Pubdate: Fri, 27 Jun 2014
Source: Honolulu Star-Advertiser (HI)
Copyright: 2014 Associated Press
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Sadie Gurman, Associated Press
Page: A3

AUTHORITIES' LIABILITY INCREASES AS MARIJUANA REGULATIONS SHIFT

DENVER (AP) - 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 onetime 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.

Leaving plants behind carries obvious risks, said Jim Gerhardt of the 
Colorado Drug Investigators Association.

"It would be like arresting a cocaine dealer and taking a minuscule 
amount of the cocaine as a sample and then leaving it there for them 
to be used or sold," he said. "It's a complicated, messy issue."
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