It is soon high season in California, and law enforcement is in the air with helicopters looking for cannabis grows to raid before the harvest. Some marijuana crops are legal under California's medical cannabis laws, and some are grown outside those laws. Many counties are de facto nullifying prop 215 and sb 420 by enacting strict zoning requirements. From the air, all marijuana gardens look the same to a cop: illegal.
A mock up of an aerial disclaimer sign on a grow. Using Mr. Benno's well-groomed garden as source material.
When law enforcement sees a pot garden on private property, they see probable cause to search and make an arrest for illegal drugs. Their job is to bust people and let a judge sort out the innocent from the guilty. To the police, marijuana equals probable cause. Raid first, let the court ask questions later.
But does the mere presence of an MJ garden always equal probable cause under the law? Maybe not. Growers can take steps to eliminate probable cause in the mind of an officer (and in the mind of a judge deciding whether or not to issue a search warrant).
Many gardens have proper postings on the gate at ground level. Try posting on a sign that can be seen from the air:
- That your garden complies with Prop 215/sb420
- That there are medical recommendations for these plants
- The medical doctor's name & contact and the collective's patient #'s
- And just to be sure, point out that you have an attorney and know your rights.
Posting this information on a large sign or banner visible from the air, as well as on postings on the ground level, will give law enforcement the information they need, and will increase your odds that they may leave you and your garden alone.
There are precedents for rejecting the fruits of warrants issued without probable cause.
- People v Camarella (1991) 54 Cal.3d 592, 596. This case concerns the standard for determining whether a police officer acted in good faith in executing a search warrant. It took place up in Placer County. In the case, a Sheriff Deputy had a tip that a bartender might be a drug dealer, and the deputy got a search warrant based solely on the tip with no attempt at corroboration. The search was thrown out. The case references Leon below.
- U.S. v Leon (1984) 468 U.S. 897. The gist of Leon is that a reasonably well-trained officer should not apply for a warrant if he reasonably knows he cannot establish probable cause because that creates the unreasonable danger of an unlawful arrest. The fruits of a warrant issued without probable cause cannot be used as evidence of a crime. Even if a judge issues the warrant based on the officer's affidavit, the search can be tossed out.
Take steps to protect your garden and yourself by posting signs visible from the air for flyovers as well as on the gate and fenceposts of your garden for walkups. A sheet of plywood makes a good base for painting your aerial sign. Or you can order a 4×8 foot banner printed on bright vinyl material. Sample text for the signs and banners are posted above for your reference.
This is a recent method to defend your legal rights to grow medical marijuana on your property. It is not certain that the signs will deter law enforcement from raiding your garden. Nor is it certain that the presence of the signs will aid in your affirmative defense in court. The goal is to post something that indicates a grow is legal and can be verified, then you have a good argument that it can never equal probable cause for a search. Perhaps we will make new case law that can be used for years to come to defend the rights of medical growers in your position.
NOTE: This blog is intended to give a general outline of California law on medical marijuana and unlawful police warrants and searches. Marijuana under federal law is always illegal. For more specifics or if you have any further questions, you should contact a qualified criminal defense attorney.
For more information about your rights as a medical marijuana grower, sign verbiage, or to order signs and banners for your property, please contact attorney Joseph M. Tully at the California firm of Tully & Weiss Attorneys at Law.