Why Police Can Ruin Confiscated Marijuana, Even If It’s Legal—And Why They Don’t Have To Pay For It

Last week, the sheriff’s office in Ventura County, California—a mostly rural stretch of rugged mountains and coastal plains directly north of Los Angeles bisected by two major freeways—delivered 25 pounds of what was once cannabis to Chelsea Sutula.

The cannabis belonged to Sutula, who’d last seen it in 2016, when Ventura County sheriff’s deputies seized the cannabis—worth as much as $350,000—and another $34,000 in cash from the Sespe Creek Collective, of which Sutula is chief executive officer.

In the ensuing five years, criminal charges against Sutula and her business partner were dropped. The money was returned. But as civil actions Sutula filed to have the cannabis returned wound its way through the courts, the cannabis simply sat around in an evidence locker—attracting bugs, mold, and slowly but surely becoming totally worthless.

That was the condition the weed was in when police handed the pot back to Sutula in brown paper bags, as the Ventura County Star reported.

The episode illustrates a lingering and still unresolved area of criminal procedure that, as cannabis is legalized in more and more states, is still unresolved by most state law.

Marijuana legalization means adults 21 and over in much of America can legally possess cannabis, and commercial legalization means businesses and individuals may often possess much more.

But police still often seize cannabis on suspicion on wrongdoing—and though state law in many instances requires police to return any wrongly confiscated personal property, including cannabis, there’s no uniform requirement that seized cannabis be stored properly.

And if it’s not, there’s no uniform requirement that police compensate a private citizen for the destruction of their property.

For years, police in many states have argued that requiring them to keep seized cannabis in a usable state—just in case it turns out to be legal—prevents them from effectively investigating grow operations that may turn out to be illegal.

Police in Oregon are required to keep cannabis in a usable state and pay its rightful owners compensation if it turns out to be legal, but this protection, granted by a 2019 state law, applies only to medical cannabis.

Other states don’t even do that much. In 2017, in a decision penned by a judge believed to then be on former President Donald Trump’s short list for US Supreme Court nominees, the Colorado Supreme Court ruled that law enforcement in that state “cannot” return cannabis seized “during the course of law enforcement duties.”

Returning legal cannabis to citizens from whom it should not have been confiscated in the first place is allowable only if “it complies with state and federal law.” Since cannabis is still illegal under federal law, the mere act of law enforcement returning it to a citizen is “similar to distribution of a controlled substance,” as the University of Colorado-Boulder reported in a news release.

But rulings in other states contradict Colorado’s conclusion—and one case demonstrates that police may choose to seize cannabis years after legalization.

In August 2018, in a case titled Smith vs. Superior Court of San Francisco, a man successfully sued the San Francisco Police Department to compel them to return 21.5 grams of cannabis seized from him after he was arrested for disturbing the peace.

Smith was arrested in January 2018—more than 13 months after possession of up to an ounce became legal for all adults 21 and over in California.

The appellate division of San Francisco County Superior Court ruled that state law requires California peace officers to return “lawfully possessed” marijuana to owners. And they may do so without any threat of prosecution, since police already “regularly handle controlled substances” during the normal course of their jobs, and since the Controlled Substance Act specifically grants qualified immunity to police “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.”

However, neither the decision in Smith nor state law specifies what condition the cannabis be kept in. A state law proposed in 2014 that would have mandated “reasonable compensation” for anyone whose legally possessed cannabis that was returned in a damaged or unusable state after police confiscation failed in the state Legislature. It has not been reintroduced since.

One justification why is that such protections are unnecessary after marijuana legalization. Police simply don’t seize small amounts from private citizens anymore, this logic goes—and with highly publicized seizures of tens of thousands of plants allegedly worth hundreds of millions of dollars commanding most of the attention, this may be mostly correctly.

However, the Smith incident from 2018—and in San Francisco!—suggests this is not always so. And though her case is believed to be an outlier, Sutula’s odyssey is a demonstration that legal cannabis operations do run the risk of unwanted attention from law enforcement.

With the 2018 Farm Bill legalizing hemp production, and with some hemp companies losing massive shipments of what they claim is a legal product to seizures by police, this issue extends to CBD and delta-8 THC companies as well as cannabis operations.

Sutula told the Ventura County Star she plans to sue the state and seek compensation. In this, she may have precedent on her side: In one instance, in 2010, the sheriff’s office in San Luis Obispo County in central California paid a medical cannabis patient $20,000 to compensate her for six pounds of cannabis seized from her and destroyed, to which she had a legal claim.

If Sutula sues, wins, and collects a check, police in California may be extra careful when choosing whom to raid and how—but absent federal legalization, it may be years before that same courtesy is extended to cannabis users in other states.