Earlier this month, Seattle police raided a Leschi residence for a suspected illegal marijuana grow. They didn't find one.
The case has raised questions of why police took such action when officers' evidence that there might be a grow operation there was a window fan and an odor they thought came from marijuana plants. The case also underscores the difficulties police have telling the difference between an illegal pot grow and a medical marijuana grow.
"There's no way for police to know if someone's a medical marijuana patient or not; there's no registry that exists," Sgt. Sean Whitcomb said.
But Alison Holcolmb, drug policy director of the Washington ACLU chapter, said police didn't follow their own guidelines to address whether the person was a medical marijuana user and failed to do basic investigative steps.
In 2008, the state Health Department set a final rule defining a 60-day supply of medical marijuana at 24 ounces and up to 15 plants.
To read a copy of the police search warrant's affidavit, the warrant and the return, click here. The documents were made public this week in King County Superior Court. Because the person searched was not arrested or charged with a crime, seattlepi.com has redacted his name and his address.
On Oct. 13, an officer investigated a report of drug activity. Someone had complained and wanted to remain anonymous out of fear of retaliation. The complainant thought marijuana was being grown inside an apartment because of the smell and because a window was boarded up with a fan inside. Police said they contacted that individual and heard the details in person.
The officer and his sergeant investigated and found a window covered with a wood board that had an 8-inch hole with a dark circular fan inside it.
"I could tell by the shape and angle of the fan's blades that the fan was directed to vent air outside of ... the window, rather than pulling air inside of the window," Officer Tyrone Davis wrote in a search warrant affidavit.
"I believed based on my training and experience that the room possibly contained marijuana plants because it is common for marijuana growers to utilize a fan and other ventilation equipment in order to clear the excessive odor emitted by the plants, the excessive smell and fumes from pesticides, fertilizers and other horticultural chemicals used to promote marijuana plant growth, but mainly to remove excessive heat, humidity, and air that contains too much oxygen generated inside of grow rooms from plants, bright high-wattage bulbs, and other related electrical equipment."
Davis and the sergeant reported a smell that they thought was consistent with marijuana grow.
"If you had a large-scale marijuana grow, every window would have been covered and large traffic would have been coming in and out of the residence," Holcomb said.
Police say criminal drug grows can occur even in apartments and point out a deputy prosecutor and a Superior Court judge agreed that they had probable cause to search for a criminal drug grow.
The search warrant was approved Oct. 18, but court documents show no property was seized.
The Stranger's Dominic Holden first wrote about the search Wednesday and revealed the man living there uses medical marijuana to treat intractable pain resulting from being hit by a car in 2005 while walking down East Pine Street.
"They were able to see the full extent of my pathetic grow," the man told Holden about his two plants. "There were four little nuggets of bud the size of your pinkie on one and five on the other. They're about 12 inches high."
Holcomb said the officers rushed the raid and shouldn't have rammed the door of the man -- a Gulf War veteran who was put on the floor at gunpoint. Holcomb said he hasn't been sleeping well since the incident.
"The information presented in the case make their claim that they had reason to believe there was criminal activity utterly untenable," she said. "What facts were present in this case to suggest officers were in any danger just because this was marijuana?"
Holcomb said officers could have knocked on the man's door, determined he was a medical marijuana patient and avoided the raid. But police say they don't initially do what officers refer to as knock-and-talks -- asking possible suspects about potential drug operations because of safety concerns.
"A lot of people who grow marijuana for criminal enterprises are dangerous, " Whitcomb said. "People who grow marijuana for medical purposes are not."
Whitcomb said the search conducted with members of the East Precinct Anti-Crime Team -- not SWAT -- and also said automatic submachine guns were not among the guns the officers had, as reported in the Stranger.
Anti-Crime Teams were formed in the 1980s, developed to address the city's large number of crack houses that were overwhelming the narcotics unit. The teams give precinct commanders a tool to address issues happening in a neighborhood, and unlike patrol units, members aren't required to respond to 911 calls.
They don't wear normal patrol attire: typically they wear all-black uniforms. Someone promoted to the Anti-Crime Team goes through a 30-day trial.
The search warrant does not indicate officers investigated the man's electrical bill -- a move done in some cases to determine a possible criminal drug grow.
Nor is there any indication in court documents that police had any evidence of drug dealing from the apartment.
The search warrant affidavit was approved by a King County Deputy Prosecuting Attorney and signed by Superior Court Judge Andrea Darvas.
"At the end of the day, this person did nothing wrong and neither did we," Whitcomb said. Police say the difficulty comes from not clearly being able to tell when someone has up to 15 plants allowed by law.
Holcomb said police have already sat down with medical marijuana authorities to determine guidelines to differentiate criminals from medical marijuana patients.
In 2003, Seattle voters passed an initiative making the investigation, arrest and prosecution of marijuana offenses, when the drug was intended for adult personal use, the lowest law enforcement priority.
Medical marijuana has been legal in Washington since 1998. Seattle City Attorney Pete Holmes has a policy of not filing charges for simple marijuana possession.
October 28, 2010
By CASEY MCNERTHNEY