This Pot bust might have a greener lining

On Thursday, the Oregon Court of Appeals reinstated marijuana distribution charges against Amanda Orr and others. In February of 2011, the Washington County Circuit Court ordered all evidence seized by the police during a search of her home to be suppressed. The Court reasoned that the search warrant which authorized the search had been issued in error. Simply put, the warrant was not itself based on evidence that supported probable cause to believe that Ms. Orr and others were engaged in the unlawful growing and distribution of marijuana.

Ms. Orr was registered at the time with the Oregon Medical Marijuana Program and was authorized to grow up to six mature and eighteen immature marijuana plants at her home. Problems for Ms. Orr began when two unknown informants called the police to report their concerns that marijuana was being grown and distributed from the house. Police then call PGE who gladly shared Ms. Orr's power consumption records which documented greater than normal power usage. According to the police, this usage was consistent with seven metal halide lights growing between 28-140 mature plants. Police also observed suspicious foot and vehicular traffic at the home and witnessed an alleged hand to hand marijuana sale between two people, one of whom had recently left the home.

The trial judge, after carefully considering the evidence and discounting some of the police officer's obvious overstatements ( for example the power usage equivalence to lights and hence a number of plants) tossed the warrant as simply not providing enough evidence of the UNLAWFUL cultivation and distribution of marijuana.

Sadly, but not unexpectedly, the Court of Appeals took its best carving knives to the reasoned and principled holding of the trial judge - who by the way lives and works in the community at issue. The appellate court opinion is noteworthy in its desperate and far-reaching attempts to distinguish evidence of unlawful marijuana cultivation and lawful cultivation and relies on a facile analysis of the police officer's conclusions that led to the issuance of the warrant.

Sad, for Ms. Orr and her codefendants. But we think this case and the lengths to which the Court of Appeals goes to save the search may be a herald of changes to come as the lawful possession, cultivation, and distribution of marijuana continue to grow and develop in Oregon. You can only cut a fine hair so many times before it falls to dust.

If you are engaged in the cultivation or distribution of marijuana under Oregon law, we recommend you consult with an experienced criminal defense attorney before you have to retain one.

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