PARIS — In September 2014, a farmer licensed to grow and sell medical marijuana called police because he suspected people were sneaking onto his property, trying to steal the plants.
The local caregiver wanted additional patrols to deter them. Police asked to inspect the property to see where the thefts originated, and were voluntarily led to two growing areas.
After the inspection, police left, returning later with a search warrant. They seized part of the operation, alleging the caregiver was in gross violation of the state’s medical marijuana program.
The seized plants were valued at half a million dollars. Evidence was handed over to prosecutors; in a news release, arrests were said to be pending.
Nearly a year later, after months of closed-door negotiations, no charges have been filed and prosecutors have declined to seek an indictment. Two weeks ago, police burned the marijuana because it had rotted in storage.
Questions remain as to where the case stands and why, if no charges have been brought, the plants were not returned before they lost all value.
Paris Police Chief Michael Madden said police received multiple complaints over an extended period from neighbors, saying the King’s Hill Road operation had become a security issue and neighbors were complaining about the smell.
“When you can smell it from inside the cruiser on Route 117, that’s permeating the car,” Madden said. “You can only imagine what the neighbors are thinking.”
Though the law creates a “gray area” for police, Madden said, the haul “grossly” exceeded Maine Department of Health and Human Service’s rules. After consulting with regulators at the Maine Medical Use of Marijuana Program, he handed over the case to the state for prosecution on felony drug-trafficking and marijuana-cultivation charges.
And there it has remained. Assistant Attorney General David Fisher said Friday he could not comment on why talks had stalled. He said it wasn’t unusual for cases to drag if the law is complex and the sides are trying to reach an agreement.
If no settlement is reached by mid-August, Fisher said, a grand jury indictment would be sought.
Gregory Braun, the caregiver’s attorney, said he long suspected the plants had lost all value but never knew they were ordered for destruction, a move he described as “unilateral,” because it was never ordered by a judge.
A story previously reported by the Sun Journal on Monday, July 27, stated that the seized crop was burned after police were given a court order, but police have since clarified that the decision to destroy the plants was made by Fisher.
Braun said he would seek unspecified “forward action.”
The expansion of medical marijuana in 2009 was structured around two types of suppliers: eight highly regulated dispensaries that can grow plants for an unlimited number of patients, and about 2,100 caregivers restricted to growing for five patients at a time who supply most of the state’s medical marijuana.
State police, defense attorneys, prosecutors and marijuana advocates find themselves on common ground when it comes to advice on avoiding criminal charges: sell to patients with medical marijuana certificates and keep violations to a minimum.
The definition of “minimum” varies.
Catherine Lewis, director of education for Medical Marijuana Caregivers of Maine, an advocacy group that offers classes to caregivers on elements of the law, said legal flux may have some police reluctant to pursue minor violations but just what those are can be subjective.
“If they’re a legal caregiver and there’s a little overage, they’re out of compliance, but it’s not a crime,” Lewis said.
Prosecution of caregivers, while uncommon, is not unheard of.
In 2014 a Lewiston man was arrested when police discovered 412 marijuana plants growing inside his home. His caregiver’s license had expired six months earlier. In March, he pleaded not guilty to aggravated cultivation of marijuana, a Class B felony that carries up to 10 years in prison and a $10,000 fine.
In Waldo County, a licensed caregiver in Unity pleaded guilty to trafficking marijuana. Drug agents said he sold medical marijuana to nonqualifying patients. A county court clerk said the sentencing had been deferred until November.
According to the Kennebec Journal, on July 2 a broken transformer led police to raid a grow in West Gardiner where they found 79 plants. The caregiver, who was summonsed for cultivating marijuana, was permitted 18 plants, they alleged.
On July 16, a Warren man was arrested for being out of compliance with the medical marijuana program. Agents said the licensed caregiver sold to unqualified patients.
Yielding this past spring to calls to regulate caregivers more thoroughly, with the backing of dispensaries, DHHS announced plans to hire former law officers who, upon referral, can ask to inspect a caregiver’s operation.
Though there’s no definition of what a blatant violation might mean, the newness of marijuana legalization, coupled with uncertainty on the federal side, has Lewis’ group working with caregivers and law enforcement officials to come to an understanding.
“The law’s evolving,” Lewis said. “How can we adjust the rules of the law to reflect the needs of caregivers and law enforcement?”
The law allows caregivers to register up to five qualified patients with DHHS for $240 apiece. Caregivers can then grow — per patient, in separate areas — up to six plants and possess 2½ ounces of processed marijuana.
According to a search warrant, of the 173 plants seized in Paris, 63 were considered fully flowering and mature, 80 were immature and the remainder were unspecified.
The owner claimed three caregivers operated at the residence, each with five patients. Police said records showed only three patients on file.
Maine State Police Lt. Walter Grzyb said police have latitude on whether a case is a DHHS violation or a crime, and take each case as it comes.
