Challenging Search Warrants Involving Marijuana Stems and Seeds
Trash rips. The low-hanging fruit of narcotics investigations. In terms of evidence gathering for the local drug task force, nothing beats the simplicity of stealing a homeowner’s curbside garbage bags at midnight and spending the rest of the shift rifling through the contents.
The goal? Like any prospector with a newly staked claim, the officers are mining for search warrant gold, often in the form of leftover marijuana stems and seeds.
If they hit pay dirt, their lucky strike, coupled with a few other allegations in a search warrant affidavit, will often result in written authorization to fully search the home, garage and vehicles on the property. That’s the real target of the investigation. Get inside the home and other private spaces and hopefully discover evidence of marijuana or other paraphernalia. Maybe even large amounts of cash and weapons if the stars are aligned.
Regrettably, when it comes to defending the charges that arise from the search, attorneys often concede the existence of probable cause for the warrant and focus instead on negotiating a resolution. While there’s certainly a time and place to pursue Plan B, the enormous upside of successfully overturning a search warrant should never be ignored. Zealous representation demands a fully developed challenge to the warrant in order to suppress all evidence seized and secure a dismissal.
How do the attorneys at GRL dissect an affidavit to undermine probable cause in situations involving stems and seeds? Here are a few issues that merit our attention:
- Single trash rip. If the task force is looking to cut corners and expedite an investigation, then it will apply for a warrant after only one early morning troll through the garbage, typically on the same day as the rip. Why is this problematic? Stems and seeds indicate consumption for as much as one week prior to the time the garbage bin is placed at the curb. Probable cause that marijuana will be found at a particular place dissipates quickly with the passage of time. One rip is not necessarily evidence of ongoing drug activity or probable cause that marijuana is likely to be found. Multiple trash rips that yield stems and seeds over the course of several weeks are more convincing.
- Small number of stems and seeds. The actual number of stems and seeds is critically important. In United States v. Briscoe, 317 F.3d 906 (8th Cir. 2003), 40 marijuana seeds and 25 stems, standing alone, were enough to supply probable cause. In another unreported decision, a different circuit held that a single stem is probably insufficient. Does the investigator specify how many under oath? Or do they simply refer to them in the plural form? The smaller the number, the less likely the court will find ongoing drug activity.
- Absence of other indicators of drug activity. Did the task force fail to uncover large Ziploc bags with residue, empty vacuumed packed heat seal bags, lengthy sections of PVC wrap, owe sheets or other evidence demonstrating something more personal use is occurring? If not, then this needs to be exploited.
- Vague and often unsubstantiated allegations. The task force is usually tipped off at the start of an investigation by tips from neighbors or other informants. Maybe its the odor of burnt marijuana or short term traffic near the residence. Whatever the reason, law enforcement usually takes the tipsters at their word and fails to conduct surveillance on the property. This is especially important in cases where the caller wishes to remain anonymous.
- Lack of field testing. If it looks like a marijuana seed, then it must be a marijuana seed, right? The court shouldn’t simply accept the officer’s opinion as truth. There should also be a positive field test for a presumptive identification included in the application. Furthermore, it’s also not difficult to document the change in colors with a Duquenois-Levine reagent test. What about cell phone photos of the dark blue or violet color visible after the second ampoule is broken and a grey upper layer over a violet layer after breaking the third? Should the court expect visual proof of a field test in the digital age?
- Lack of expertise in identifying marijuana stems and seeds. Does the affidavit detail the officer’s training with regard to marijuana recognition and identification? If there’s no field testing and no evidence of identification training, then the court has no supportive basis to conclude they came from marijuana. That means no probable cause to issue the warrant.
This is certainly not an exhaustive list. Some warrant applications contain misrepresentations or reckless statements by the officer while others employ stale information gleaned from working confidential informants. Regardless, we leave no stone unturned in the pursuit of justice for our clients in these cases.
If you or someone you know is facing criminal charges or has had property seized following a search warrant raid for discarded stems and seeds, then give us a call and discover more about how GRL defends search warrants. The choice of an experienced attorney for these specialized cases can make all the difference.
Oklahoma’s marijuana seed-to-sale tracking program unconstitutional, lawsuit alleges
A medical marijuana business has filed a lawsuit over the state’s seed-to-sale tracking program, alleging it created an unconstitutional tax and violates anti-monopoly laws.
Dr Z Leaf Cultivation and its associated processing and dispensary businesses asked the district court in Okmulgee County to create a class action, which would allow thousands of other cannabis companies to join.
If the lawsuit it successful, it could upend the state’s attempt to closely follow marijuana plants and products as they are grown, processed, packaged and sold to patients. Officials have said a tracking system prevents cannabis from leaving the normal — and legal — retail pathways.
Last year, the Oklahoma Medical Marijuana Authority picked Metrc to run a tracking program that follows marijuana products throughout the growing, processing and retail process. The lawsuit alleges the state improperly requires cannabis companies to participate in Metrc training courses, pay Metrc a $40 monthly fee and buy radio-frequency identification (RFID) tags for each plant and package, along with uploading information to the Metrc tracking database.
“Nothing in Oklahoma statute requires any medical marijuana business to use the seed-to-sale system selected by the state to carry out its auditing responsibilities, and
certainly nothing in Oklahoma statute requires those companies to purchase RFID
tags and pay monthly service fees to a company selected by (OMMA and the Oklahoma State Department of Health),” the lawsuit states.
By hiring Metrc, the plaintiffs said, Oklahoma’s marijuana businesses don’t have a choice in picking their own tracking system. The contract goes into effect May 1.
OSDH and OMMA declined to comment on the pending litigation.
Last year, OMMA Director Kelly Williams praised the selection of Metrc, a Florida-based company that operates similar services in more than a dozen other states.
“The seed-to-sale system will greatly expand our compliance capabilities and improve the effectiveness and speed of any future recall efforts. It will also allow us to detect unusual patterns that may indicate product diversion,” Williams said.
Metrc will charge each business $40 per month for the reporting service, and it estimates companies will spend about $705 a year for plant and product tags. The lawsuit, filed by Tulsa firm Viridian Legal Services, calls that estimate “incredibly conservative and likely fraudulent.”
The lawsuit also claims the $40 per month fee paid to Metrc is an unlawful tax because the state should use existing marijuana tax revenue to pay for that service.
“OSDH/OMMA is intentionally diverting tax revenue to purposes other than the
regulatory activity of the agency, and are trying to shift the burden of those expenses
improperly to Oklahoma medical marijuana business owners,” the lawsuit states.