DEA, Metro Drug Agency Allege Abuse of Medical Marijuana Registry
by Ari Armstrong, June 21, 2004
See Medical Marijuana in Colorado for links to more articles about this issue.
"They're making it harder for patients to get medicine," Larisa Lawrence said of federal drug agents after they searched her home and seized around 80 marijuana plants used to supply multiple medical marijuana users. "All I do is work with patients," Larisa said.
Larisa claimed -- and her claim has been disputed -- that agents threatened to lock Larisa, her husband Thomas, and Thomas's 72-year-old grandmother out of their house for six hours in the middle of the night unless they submitted to a warrantless search.
Larisa also said one officer invoked the war on terror. "One of the cops started yelling at me," Larisa said, and at one point that officer told her "the drug industry fuels terrorism."
Lt. Lori Moriarty of the North Metro Drug Task Force disputed several of Larisa's claims. Moriarty said the Lawrences had more marijuana than is allowed by the state's medical marijuana laws. She said agents from the Task Force and the DEA seized 84 plants at the Lawrences' house, plus "6.2 pounds of marijuana in the refrigerator." State law allows for two ounces and six plants per licensed patient, with exceptions. Moriarty said her agency has verified only four valid care-giver registries for the Lawrences. In a June 3 article for the Denver Post, Kirk Mitchell writes that Larisa "Lawrence claims that she is... a caregiver providing marijuana for up to 32 patients."
The June 1 seizures and arrests involved three homes, where agents from the DEA and the Task Force seized around 800 marijuana plants. The three homes were the residences of the Lawrences of Denver, Andrew Scott Fry of Arvada, and Jesse Griffin of Adams County. Larisa said she knows the other parties, though, she said, "We haven't been in contact with Mr. Griffin for several months."
Larisa also said her husband and Fry have gone into business together as house painters. The plant distribution among the homes was uneven. The DEA seized round 80 plants from the Lawrences. The split between the other two locations is unclear. Moriarty said, "Both of them were above 300, but I don't have the exact number on that."
Moriarty said the investigation began at the home of Griffin in Adams County. Her Task Force normally operates in the counties of Adams and Broomfield, she said. "There was some concern from the neighborhood" in Adams county, she said, which prompted the first search. Then Griffin mentioned the names of Lawrence and Fry to the police, so Moriarty's agency accompanied the DEA to the other locations. "We did call in Denver" concerning the Lawrence case, she said. "Whenever we're in a different jurisdiction, we make notification within that jurisdiction... Drugs are going to cross boundaries... I believe we might have had some [Denver officers on scene], but I can't confirm that."
Moriarty said that, while she was not at the scene of the searches, she was in close contact with the officers of her agency throughout the process. She suggested that Larisa's claim about the warrantless search changed after the fact. Officers told Moriarty the Lawrences were cooperative in allowing a search. Then, once officers found the marijuana, "I agreed, let's go ahead and seize it," Moriarty said.
In his Denver Post article, Mitchell claimed two of the parties "are registered to grow the plants for medical purposes." However, a story published the same day by the Rocky Mountain News claimed, "Four licensed medical marijuana growers were arrested Tuesday night after almost 800 pot plants were found in their homes, North Metro Drug Task Force officials said." Mitchell reported, "The numbers of plants at each location exceeded the amount allowed by state law, [Jeff] Dorschner [spokesman for the U.S. attorney's office] said... Larisa Lawrence, spokeswoman for Caregivers for Safe Access... said that although she did not have all of her [medical marijuana] registration cards on hand, she can produce them."
On June 17, Dorschner said "I cannot" give the number of plants for each residence. He said the case is an "ongoing federal investigation." He said, "[A]s I understand it, it involved the North Metro Drug Task Force," the "only other agency I'm aware of" involved in the seizures, besides the DEA. He said it is an "ongoing investigation" as to why the three parties were part of the same action, and he said "I do not know" when or if charges will be filed.
On June 18, I contacted Bob Grant, the District Attorney who covers Adams County. He said, "We haven't got a case yet" from the police. He said he doesn't know whether federal or state charges will be filed against any of the parties. "It depends on what the investigation shows," he said. He also said he doesn't know the distribution of plants, though the number is allegedly more than what the medical-marijuana permits allow. He said the North Metro Drug Task Force may bring a case to him for the Adams County location.
Today, though, Moriarty said she anticipates federal charges will be brought in all three cases. She said, "It's just as easy... to just go federally... Sometimes it's hard to split up [cases]... when the groups are somehow connected."
In a follow-up conversation today, Dorschner said a search warrant was issued for "none of the three" residences. Dorschner said of the U.S. Attorney's office, "We provide legal advice to the DEA" and "coordinate closely" with the agency in the event of prosecution. I asked Dorschner if the U.S. Attorney's office was in contact with the DEA before or after the searches. "I believe after," he said. When I asked Dorschner about Larisa's claims about the search, he said the DEA "obtained consent." He granted, "Everybody has the right to say 'no'" to a search if police do not have a warrant. When I suggested the "consent" might have been coerced, Dorschner said that's a "possible mischaracterization... I do not know the details." He said I was interjecting my opinion.
If charges are brought, whether they are state or federal charges is crucially important. In 2000, Colorado voters approved a medical marijuana provision to the state's Constitution. That law defines a "primary care-giver" as "a person, other than the patient of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition." The law further specifies, "'Registry identification card' means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient's primary care-giver, if any has been designated." Further, "[A] patient or primary care-giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense..."
State law allows for up to two ounces "of a usable form of marijuana," along with "six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana." However, "For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition."
Thus, under state charges, the defendants would be able to tell the jury about the medical use of the marijuana. Under federal charges, the defendants may be prohibited from bringing up the medical use, since federal law fails to recognize a medical use of marijuana.
If the Lawrences are charged under state law, then, their case brings up several legal questions. First, did the couple provide marijuana solely for medical use, as they claim? Second, did their patients officially designate the Lawrences as their care givers, and how many did so? Third, is the amount of marijuana covered either by the numerical amounts recognized or by the "medically necessary" clause? If charged federally, none of these questions is likely to be considered.
This case raises a number of troublesome questions.
First, is it fair to group the Lawrences with the other two parties, who allegedly had many more marijuana plants?
Second, would it be appropriate to charge the Lawrences federally, given the state's recognition of affirmative defenses for the charges?
Third, is it appropriate to charge any of the cases federally, given the American principles of federalism? The only plausible Constitutional argument for federal charges would be rooted in the commerce clause, but only if one of the parties sold or transported marijuana outside of Colorado. (I believe even that reading of the commerce clause is overly broad.)
Fourth, why did an officer allegedly invoke the war on terror in a seizure involving home-grown marijuana? Even though some drug sales are linked to terrorism-- an unfortunate fact I have attributed to the prohibition of drugs -- these cases were not so linked.
Fifth, did drug agents abuse their power to conduct warrantless searches? Moriarty wasn't on the ground, so it's difficult to tell if her officers were giving her the complete story about how they obtained consent.
Sixth, more broadly, given other important priorities, including the threat of terrorism, why are state and federal agents spending resources to go after gardeners, and why do state and federal legislators allow them to do so?