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If the Netherlands is the Promised Land, then the United States is the Land of the Pharaoh. The 91 attorneys who registered for this seminar know full well that the courtroom tactics they'll be discussing in the next three days will seldom set their clients free. The art of defending a marijuana grower is the art of mitigating the inevitable penalties, especially if the defendant in question was growing in his home.
"In most indoor-grow cases, it's not a situation where you can say, 'No, my client wasn't growing,'" says William Panzer, an Oakland attorney who co-wrote the aforementioned Proposition 215. "It's usually their house, it's pot, it's obvious. They can't say, 'Gee, I didn't know my basement was full of plants.' So generally there's not much you can do to defend on the facts of the case."
When lawyers can't dispute the facts of the case, what's left to talk about? Challenging the search warrant in the hope of suppressing the evidence; establishing that the grow was for personal use and perhaps getting the defendant into a pretrial diversion program; and maneuvering, begging, and pleading to minimize prison time. (Of course, spending this kind of time on an unwinnable case is not something lawyers like to do for nothing. For the vast majority of marijuana growers represented by public defenders, a guilty plea is entered.)
Finding fault with police procedure is a basic defense strategy -- and one that allows marijuana activists to steer the debate into the waters of constitutionality. For example, while the power consumption of a house running rows of 1000-watt grow lights can exceed three or four times that of neighboring houses, this evidence doesn't necessarily indicate that marijuana is being grown. "When you look at the probable-cause affidavits that the state and federal agencies utilize to search people's homes, you see that what they're alleging could be a grow house for marijuana," says Fort Lauderdale attorney Norman Kent, who is himself a former member of NORML's board of directors. "It could also be, with the same indicators, a grow house for tulips -- higher electric bills; sealed, contained, colored and tinted windows; lots of air conditioners."
Similarly, St. Pierre recalls a New England case in which police used thermal imaging and power-company records to get a warrant to search a suspected grow house. It turned out the resident was a lobster fisherman who sometimes needed to store live lobsters in a huge tank in his basement. "The idea of the government trying to look through the electric bills of the citizens of any municipality to discern who is using legal products but growing illegal products under them is such a stretch from a constitutional standpoint," he asserts.
Miami Police Lt. Juan Garcia says that meter readers for Florida Power & Light often save police the trouble. "FPL will pick up the phone and call and go, 'Listen, this particular house here seems a little strange to us,'" he reports.
FPL spokeswoman Lynn Shatas says that generally the power company approaches police only if FPL personnel stumble upon something overtly odd in the course of reading a meter or investigating a house suspected of illegally bypassing its meter (which some growers do). "Florida Power & Light would not initiate something like this," Shatas says. "Usually the FBI or the DEA, through whatever suspicions or informants they have, would subpoena the records. We would run the records, and then they would look for any abnormal consumption."
Garcia emphasizes that such assistance is essential in locating major indoor hydroponics grows, because even though he has seen the operations get bigger, they're by no means big enough for law enforcement to infiltrate them. "These things are very difficult to investigate," he says. "Usually it's a close-knit group of people that are doing this. Often the police department discovers illegal drug activities by using undercover officers, but in these types of situations it's hard to get an undercover officer to join the groups involved in hydroponics."
If the police didn't exceed their authority during the arrest and all the evidence is admissible, all an attorney can hope to do is persuade the judge to impose the lightest allowable sentence. Under Florida law growers face felony manufacturing charges when caught with any number of plants. Anything over 50 pounds is considered a trafficking weight, increasing the potential penalty. But state statutes call for a mandatory minimum prison sentence (at least fifteen years) only for 10,000 pounds of pot or more. For all other amounts, judges are referred to the state sentencing guidelines, which offer a great deal of latitude. The age and prior record of the defendant, as well as the presence or absence of a weapon in the case, are among the variables. Sentences can range from probation or pretrial diversion to hard time in a state penitentiary -- it's up to the judge.
Federal judges, however, have little discretion in sentencing. Though any marijuana-growing case can be prosecuted federally, the mandatory-minimum sentences don't kick in unless at least 100 plants or 100 kilos are involved -- but these sentences are inherent in the statute. A federal conviction for 100 plants or kilos means 5 to 40 years' imprisonment. (Even though the sentencing guidelines were changed in November 1995 to more realistically equate one plant with 100 grams as opposed to one kilo, the five-year minimum for 100 plants still stands). One thousand plants? Depending on the circumstances, anywhere from ten years to life. Given these serious and inflexible penalties, state and local law enforcement agencies seem to prefer turning over drug offenders to the stern hand of the federal courts.