Policing a Legalized World: Marijuana Growing, Searches, and Probable Cause

One of the things people often forget in debates about legalizing marijuana is that any effort at regulating a field creates interesting ambiguities. Our example-de-jour comes from the city of Arcata, where a lawsuit has been filed against the police for searching a house in which medical marijuana was grown. Here are the facts from the newspaper:

The claim -- based on injuries allegedly suffered by Sage and her late husband, Charles Sage, 67 -- alleges that Arcata Police officers unlawfully searched the Sages' Zehndner Avenue home early in the morning of May 27, when Sage opened her door to an officer disguised as a utility meter reader only to have about a dozen officers enter her home with guns drawn. No marijuana was found on the premises.


While officials declined to comment specifically on Sage's claim, they said law enforcement acts in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata's medical marijuana ordinance. However, they noted that most violators do so under the auspices of medical marijuana and that the foggy state of California's laws make enforcement a tricky endeavor.

Here's the problem: Arcata's medical marijuana growth is regulated by a land use ordinance "which allows for grows of up to 50 square feet and utilizing no more than 1,200 watts per residence." That is, while you need a CA card to be a medical marijuana user, you don't need one to be a grower. There is no approved list of growers anywhere, and Sage and her husband grew marijuana for Charles Sage's prostate cancer and other ailments.

So, what was the police doing there? Well, the basis for the search warrant was marijuana smell emanating from the house. But hey - in order to obtain a search warrant, there has to be probable cause that an offense is being committed. In a post-prop-215 world, growing marijuana in itself is not an offense; growing it in violation of the ordinance is. The smell alone does not furnish probable cause that an offense is being committed.

But what is the police to do? Is home search the only way to ascertain whether there is compliance with the ordinance? If the smell of marijuana does not imply illegal activity, then something more is needed. The police could stake the house and see if there is an unusually high volume of people coming and going; conduct undercover investigations; or do something of the sort. Interestingly, in Kyllo v. United States (2000), the Supreme Court banned the usage of thermal images to scan a house for heat activity (including marijuana growth lamps). The reasoning was that it's an invasion of one's home. Ironically, in a post-215 world, Sage's privacy would be less intruded upon through the usage of a thermal imager, that could tell the police whether she's growing the allowed amount, than through a full search of the house with guns drawn. This is an interesting example of the many enforcement dilemmas the police would have to cope with had Proposition 19, which allowed home growth for personal use, passed. And it is a reminder that legalizing drugs for personal use requires careful attention to detail.