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What determines a homegrow's jurisdiction?

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It seems for the most part that federal laws yield to state laws when it comes to cannabis. How does it work on the local level? Say a city has passed an ordinance that says possessing small amounts of cannabis in a private residence, whether growing or not, is not a crime. Yet the state is still illegal. Who has authority over busting a homegrow in that city?

Does the city ordinance offer any extra legal coverage in the case of searches by local or state authorities? For example, if small amounts of living plant are legal, then a drug sniffing dog's alert could be for a legal activity according to the city, or illegal according to the state. Same with garbage searches, a leaf in the city trash could be indicative of casual, legal possession. Could either of those forms of evidence be used to suspect probably cause of a larger than casual grow? Or would there need to be some other distinction before warranting any of these searches at all, knowing the local ordinance?
 

TorturedSoul

Member of the Month: May 2009, Oct 2010, Sept 2017
It seems for the most part that federal laws yield to state laws when it comes to cannabis.
I don't know about that. Federal law automatically takes precedence over all laws of lesser jurisdictions (state/county/city/etc.). See: The Supremacy Clause of the United States Constitution (Article VI, Clause 2) and the Doctrine of Preemption. This fact, in and of itself, is only right and proper. However, in many situations, this becomes unfortunate because the federal government has many laws (the technical term is statute: "Law" refers to the entire body of statutory, administrative, and common law provisions that regulate our society, whereas a "statute" is the specific, codified statement of some law that has been approved by the legislative body (and often endorsed by the executive body) of a government) that are unconstitutional. There are also laws that have no legal basis, so to speak. The obvious example - given the forum that we are on - are the federal statutes forbidding cannabis, which are alleged to be justified based on cannabis' status as a Schedule I narcotic. But by its own rules, cannabis is not properly classified as such, to wit, the substance in question must meet all three of the requirements - and cannabis clearly meets NONE of them.

But, be that as it may, try getting busted for growing 100 or more cannabis plants and see how fast you end up in US District Court :rolleyes3 .

How does it work on the local level? Say a city has passed an ordinance that says possessing small amounts of cannabis in a private residence, whether growing or not, is not a crime. Yet the state is still illegal. Who has authority over busting a homegrow in that city?
State statutes always take precedence over city statutes. Cities and counties have only those legislative powers that are expressly granted to them by their state's constitution or statutes. Now this generally holds true everywhere, BUT many states' constitutions include the concept of "Home Rule," either automatically or after certain qualifications are met. In layman's terms, this means that a municipality (e.g, city) may have the right to enact its own rules (ordinances) dealing with things that the state's body of law (state's constitution, state's statutes, et cetera) doesn't specifically cover. But, again, state law takes precedence over this "local law" - your local municipality's government cannot, by creating an ordinance, contravene a state law.

If you've ever been in the military, lol, you have probably experienced a form of this "legal oneupmanship," when your immediate superior told you to do a thing - or even that it was okay to stop doing a thing ("That's enough, private, you can take five.") and then his superior happened to walk by and tell you the opposite. And if you, at that point, refused - and gave, as your justification, the reply that your immediate superior told you that you could take it easy so you are NOT going to get back in that hole and start digging again, well... ;)

I'm rambling, I suppose.

Does the city ordinance offer any extra legal coverage in the case of searches by local or state authorities?
See above.

For example, if small amounts of living plant are legal, then a drug sniffing dog's alert could be for a legal activity according to the city, or illegal according to the state.
Interesting that you mention that. There have, historically, been at least a couple of municipalities that "legalized" cannabis to some extent when it was still illegal in the states that the municipalities were located in. On any level above the local municipality, these laws simply don't hold water. If you live in one of these places, are growing cannabis, and a state cop (highway patrol, other state LEO) catches you at it - and this activity is illegal according to your state - then the LEO is not only well within his/her rights to bust you, the officer is technically required to.

In practice, it may provide some incidental protection. By that I mean that these local ordinances are often passed as a way to stop the local LEO from spending some portion of the LEOs' limited time on such offenses when it is felt (by those in charge in said municipality) that the time would be better spent on other activities; catching inebriated drivers, for example, or fighting her0in trafficking. I suppose you could consider this to be just a little bit more official than the city's mayor calling the chief of police and saying, "You know, Fred, I really think we'd be better off if you guys concentrated on catching those junkies that have been breaking into cars downtown instead of worrying about folks who might be growing a marijuana[sic] plant or two in their closets." In that case, Fred might not think much of cannabis, say, "Sure, mayor, whatever you say," and then ignore the mayor - but if this has been codified by way of an ordinance, Fred would be (one assumes) much less likely to hassle small-amount growers who are otherwise not drawing attention to themselves.
 
Thread starter #3
Thank you TS. I realize federal statutes always trump state statutes, but I was wondering specifically about the Cole memos, suggesting federal LEO to respect state legalized cannabis programs. Jeff Sessions has since rescinded those memos, but at the time it seemed like federal law yielded to state law regarding cannabis. The feds certainly have the right to enforce their law in a legal state, but you never read about it happening. I was hoping the states followed a similar memorandum yielding to local ordinances.

Do you know how tips are handled in this situation? In a legal state, what do LEO do when someone calls complaining about the smell of pot or suspecting their neighbor grows? Do they show up to verify that everything's within regulation, or would they just let it go because it's no longer a crime or their priority? Would they forward tips on to federal authorities to investigate? In a legal city, if they received the same tip would they just ignore it, or be obligated to share the tip with state and federal authorites?

Does it just depend on who the tipper calls? Could a CO resident call up the feds and have them come investigate their state-legal neighbor? I know the feds could investigate the tip, but would they? You said they're technically required to, but that clearly doesn't happen so there must be some prioritizing.

It's probably too speculative and depends on the person receiving the tip, their judgement of how severe the crime is, their priorities, and the direction of the wind that day. Seems like such a fragile industry.
 
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