Cultivation of Cannabis

We all love Mother Earth. Unfortunately, not everything springing forth from Mother Earth is legal. Marijuana plants are, of course, currently illegal in the State of Florida. But, that hasn’t stopped some citizens from transforming an empty bedroom into a “grow room”, or an empty house into a “grow house”. When the police find a grow house, they’re soon looking for someone to charge with an array of felonies including Possession of Cannabis With Intent to Sell or Distribute, Possession of Over 20 grams of Cannabis, Cultivation of Cannabis, and Trafficking in Cannabis (300 or more plants, at any stage of growth). Trafficking is the most serious of these charges, as it is a first degree felony carrying a minimum mandatory 3 year prison term.

Turning an average home into a grow house requires quite a bit of modification, as the watering system for the plants must flow throughout the house (irrigation pipes everywhere). The electrical system must be modified, as these plants typically use 1000 watt bulbs, and standard home electrical systems can only support one such bulb per room. And, once several 1000 watt bulbs heat up the room, it will be time to cool the place down with a custom air conditioning system (and, maybe some dehumidifiers as well). But law enforcement knows all of this, and they are monitoring the situation via the heat signature of the home, as well as the odd patterns of power and water usage (of course, gas generators are sometimes used, but the shear noise of it all often tips off neighbors).

There are numerous legal problems associated with charges of cultivating cannabis on the scale of a typical grow house. The main issues are: (a) the legality of the search warrant, and (b) proof of “possession”. Let’s start with the search warrant.

Search Warrant Problems in Grow House Cases

First of all, a grow house operation is typically busted by police via a search warrant signed by a judge. As such, the first line of attack involves examining exactly what the police told the judge in order to get a signature on their warrant. For purposes of our brief discussion, here’s a few common accusations:

1. “Humming” noise originating from the house or garage. The police always claim to hear a humming noise, implying that the noise is distinct to “grow lamps”–their ballasts tend to hum a bit.
2. Custom drainage pipes: PVC pipes coming out of the garage are commonly thought by police to carry the runoff water from the plants.
3. Odor of Marijuana: Like clockwork, most officers who suspect a home is a grow house will claim to smell marijuana as they approach the garage or front porch. Law enforcement must smell the cannabis in a location they are entitled to be. As such, if police explain to the judge that they smelled marijuana coming from the garage–what right did they have to examine the garage? The only right police have without a warrant is to approach the front door of the home. Wandering into the backyard some other vantage point may render their observations illegal.
4. Air Conditioning Units: Well, this is Florida, and things get hot down here. But, if someone has an extra AC unit outside, and they’ve built a special fence around it for privacy–chances are law enforcement will claim that the extra AC unit is further evidence of an illegal operation inside the home.
5. Video cameras: Yes, this is the United States of America. No, this is not China. Yes, security systems are considered by law enforcement to be some sort of evidence of wrongdoing inside the home.
6. Window shades: Some people just don’t like sunshine. It’s good for you, provides Vitamin D–but this is America–and we can shut our windows if we want to, right? Well, yes, but if the police can’t see inside the home, they will tell the judge that all the blacked out windows raise a suspicion of illegal activity inside the home.
7. Utility Bills: the amount of power and water a home consumes is well understood by utility companies, and law enforcement alike. Grow houses consume substantially more power than a normal home, and as such, law enforcement may add this incriminating consumption pattern to their Affidavit In Support of a Search Warrant. Sometimes, law enforcement is tipped off because the power line is illegally spliced to hide excessive power consumption.

So, if any combination of the above “legal” activities provides probable cause to believe that the house contains marijuana plants, a judge will sign the search warrant and the police will enter the home without permission. But, will the police simply rush over to the home and break down the front door? Not necessarily.

It may be of interest to some of you that Florida law enforcement were once using drug sniffing K9’s to sniff the front porches and doorways of suspected grow house operations. Law enforcement would then include the K9’s “positive alert” for drugs within their application in support of a home search warrant. The Florida case challenging this use of drug dogs is Florida v. Jardines, 133 S. Ct. 1409 (2013). The case went all the way up to the U.S. Supreme Court, and our highest court found this type of police work unacceptable. In essence, Justice Scalia found that homeowners permission to enter their front patio area is only granted for knocking on the front door, or trick-or-treating (for example). That permission does not extend to permitting police to use dogs (or other technology) to examine the front door or windows. For further details on how drug dogs are no longer allowed to be used in this way, read my article entitled “What Technologies Can Police Use to Look Inside Your Home?“

Problems With Proving “Possession” in a Grow House Case

This brings us to the second significant problem in proving a cultivation charge–the element of “possession”. Busting a grow house is nice, but if the police simply barge in and nobody is home, who will get charged with the crime? With nobody home during the search, whoever is unlucky enough to have the power bill and water bill in their name–they may be in trouble. Typically, the police will wait until they know somebody is in the home, then serve the search warrant.

When the police find multiple people within the grow house, the problem becomes one of constructive possession. A jointly occupied residence requires a higher burden of proof. Can the police uncover independent evidence that ties a home occupant to the illegal activity? Sometimes, the police search for which occupant has the keys to the front door. Other times, police obtain fingerprints from the grow house equipment, though, this is not very strong evidence. Or, the police may search for pieces of mail which contain an occupants name.

In one Florida grow house case, a defendant was convicted because his fingerprints were found on the front and back of a marijuana growing instruction sheet posted in the home. Ops. But, fingerprint evidence in such a case is not solid, and the charges were eventually thrown out. For details on how this conviction was overturned by the appeals court, take a look at my article entitled “What Do Fingerprints Prove?“

When the police barge in to serve their search warrant, the State can easily prove the folks caught inside the house had knowledge of the marijuana plants, but how do they prove who had “dominion and control” over the plants? Dominion and control is required to convict. Knowing that marijuana plants are present is not enough to convict, and you can find more details on this exact issue in my article “Can Knowing About Drugs = Conviction for Possession?” People arrested inside a grow house have the same “knowledge/dominion/control” issues as those drug cases in which the police raid a large party–find drugs everywhere–but still have to figure out who to charge, and who not to charge. For more information on just such a case, check out my article entitled, “Wild House Party, Drugs Everywhere, Who Get’s Charged?” And, for an interesting read on a grow house operator that actually answered the front door (can you imagine the smell bursting out that front door???), take a look at “Don’t Answer the Front Door.”