“You can go into a house and find they’re a couple of plants over,” Grzyb said. “OK; you can see where an error is made. Other times, we’re talking a large number of plants and evidence of other stuff. You approach that different.”
He added, “It’s convoluted. We have some responsibility, DHHS has responsibility.”
For caregivers to be arrested or summonsed, they must seriously flout regulations or be engaged in other criminal activity, such as selling to the general public, said Maine Drug Enforcement Agency Cmdr. Scott Pelletier.
“They’re either selling marijuana to others, or have a blatant disregard for everything. There’s no conscious attempt on their part to follow the rules,” Pelletier said.
Under DHHS rules, growers are required to keep their operation out of the public eye, wall off each patient’s grows and tag each flowering plant with the patient’s last name. But Pelletier said such violations are not crimes.
“Most of the ones doing it within the letter of the law will never come to the attention of law enforcement,” he said.
DHHS spokesman David Sorensen said state regulators eye the difference in a similar way: selling to nonpatients or having more than the legally allowed amount is clearly criminal activity, while having no fence or incomplete paperwork is an infraction.
“We try to work with law enforcement to determine the best course of action; however, the determination to press charges lies with prosecutors and law enforcement agencies,” Sorensen said.
In 2015, two caregivers’ cards were revoked, he said.
“While any infraction, administrative or criminal, may lead to a revocation of cards or the right to participate in the program, it is usually not our first course of action,” he said. “We choose to provide technical assistance and education first to assist the program participants with achieving compliance.”
Portland-based defense attorney Timothy Zerillo, who has defended caregivers since legalization, said charges are typically only brought in cases of gross overages or unlicensed sales, though other infractions remain uncertain. What if someone sells to a qualified patient they haven’t registered with the state? If that’s the case, can police seize the entire crop, or just the overage?
“If it doesn’t meet the definition of patient, the state could certainly take a view it’s trafficking,” Zerillo said.
Asked whether drug agents would issue charges for a caregiver selling to unregistered patients who possessed legal medical marijuana cards, Pelletier said: “If we ran into that, and they have registration for two or three but are growing for more, I don’t think we would treat it as a criminal offense. Under statute, you could summons them civilly.”
Because marijuana production results in trimmings, spare plants, unsaleable buds, roots and other material, the law allows growers up to eight pounds of “incidental” marijuana per patient that’s “unprepared” and in various stages of processing, an unlimited number of seedlings and 12 nonflowering, female plants.
It’s not evident from the affidavit how much, if any, of the 18 pounds of marijuana seized in Paris was prepared or unprepared, and attorneys on both sides say confusion persists over applying the law.
Drug enforcement agents, Pelletier said, define “unprepared” as a harvested plant hung out to dry with or without the leaves removed.
“That’s why they say various stages. If you grow it, and it’s green, it’s not going to do you any good,” Pelletier said.
Zerillo said that although the language is vague enough to provide an escape clause when the police do come knocking, he cautioned that not every agency may see it the same way.
Though local police contact regulators for guidance, the decision to prosecute falls into the hands of the Attorney General’s Office.
Given unfamiliarity with the rules, Zerillo said his practice is shifting more and more to an advisory role, as perception of marijuana has shifted and fewer are charged with infractions.
For those who are, the risk is real: Fortunes and livelihood can evaporate overnight, with few options if the goods are seized.
The courts hold that property seized as evidence that is not integral to an investigation can be returned through a court motion. A similar provision in the law allows seized marijuana to be returned to the owner, though the request is nonbinding and easily denied if police think it is related to criminal activity. The Paris caregiver’s request was rejected on these grounds.
And though regulations exist for certain perishable evidence, there’s no requirement to maintain marijuana.
Grzyb said they store dried marijuana as evidence for the duration of the court case, but there’s no stipulation that green marijuana, such as a live plant, must be kept alive. Doing so would require a huge amount of space that would be permeated by the plants’ strong odor.
“We’re not taking care of live plants,” he said. “I don’t know of any agency that could.”
MDEA dries marijuana, Pelletier said, and couldn’t recall a time when marijuana was returned because a case was dismissed, in part because the overages they pursue are so evident.
Seeking damages against police for a seized crop is an uphill battle because law enforcement generally is immune from such liability, Zerillo said. A lawsuit has not been filed in the Paris case.
Auburn-based attorney Leonard Sharon said while there’s no definitive length of time police can hold onto evidence before they return it, court precedent has established police may hold seized evidence for a “reasonable” period, though, unless court action is taken, there’s no compulsion to return it.
Braun, the caregiver’s attorney, said they did not go down this route because a court case was not filed.
Destroying evidence before criminal proceedings, even if photographs are taken, is risky if physical access is a crucial part of litigation, Sharon said. It runs the risk of the case being dismissed on the grounds that neither the judge nor the defendant had access to it.
A practical solution, Zerillo said, is to always keep a copy of the law handy.
“Sometimes clients don’t understand, and I don’t believe the police do either,” he said. “It can destroy what someone has worked so long for and is their livelihood.”