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Jim Flynn: 2013 Colorado ruling gives Sessions an opening to prosecute marijuana cases

By: Jim Flynn
March 12, 2017
photo - Jim Flynn - Business (2013)
Jim Flynn - Business (2013) 

Colorado's laws allowing for the possession and use of marijuana continue to provide the legal profession with enhanced income opportunities - and this is likely to continue.

That's in part because federal law still criminalizes marijuana and President Donald Trump and his new attorney general, Jeff Sessions, have said they intend to hot-up the enforcement of federal law, at least with regard to recreational marijuana. Furthermore, as a general proposition, federal law pre-empts (trumps?) conflicting state law. A case coming out of Colorado Springs and decided in January by the Colorado Supreme Court illustrates the state-versus-federal law problem, and may be the tip of a legal iceberg.

This case, People v. Crouse, began in May 2011 when Colorado Springs police officers arrested Robert Crouse and charged him with illegally cultivating and possessing marijuana. The police seized 55 marijuana plants and 2.9 kilograms of marijuana product from Crouse's home. Crouse's defense to the charge was that he was a registered medical marijuana patient and that, under the Colorado Constitution, he was authorized to cultivate and possess medical marijuana. Crouse's case went to trial, and an El Paso County jury acquitted him of the charge.

After his acquittal, Crouse asked the trial court judge to order the police to return his marijuana. His authority for this was a section of the Colorado Constitution that says marijuana seized by law enforcement officials, when there is a claimed medical use, "shall be returned immediately ... upon the dismissal of charges, or acquittal."

The People (aka the prosecutor) opposed this request, arguing that a return of the marijuana would cause the police to violate a federal law - the Controlled Substances Act - which prohibits the distribution of marijuana. The trial court sided with Crouse and ordered the police to return the marijuana.

The People appealed to the Colorado Court of Appeals, the next step up in the judicial food chain, and that court, in 2013, upheld the trial court's decision. The People then appealed to the Colorado Supreme Court, which agreed to hear the case.

The Supreme Court, in a 4-3 decision, reversed and ruled that a return of the marijuana to Crouse would, indeed, violate the Controlled Substances Act; an irreconcilable conflict existed between federal law and Colorado law; and federal law pre-empted Colorado law. Therefore, Crouse will not be getting back his marijuana plants or product (which is probably just as well since, after six years in police custody, they may not be in the best condition).

With this case now on the books, if Attorney General Sessions in fact begins to aggressively use federal law to prosecute people growing, selling and using recreational marijuana (or, say, providing them with fertilizer), the predictable outcome is legal chaos.

As a further enhancement to lawyer income, the Colorado Supreme Court decided two other marijuana-related cases in January of this year, again by 4-3 votes. In both cases, the court ruled that defendants charged with violating Colorado's marijuana-possession law as it existed before Amendment 64 became effective on Dec. 10, 2012, could no longer be prosecuted. (Amendment 64 made it legal to possess up to 1 ounce of marijuana for personal use.)

The three dissenting justices didn't think Amendment 64 should be given retroactive effect. If what these defendants did was a crime when they did it, they argued, shouldn't it still be a crime?


Jim Flynn is a private attorney with Flynn & Wright LLC in Colorado Springs. He is the author of three law-related novels. Contact him at

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