Local MMJ Cancer Patient Loses Fight Against High Court

~ by Beth Dodd ~


The six year legal struggle of a local medical marijuana patient has concluded with a losing battle in the Colorado Supreme Court, in spite of winning three earlier decisions in the lower courts. The ruling has broad implications for the marijuana industry in Colorado and in 20 other states where the pungent herb has been legalized for medicinal or recreational use.

Bob Crouse of Green Mountain Falls faced felony charges in May 2011 after his medical marijuana plants and laboratory equipment, which he was using to combat the pain from his cancer and to conduct medical research, were seized by police because he was growing more plants than the legal limit. He is a legal medical marijuana patient, but there was an error in the paperwork from his doctor which gave him permission for the extra plants. Crouse won his original criminal case in June 2012. He then sued to get his plants and equipment back and won. His ruined, unusable plants were returned in November 2012.

Crouse was drawn into a third legal contest when Fourth Judicial District Attorney Dan May filed an appeal of the court ruling to return Crouse’s plants. Both Colorado Springs and El Paso County filed motions asking to have the case moved into federal district court. Crouse won for a third time in December 2013. The Colorado Court of Appeals upheld the District Court’s earlier judgment that the Colorado Springs Police Department should return the medical marijuana seized from Crouse or compensate him for it. The value of the plants and equipment was estimated to be $300,000. The Mountain Jackpot newspaper outlined his fight in depth in an article published in May 2014.

No relief from the DA

However, May, who represents both El Paso and Teller counties, appealed Crouse’s case to the Colorado Supreme Court. Late last month, the state’s highest court ruled against Crouse.

The court concluded that Colorado law enforcement agencies do not have to return marijuana seized during criminal investigations, even when the people investigated are later acquitted. It is possible for Crouse and his attorney to appeal to the U.S. Supreme Court, but it is not known whether or not they intend to do so.

This ruling has broad implications for the marijuana industry in Colorado and beyond. The court’s decision was based on the idea that requiring law enforcement agencies to return seized pot puts them into conflict with federal drug laws, specifically the federal Controlled Substances Act, and puts them at risk of being prosecuted as drug dealers for distributing marijuana.

“The two (laws) cannot consistently stand together,” the Colorado Supreme Court ruling says, referring to Colorado’s Amendment 64 and the Controlled Substances Act. “This court has held that an act is ‘lawful’ only if it complies with both state and federal law. Here, the officers could not be ‘lawfully engaged’ in law enforcement activities given that such conduct would violate federal law.”

Three of the Colorado Supreme Court’s seven justices dissented. They contended that the Controlled Substances Act “immunizes federal and state officers from civil and criminal liability in the circumstances at issue here.”

But the final ruling by the court says Colorado’s medical marijuana amendment does not protect officers from acting unlawfully under federal law. The high court ruled that the “return provision” of Amendment 64 is “pre-empted and rendered void.”

This decision is a reversal of years of common practice and negates a provision in Amendment 64 requiring that marijuana seized during criminal investigations be returned to its owners if they are acquitted of criminal charges. But law enforcement groups in the Pikes Peak Region approve the decision. They claim that it eliminates their concerns about being held liable for marijuana that they seize while enforcing state law.

According to an article in The (Colorado Springs) Gazette,  El Paso County Sheriff Bill Elder said that storing seized marijuana is a potential stumbling block in pot-related investigations. Pot molds and creates potential health hazards in storage, and it requires special protective gear to handle it. However, Elder denied that the easing of liability concerns over pot evidence would lead to an increase in marijuana enforcement cases.

There may be as many as 300 or 400 pending complaints in Colorado Springs about marijuana crops similar to Bob Crouse’s that exceed the maximum number of plants permitted by law

May allegedly welcomed the recent court decision. In an article in the Denver Post, he said, “This case was important. There was a real conflict in the law. It made law enforcement officers nervous.”

May said the decision could set a precedent for the twenty other states that have legalized marijuana in some form or another, and it shows that federal law is dominant in this application. Under the supremacy clause of the U.S. Constitution, the Constitution is the supreme law of the land and Congress has the power to preempt state law.