ordinance that defines “openly and publicly” broadly enough to foil the plans of visitors who thought they could legally smoke pot on the patio of a bar or restaurant.

Denver’s ordinance defines openly as “occurring or existing in a manner that is unconcealed, undisguised, or obvious.” It defines publicly as “occurring or existing in a public place” or “occurring or existing in any outdoor location where the consumption of marijuana is clearly observable from a public place.” Finally, Denver defines public place to include not just city sidewalks and parks but any business open to the public, such as a bar or restaurant.

Fine, you might say. Let’s go back to the hotel. But that is also a problem.

Warwick Denver Hotel (Image: Wikimedia)

When I checked into the Warwick in downtown Denver on Sunday, the registration form included the following notice: “The recent Colorado law permitting recreational marijuana use does not apply to this private business. City of Denver law prohibits marijuana consumption on hotel balconies.” That first sentence asserts the hotel’s right to ban marijuana consumption on its own property, a right that every property owner retains under Amendment 64. But the second sentence claims that consuming marijuana on a hotel balcony is illegal in Denver. Is that true?

A hotel balcony is not a public place by Denver’s definition, since it is open only to registered guests and the people they invite, not just anybody walking in off the street. You could argue that a hotel balcony is an “outdoor location where the consumption of marijuana is clearly observable from a public place.” But that depends on various factors, including the time of day, the amount of pedestrian traffic on the street, the floor where the room is located, and the discretion of the marijuana consumer. If all that can be seen from the street is smoke, who is to say what sort of dried vegetable matter is being burned? And if you are smoking pot at 2 a.m. on the balcony of a 12th-floor room above a deserted street, your actions may not be “clearly observable” by anyone. The Warwick nevertheless reads Denver’s ordinance as a blanket ban on balcony bud burning.

In practice, the hotel may be more cannabis-friendly than its warning suggests. “It’s hilarious,” says Nick Brown, co-owner of Spiro Tours, which arranges marijuana-themed itineraries. “Cannabis is a ‘don’t ask, don’t tell’ type of thing. The Warwick is what every operator uses for their cannabis-friendly hotels because they have balconies. The balconies help us comply with the Clean Indoor Air Act.”

But does that mean the hotel does not really care what you are lighting up on the balcony? “In my conversations with the hotel, it’s kind of vague,” Brown says. “Cannabis is Denver, Colorado. People come and smoke pot here all the time. It happens. So I’m like, ‘OK, am I allowed to have the tourists in there smoke pot without getting in trouble?’ And she says the trouble would be a smoking fine just for filling up the room with smoke. But that applies if they smoke cigarettes in there too.”

Peter Johnson, founder and CEO of Colorado Green Tours, thinks it will be a while before hotels officially welcome cannabis consumers. “They’ve got an odd interpretation of the law,” he says. “They have smoking policies. They make you sign [a form] saying it’s illegal to consume cannabis, when technically it’s not. You have to keep in mind that they’re not Colorado-only businesses. Their rules are being written over in Prohibitionville; that’s where there’s a big disconnect. A lot of these hotels come across as very cannaphobic, and I think it’s going to be a while before they have an ‘a-ha’ moment and say, ‘Oh, they’re really not bad people. They’ve been staying here all along anyway, so we might as well openly allow them to do what they’re doing.’”

Some Colorado-based businesses do explicitly offer cannabis-friendly lodging, and renting apartments is another option. If you happen to have friends in Colorado (or make some during your trip), consuming marijuana in their homes is clearly legal. According to Brown and Johnson, so is consuming marijuana in a private vehicle such as a limo, a van, or a bus (as long as you’re not the driver). Tour companies therefore can let customers sample their dispensary purchases en route to the next destination.

(Image: Colorado Symphony Orchestra)

But if you want to legally consume marijuana in a social setting similar to a tavern or a cocktail party, rather than sneaking puffs here and there, the options are limited. The Colorado Symphony Orchestra (CSO) explored that territory when it announced a “Classically Cannabis” concert series last spring. The original plan was to let anyone who bought a $75 ticket bring his own marijuana and consume it on the enclosed patio of Space Gallery, a private event venue in Denver that the CSO rented especially for the concerts. But that was not sufficiently private for city officials. In a May 8 letter to CSO President Jerry Kern, Stacie Loucks, director of Denver’s Department of Excise and Licenses, warned that “the event, as advertised, could violate both City and State law.”

