Federal laws make it vital to understand your rights
By Joseph Tully
Although medical marijuana is legal in 23 states across the U.S., it remains a crime under federal law. Further, many cash-strapped local jurisdictions have ordinances on how medical marijuana can be grown and shared. This makes for a perfect storm of federal cash funding local task forces to bust patients like you. You, your home, your assets and your freedom are all potential targets for a multi-agency drug task force.
Patients, caregivers, collectives and cultivators need to prepare themselves for when, not if, the law will come knocking. You have rights. Make sure your staff and patients are aware of their rights and establish a policy to follow them. Run drills role-playing scenarios so your patients and staff are truly prepared for the oftentimes harsh treatment that they will suffer at the hands of raiding law enforcement.
So what should you do when law enforcement shows up at your home or collective?
A search warrant is issued by a judge based on evidence presented by law enforcement. The judge will have seen witness statements and other evidence. A warrant is the result of the judge finding probable cause that a crime is being committed at a location, and that evidence of the crime will be found on the premises. A search warrant means cops are there to try to arrest someone. Everything you say and do once the police arrive can and will be used against you. Be careful, be safe.
If law enforcement agents claim to have a search warrant, you must let them in. They do not need to show it to you. They will break your door down if you do not open it.
Writing and executing search warrants are often complicated procedures and prone to error. To cover their bases, cops will present the warrant, and then ask, “Mind if we look around?”
This is a trick to get your consent for a search. Always tell them that you do not consent to a search, even though the warrant gives them permission.
Let them in, be polite and professional. Do not try to explain the situation. Do not describe what you do there. There is no “mistake” to clear up. The police are there to send someone to jail. Do not make their job easier. You must identify yourself and answer basic booking questions like date of birth and address. Otherwise, say nothing.
At this point, investigators are looking around, rummaging through your effects, and seizing evidence. Law enforcement will seize your cannabis products and inventory. They will destroy your plants, and they will take your computers and cash. Do not interfere with them, and have your attorney ask for an inventory of what was taken. You should keep digital backups of your papers and records remotely, perhaps saved on a cloud drive. If you have privileged documents, such as attorney-client communications, they should be stored separately and clearly identified. By now you should have called your attorney.
An experienced criminal defense attorney will help protect you and your rights. An attorney will make sure the search warrant was properly issued and executed, although judges nowadays are loathe to second-guess law enforcement, let alone overturn them. If you are arrested, an attorney will defend your status as a patient or caregiver, and also defend the documents, recommendations and records establishing your legality. Discussing your medical recommendations or caregiver status with law enforcement will only help them build their case against you. For example, if you say: “I have a recommendation to grow these plants,” the district attorney will present that to the jury as your confession for producing a controlled substance. Let your attorney do the talking.
Joseph Tully has more than 15 years of criminal law experience in California. He has extensive experience defending medical marijuana collectives, cooperatives, cultivators and caregivers facing criminal charges. His firm, Tully and Weiss, is based in the San Francisco Bay area, and handles cases statewide.