Ex-suspects want police to pay for dead marijuana plants

September 20, 2008

DeeDee Correll, Los Angeles Times

DENVER -- When the Fort Collins police arrested James and Lisa Masters and carted away their 39 marijuana plants, they put the plants where they normally put confiscated property involved in alleged crimes: the evidence room.

And there they sat, without a grow lamp, water or pruning.

A year later, the case against the Masterses -- who claimed they used the drug for medical purposes -- fell apart, and a judge ordered the police to return their property.

"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."

Incensed, the couple asked the Police Department to reimburse them $200,000 for the destroyed plants. City officials refused, and the Masterses are now considering a lawsuit to compel the northern Colorado city to compensate them.

Of the 12 states that have legalized marijuana for medical use, Colorado stands out for its law specifying that police must not "harm, neglect or destroy" seized plants in such cases, said Noah Mamber, legal services coordinator for Americans for Safe Access, an advocacy group.

But in the eight years since voters approved the law, no law enforcement agency has had to grapple with that aspect of it, said attorneys familiar with medical marijuana cases.

"There's not a whole lot of case law on this, frankly," Vicente said.

Many situations are resolved without police seizing the plants because it becomes apparent to police that the suspect is authorized to have marijuana, said Rob Corry, another attorney for the Masterses.

In other states, police often destroy the plants during or after an arrest. But that may be changing, Mamber said. He cited a recent case in Burlingame, Calif., where police found a number of marijuana plants and confiscated them until they could find the owner and ascertain whether he was a medical marijuana user. He was.

Police in that case kept the plants less than a week. They didn't water or tend them during that time, Burlingame Police Capt. Mike Matteucci said, adding that the department is not equipped to serve as a nursery.

The outcome of the Colorado case, he said, could help define law enforcement's responsibilities in such matters. "It's uncharted waters here," Matteucci said.

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.

Those in the registry may possess up to 2 ounces of marijuana and as many as six plants, and caregivers may keep up to six plants for each person in their care. Because the Masterses were also serving as caregivers, Vicente said, they were allowed to have the 39 plants.

Because the Masterses weren't listed in the registry, police treated the plants as they would evidence in any other drug case, said Fort Collins police spokeswoman Rita Davis.

"At the time they were confiscated, they didn't have documents to prove it was medical marijuana. They have to have some proof," Davis said.

The Masterses' attorneys maintain that the law doesn't require people to produce documentation when claiming the marijuana is medicinal.

The law says that property should not be neglected or destroyed in cases "where such property has been seized in connection with the claimed medical use of marijuana." It does not specify a criminal penalty when the law is not followed.

In any event, Corry said, the Masterses did provide paperwork showing their doctors' recommendations that they use marijuana.

A judge eventually dismissed the charges, ruling that the police search had been illegal. Until then, the Masterses, who have since joined the state registry, continued to use marijuana provided to them by others, Vicente said. He argued that police should care for the plants they take just as they would an animal or child removed from a home.

"If the police take your pit bull, do they put it in an evidence locker for two months or do they take care of it?" Vicente said. "We plan on holding the police accountable. We're talking about people's medicine here."



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