A Colorado Supreme Court ruling this week has the potential to upend commercial marijuana licensing in Colorado, according to a Denver expert on pot laws.
In a 4-3 decision Monday, the state's highest court ruled that Colorado law enforcement agencies need not return pot seized during criminal investigations, even if the targets of those investigations are later acquitted.
The panel held that requiring the return of pot puts law enforcement groups into conflict with federal drug laws - potentially creating a risk they could be prosecuted as drug dealers.
By that rationale, the state of Colorado, through its regulatory system, is a veritable "drug kingpin," said Denver attorney Rob Corry, who has fought dozens of criminal cases related to pot and helped write Colorado's landmark Amendment 64, which legalized marijuana consumption for adults 21 and over.
"It is the state that is distributing marijuana, because the state is licensing individuals to act as its agents," he said, arguing that the decision undermines legal protections involved in pot production.
He added: "The decision could place in jeopardy this entire system that has been created through legislative action and Amendment 64."
Whether state regulators agree with that analysis is unclear. A spokeswoman for the state Marijuana Enforcement Division did not return repeated phone messages for comment. The Marijuana Industry Group, which represents a number of large-scale commercial growers, also did not respond.
The decision marks an about-face reversing years of common practice and negates a provision in Amendment 64 requiring that marijuana seized during criminal investigations be returned to its owners, as most other property would be, if they are acquitted of criminal charges.
Law enforcement groups in the Pikes Peak region say the decision eliminates concerns over liability for marijuana they seize while trying to uphold state law.
The case that led to Monday's decision involved Robert Crouse, a Colorado Springs cancer patient who was arrested in May 2011 for marijuana he grew to make oil he used in treatment of his leukemia.
After his acquittal at trial on drug distribution charges, a District Court judge ruled that Colorado Springs police return 55 plants and several pounds of marijuana seized during the raid on his home. The state Appeals Court later upheld the decision, setting up the lengthy appeal to the Colorado Supreme Court.
Crouse's attorney, Charles T. Houghton, did not return phone messages asking if Crouse plans to appeal the case to the U.S. Supreme Court, which accepts only a tiny percentage of requests for judicial review.
In Pueblo County, sheriff's officials involved in several large-scale pot busts last year had been storing marijuana in rented Conex storage containers in case they couldn't prove charges.
In 2016, the sheriff's office alone seized 7,256 pot plants, representing a major storage concern with potential health threats.
"It becomes a hazardous material as it molds and sweats and we have to have proper protective gear to handle it," said Pueblo County Sheriff Kirk Taylor.
In the wake of Monday's decision, Taylor said he would consult with the Pueblo County District Attorney's Office on whether his agency is cleared to destroy marijuana after weighing, testing and photographing it for evidentiary purposes. He didn't know when he might receive an answer.
In El Paso County, Sheriff Bill Elder previously cited the requirement as a potential stumbling block in pot-related investigations.
"We've been waiting for the supreme court decision to come down," he said in an interview on Tuesday. However, Elder denied that the easing of liability concerns over pot evidence would lead to an increase in enforcement.
Metro Vice, Narcotics and Intelligence, a joint drug task force involving sheriff's investigators and Colorado Springs police, have as many as 300-400 pending complaints over pot grows that may exceed what's permitted under the law, said sheriff's Lt. Joseph Roybal. He said drug agents would focus on giving suspected growers a chance to come into compliance first, ahead of any raids, and couldn't say how many raids were expected this year.
Elder said his agency would still need to obtain a court order before destroying marijuana held as evidence.
"We can't just arbitrarily destroy it," Elder said.
Fourth Judicial District Attorney Dan May reportedly cheered the decision this week, telling The Denver Post on Monday the state high court's ruling could help set a precedent for 20 states where marijuana has been decriminalized in some way. May couldn't be reached for comment Tuesday.
Jason Warf, a spokesman for the Southern Colorado Cannabis Council, said the group fears that the decision, in combination with new plant count restrictions for growers, would lead to a boost in pot raids. Any attempt to eliminate commercial licensing in Colorado would deprive the state of a potent source of revenue while sowing chaos in how pot is grown in Colorado, Corry said.
"You would have thousands of unregulated, untaxed, clandestine grow operations through the state," he said.
Gazette reporter Chhun Sun contributed to this story.