Loucks noted that Amendment 64 allows penalties for “consumption that is conducted openly and publicly.” She also cited a city ordinance saying “it shall be unlawful for any person to engage in any form of business or commerce involving the cultivation, processing, manufacturing, storage, sale, distribution or consumption of marijuana” unless he is licensed to do so. The implication was that the CSO, by letting concertgoers consume their own cannabis at Space Gallery, could be deemed to be running an unlicensed marijuana business. Loucks urged the CSO to cancel the concerts, saying the city would “exercise any and all options” to stop them from happening and warning that “failure to follow the law may result in civil and criminal penalties.”

Less than a week later, the CSO announced that it had reached a compromisewith the city: Everyone who had bought a “Classically Cannabis” ticket would receive a refund, and the concerts would proceed as invitation-only fundraisers. That solution represented real progress, says Christian Sederberg, a Denver lawyer who helped run the Amendment 64 campaign and represented the CSO in discussions with the city. “Before they never would have let anyone have marijuana,” Sederberg says. “They didn’t change their opinion under pressure. They looked at the law more carefully and basically realized that there is a distinction to be drawn here. We had an event that was blessed, and we were like, ‘OK, we can do this.’ It’s totally legitimate.”

Unadvertised, invitation-only events, of course, will not be much use to people visiting Colorado for a few days or a week. But Rob Corry, a Denver attorney and longtime cannabis activist, thinks the CSO compromise means the city should be OK with private, members-only clubs where people can consume their own marijuana. “The symphony has shown us the way,” he says. “It probably took a wealthy, yuppie, white institution to break that barrier, but so be it. The rest of us are going to follow that model.”

iBake members (Image: Jacob Sullum)

While the CSO made a big splash in the press and quickly attracted the city’s attention, iBake, a pipe shop and cannabis club, has been quietly operating in Denver since February 2013. Littletree Oppy, iBake’s co-owner, says the business qualifies as a tobacconist and is therefore exempt from the state’s smoking ban. Smoking and hanging-out privileges are reserved for members who pay a $10 monthly fee. Oppy says iBake, which sells soft drinks and snacks as well as marijuana paraphernalia, has not had any trouble with the city. But it caters mainly to locals and is unlikely to attract many tourists, especially since explicitly advertising a cannabis-friendly environment to the general public tends to set off alarms at city hall.

Surprisingly, Colorado Springs, which has banned the sale of recreational marijuana within its borders, seems to be more tolerant of cannabis clubs than Denver, home to about 60 pot stores. After several attempts at closing downStudio A64, a “cannabis social club” with the motto “inhale responsibly,” the Colorado Springs City Council decided the operation was legal. Colorado Springs has at least one other cannabis club: the Speak Easy Vape Lounge.

Invitation-only events and cannabis clubs are aimed at preventing consumption from being “public.” Another approach is to make consumption so discreet that it does not count as “open.” Although Louks’ letter to the CSO mentioned consumption of “edible marijuana” as potentially illegal, a cannabis-infused truffle or gummy candy looks just like the unspiked versions of those products. How can marijuana consumption be open if no one knows you’re doing it? Similarly, the vape pensused to consume marijuana concentrates look like e-cigarettes. Except for a quickly dissipating cannabis scent that people might not notice unless they are standing right next to you, these devices are indistinguishable from the ones that deliver nicotine.

“If you’re smoking a vape pen that looks exactly like an e-cigarette, or if you’re eating a brownie,” Sederberg argues, “you are not consuming marijuana openly.” He also thinks Denver’s definition of public is too broad. “‘Open and public’ was meant to be someone standing out here smoking pot,” Sederberg says, pointing at the sidewalk along a restaurant patio on Denver’s 16th Street Mall. “It was not intended to stop people here [on the patio], with permission from the owner, from smoking marijuana.”

Since Amendment 64 is now part of Colorado’s constitution, Denver’s definition of “openly and publicly” can be legally challenged. Although Sederberg thinks “there is a decent legal argument that ‘open and public,’ the way they’re interpreting it, is overreach,” for now he’d rather work with the city than take it to court. “They’re struggling with the idea of Denver becoming like Amsterdam,” he says. “They don’t want a coffee shop model.”

Still, Sederberg says, “if they set the floor in a place that we don’t agree with, you’ve got to look at the part of the amendment that says private landowners have the ability to prohibit or otherwise regulate marijuana consumption.” That ability, he says, implicitly includes the power to allow marijuana consumption as well as ban it. “We will continue to dialogue about it,” he says. “But if people are going to come here from other places to use marijuana, they need a place to do that.”

~Source: http://www.forbes.com/sites/jacobsullum/2014/06/19/colorados-cannabis-conundrum-marijuana-everywhere-but-nowhere-to-smoke-it/