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Saturday, September 27, 2008

Colorado cops may have to pay for seized marijuana plants

Colorado cops may have to pay for seized marijuana plants

Will police in Fort Collins, Colorado have to compensate a couple for a small crop of medical marijuana that was seized and left to rot in an evidence room? That seems like an unusual question to ask -- marijuana is illegal, right? -- but it's one that may well have to be answered in the positive according to legal provisions passed very deliberately by state voters.

Colorado has a fairly sensible system regarding the medical use of marijuana -- fairly sensible that is, short of simply recognizing people's right to grow, buy, sell and ingest whatever they please. But, given the limitations of the American legal environment, it's a decent law that allows the use of marijuana to alleviate a defined set of medical conditions, and even lets doctors and patients petition to add new conditions to the list.

In some states with medical marijuana laws, police have thumbed their noses at the public's laissez-faire sentiments and gone after people buying and using marijuana anyway. The assumption seems to be that a midnight raid and confiscation of plants and equipment are punishment enough in themselves, even if the courts dismiss all charges after the fact.

It's sort of do-it-yourself Prohibition.

The plight of James and Lisa Masters in Fort Collins isn't quite so clear-cut. They were clearly authorized to use and grow marijuana, but they hadn't made their status clear to the state for economic reasons.

In 2006, James Masters and his wife, Lisa, were arrested on suspicion of felony cultivation and intent to distribute. At the time, they were growing marijuana for themselves and for at least five other people with medical problems, their attorneys said. Lisa Masters, 33, has fibromyalgia and tendinitis; her husband, 31, suffers from chronic nausea and pain from knee and hip problems, Corry said.

Both had doctors' recommendations that they ingest marijuana for their medical issues, but they had not joined the state's registry, Vicente said, because they could not afford the $110 fee.

Without all the "i"s dotted and "t"s crossed, police felt justified in taking the Masters into custody and grabbing their 39 plants. Those plants then went into the evidence room, without air, light or water. That's not really a nurturing environment for a living crop -- a valuable living crop.

Fast forward in time after all charges have been dismissed and the charges ruled illegal. The Masters' property must now be returned to them. But ...

"All the plants were dead," said Brian Vicente, one of the attorneys for the couple. "Some had turned to liquid -- this black, moldy liquid. There was mold over everything."

This is a problem, because Colorado's Amendment 20, passed by the voters in 2000, specifically holds:

(e) 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 where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.

There's no penalty specified for police departments that don't follow the law, but that would seem to provide grounds for a lawsuit.

Such as the one the Masters have filed for $200,000 to cover the cost of their destroyed plants.

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