A “Growing” Trend
Folks have been using marijuana as a recreational drug for years and years. It’s a substance that grows “naturally.” And it is perceived by many as a harmless substance– Or, at least, far less harmful than the other “hard” drugs. There is probably some truth to this. Cocaine, heroin, crack cocaine, methamphetamines, opiates, etc., are far more addicting and have greater negative consequences. Even alcohol can have a more severe impact on the body than marijuana.
Individual states are beginning to legalize marijuana. The medicinal marijuana clinics in California are now mainstays. With the appropriate paperwork, virtually anyone can go to a clinic and get some pot. But the substance, however harmless, is still illegal in most states. And even in the medicinal marijuana states, federal law prohibits its use and possession.
In the realm of criminal defense, there is a trend emerging. Marijuana users want “quality” marijuana, but it is too risky and too expensive to buy. And often the marijuana sold on the open market is low grade. And the buyer has no clue what was done to it. Coinsurers don’t want “Mexican brown.” They want the good stuff. The solution? Grow it yourself.
It usually starts small. A user wants to have quality marijuana, so they decide to grow what they consume. This works for a while. But the operation almost inevitably expands. Friends begin grow operations in multiple houses. They help each other cultivate and harvest the crop. They then share the proceeds. Then, they begin to grow and cultivate more than they consume. They begin to sell some to close friends. They pay each other in marijuana. So it goes, and things quickly become very risky.
The problem with this is that things typically expand incrementally. People become comfortable around marijuana. They use is it regularly, they have more than they need, and they don’t even realize the risks they are taking.
They law has little sympathy for “personal consumption” growers. Cultivation of Marijuana is still a felony under Ohio criminal laws and the federal criminal system. When people “trade” services for pot, they are really trafficking in marijuana under the criminal codes.
There is also an attitude that “it’s just marijuana–after all, it’s not like cocaine.” But a crime is a crime, and prison is prison. To be sure, the penalties for possession and trafficking in the harder drugs can be more severe. But defendants are almost always surprised at the possible consequences of marijuana grow operations.
In federal court, defendants often face 5 or 10 year mandatory minimum prison sentences, depending on the quantity and scope of the operation. The relevant conduct (quantity of marijuana for which one is responsible) can quickly become unmanageable in federal court. Defendants working with others are charged with conspiracy counts. This means that one person is responsible for the quantities and conduct of the others. Equally troubling is the threat of money laundering charges. Whenever cash is exchanged for drugs, defendants face money laundering problems. State court can be equally severe.
The danger of here is that most don’t realize what they are getting into. As criminal defense lawyers, we hear this all the time. “It was just marijuana. I had no idea….”
Law enforcement officers find grow houses in all sorts of ways. As the operation expands, others become involved. Someone gets stopped in their car with some marijuana. They become informants and snitch on others to get themselves out of trouble. They tell the police about a grow house, a controlled “buy” is made by undercover officers, and the police make arrests. Or, the cops use the information from a snitch to get a warrant to search a residence where there is a suspected grow operation.
Sometimes police simply stumble into a grow operation. They may be called to a house on a suspected burglary or for a domestic violence incident. They smell the marijuana being cultivated, and it all unravels from there.
Other times police have a tip about a grow operation. They then simply watch the activity at the house. Sooner or later, someone slips up. They may even check the garbage or trash. They even watch electric bills.
The point here is that it is not legally safe to grow marijuana, certainly not in states where it is illegal.
We regularly represent those charged with possession and cultivation of marijuana. There are several main areas of attack.
First, we look to the Fourth Amendment. Often such cases involve a search and/or seizure. If there was a warrant, we start with the basis for the warrant and question the probable cause affidavit. If there was no warrant, we determine whether the police had a good exception to search the car, the person, the residence, etc. If there is a Fourth Amendment violation, we can argue to have the drugs, paraphernalia, or other contraband suppressed or thrown out of court.
Another avenue to mount a defense to a possession or cultivation case involves the element of possession. Generally, prosecutors must establish that the person charged had knowing possession of the marijuana. That is sometimes obvious. But other times it may not be as clear. For instance, where multiple houses are involved and multiple defendants are participating, it may not be obvious who possessed what contraband and who was involved in a conspiracy. This requires careful analysis of the facts and the law, particularly conspiracy law.
It is more and more common for those accused of drug charges to become informants. Basically, the defendant cuts a deal for leniency in exchange for testimony or information against others. Sometimes, this cooperation involves direct participation with law enforcement activities—recorded calls, monitored drug buys, etc. While common, this type of defense must be weighed carefully. We represent real people. The safety of our clients is tantamount. And any decision to cooperate must involve an assessment of the risks and the possible rewards.
Often, the facts and circumstances offer very little basis to mount a defense. Here is where experienced and respected criminal defense attorneys can make a difference. It is not a simple task to negotiate a favorable resolution of the case. The defense attorney must have a solid reputation, must be well-respected, and must have a complete understanding of the law and the case.
It is no simple matter to undertake a cultivation case or any other drug or narcotic case. At a minimum, those accused of this or any other crime should consult with an attorney immediately. It is almost always a mistake for defendants to make statements to the police or try to negotiate their way out of trouble without a lawyer. Only a government attorney or prosecutor has authority to engage in these types of negotiations. Police often convince defendants that they should cooperate and tell them everything. Only then, the police will say, can they expect leniency. Remember, however, that once a defendant makes a statement (true or false), it is almost impossible to take it back. But the opposite is not same. A person can almost always arrange a time to talk to law enforcement or prosecutors at a later time–Hopefully upon good advice from counsel.