How Busting Illegal Pot Operations Has Changed Since Amendment 64
Law enforcement and experts say more evidence is required to get a search warrant now than pre-Amendment 64
By Theresa Wolf with reporting by Kara Mason
Prior to the passage of Amendment 64 the smell of marijuana might have been all that was needed to bust an illegal grow.
But now that Coloradans are allowed to grow their own plants for recreational use and upwards of 24 plants with a medical license, establishing probable cause to search a property where there is a suspected illegal grow often requires more than just the pungent smell.
Sam Kamin, a criminal law and marijuana law professor at the University of Denver who was appointed to a state task force to implement Amendment 64, said the amount of evidence needed to convince a judge is likely more in most cases because activity that was once illegal is now okay.
Kamin said indicators such as smell don’t stand by themselves anymore.
For example, he said, the smell of marijuana coupled with lots of out-of-state vehicles stopping at a home provides a stronger case than perhaps just one element that would lead law enforcement to believe there is illegal marijuana activity.
In Pueblo County where a concentrated number of busts have occurred over the past several months Pueblo County Sheriff Kirk Taylor said each case is different, but a variety of factors come into leading to a bust.
“It (getting the search warrant) depends on the tip and how accurate it is. Everything needs to be corroborated in every case,” Taylor recently told PULP.
There have been 35 arrests and 5,873 plants seized between March 14 and June 6. Blackened windows, a strong odor of marijuana and commercial size cooling and ventilation equipment has been cited in search warrant affidavits as reasons to believe that an illegal grow may be happening on a property, according to the Pueblo County Sheriff’s Office.
Taylor said that while fluctuations in electricity do seem to be an indicator of an illegal grow, his officers are relying less on that in the Pueblo County busts, but “the lack of proper documentation to support the number of plants grown, adds to the list of reasonable grounds required for a search warrant.”
That was the case in an April bust in Pueblo County located on Rock Creek Rd.
At that particular bust sheriff deputies checked in on Allen Whited, who held a medical marijuana card and doctor’s permission to grow 24 plants for him and his wife each — which is within the legal limits.
But as Whited explained to officers that the property belonged to Bradley Glavin the officers noticed a large structure consisting of two connex boxes covered by a four inch raised deck. They noticed electrical wiring and hoses connected to the structure. After making contact with Glavin on June 6, the officers reported that he was evasive in responding to their questions.
Since January 2014, when the drug was first permitted to sell in Colorado, the sheriff’s department has received 42 marijuana-related search warrants. Twenty-five were granted to officers between March and June. In those searches 35 people have been arrested.
Glavin’s suspicious behavior the day before had led the officers to apply for a search warrant, according to the affidavit. The search warrant was granted. After returning to the property on June 7, officers found and confiscated 245 plants and equipment related to illicit pot operations.
At another bust in April — which took place near the Desert Hawk golf course in Pueblo West — officers reported in a search warrant affidavit that an anonymous tip stated a house on Mangrum Dr. had black mold on the exterior of the house, the house was frequented by visitors and the homeowner had another property.
After some surveillance of the property, officers received another tip that said a vehicle and trailer was transporting a “large amount” of marijuana from the home. After a search warrant was granted to officers, 97 plants, 10 florescent lights, 63 marijuana plant clones and other grow-related tools were taken from the home.
Many of the warrants tell a similar story. The bust starts with a tip, officers survey and compile more information, a warrant is granted and copious numbers of marijuana plants are seized.
Taylor said there have been several instances of officers acting on tips that have turned out to be home grows within legal limits, too.
“I would be comfortable to say that we have walked away from half as many as we busted,” Taylor said.
After the first bust hit the press, Taylor said media coverage was able to educate residents on what to look for in a bust, and the tips and notes started rolling into his department
“When a complaint is received, a deputy can go to a home and ask questions but unless invited into a home, deputies are limited to only what they can see from the exterior of a home,” said Gayle Perez, the Pueblo County Sheriff’s Department public information officer.
In the Rock Creek bust officers were able to establish enough probable cause by talking to Whited and taking notice of the property.
“Our warrants go through the District Attorney Office and they will look them over and decide if it’s enough to get a judge’s signature,” Taylor said.
“They don’t have the legal authority to tell us yes or no. We have a professional relationship with them and we take suggestions from them as to what we should add or maybe (if) we don’t have enough or too much (information).”
Since January 2014, when the drug was first permitted to sell in Colorado, the sheriff’s department has received 42 marijuana-related search warrants. Twenty-five were granted to officers between March and June. In those searches 35 people have been arrested.
Taylor said he does not foresee an ending to illegal pot grows in Pueblo anytime soon.
“Pueblo is a friendly place to grow and the cost of living is low. Real estate is much cheaper here than other parts of the state, especially Denver, which affects profitability. The climate is very good and it’s a great place to live,” he said.
The sheriff added that potential growers should pay attention to local regulations and residents should remain watchful.
“If you’re going to engage in this type of industry, then you need to know the regulations and do it under the law. The citizens are going to continue to call in and we’ll continue to do our jobs,” Taylor said.
