Weed Like Some Compensation

Obiter Dicta

Couple Claims Cops Harshed Their Mellow by Confiscating Pot Plants, Returning Them Deceased

February 2008 Issue
By Brian Sullivan

When child welfare workers came calling in August 2006 at the Fort Collins, Colo., home of James and Lisa Masters, the police came with them, as the welfare agency’s policy dictates. The Masterses admitted to having numerous marijuana plants on the premises—which they claimed were for medicinal use—so police obtained a search warrant and confiscated 39 plants, as well as growing equipment.

Because the Masterses were not on the state’s medical marijuana registry list at the time, they were arrested and charged with felony cultivation and felony intent to distribute. In June, charges against the couple were dismissed after the search and seizure were ruled illegal.

The Masterses, citing numerous documented medical conditions, paid the fee to be on the registry. In December the plants were returned to them—dead. The couple reportedly plans to take legal action against the police department to be compensated for the value of the plants, which their attorney, Brian Vicente of Denver, estimates to be $100,000.

Vicente cites a provision of the Colorado Constitution that forbids destruction of medical marijuana or related equipment while in the possession of law enforcement officials.

Rita Davis, spokeswoman for the Fort Collins Police Department, says that police acted properly because the Masterses were not on the registry list at the time of confiscation, and that this should be treated as any other contraband case.

“A requirement to keep the plants alive,” she says, “did not pertain.”

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Posted by Howard J. Wooldridge - Feb 5, 2008 06:11 pm CST

As the property room officer of a small police department, I knew of my obligation to care for and maintain any item I was made responsible for. A mink coat had to be kept free of moths. A car should be started on a regular basis, etc.

That said, I do not believe the med marijuana couple had a reasonable expectation of the same level of care. At the time of the confiscation, they were clearly in violation of state drug law. Thus, no legal obligation to keep the plants alive.

Under limited legal immunity granted at least to the police in Michigan where I worked, the officers and the department should be held blameless.

NOTE: The plaintiffs could argue that once the CJ system determined there was would be no prosecution sought because the couple had registered themselves as MMJ patients, IF, IF the plants were still alive, the officers might have an obligation to take care of them, from that moment forward.

Detective/Officer Howard J. Wooldridge (retired)
Edutcation Specialist, LEAP

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