State tracks pot plants with helicopters

Recent seizures raise questions about program’s legality

MASSACHUSETTS DECRIMINALIZED MARIJUANA in 2008, legalized medical marijuana in 2012, and is about to vote on legalizing recreational marijuana, but that hasn’t stopped the State Police and the National Guard from launching helicopter-led raids on homeowners growing pot in their backyards.

What makes the raids unusual is that they are conducted without warrants and rarely lead to arrests. National Guard helicopters swoop in low, spot marijuana plants, and then signal State Police on the ground who rush in, cut down the pot plants, and leave.

The raids are part of a $14 million marijuana eradication and suppression program funded by the federal Drug Enforcement Administration. Massachusetts received $75,000 this year under the program, up from $60,000 last year. DEA figures from 2015 indicate the program led to the destruction of 4.2 million marijuana plants, the arrest of 6,000 people, and the seizure of $30 million in assets. In Massachusetts, records indicate 3,138 plants at 116 sites were destroyed last year; four arrests were made.

The program garnered little attention in Massachusetts until recently when some of those targeted started crying foul. An 81-year-old Amherst woman with glaucoma said she lost a single plant in one of the raids. An elderly cancer survivor in Edgartown saw his patch of homegrown pot eradicated. An older Wendell couple, both registered medical marijuana patients, watched as their fully-budded plants were confiscated.

The Wendell couple, Patti Scutari and Francesco “Apollo” Compagnone, filed a civil lawsuit in Franklin Superior Court last week challenging the legality of the raid. Scutari said she lost a kidney and ovary to cancer, and uses marijuana to manage her condition. Compagnone suffers pain from back surgery.

Francesco "Apollo" Compagnone and Patti Scutari of Wendell.

Francesco “Apollo” Compagnone and Patti Scutari of Wendell.

Scutari and Compagnone said that on Sept. 13, after a black helicopter hovered at low altitude, five men in plainclothes entered their high-fenced yard, cut down their medical marijuana plants, and drove away with the pot in the back of a pickup truck. The raiders produced no search warrants, issued no citations, and made no arrests.

“They came onto lawful citizens’ land and seized property with no probable cause, no search warrant, no satisfactory exception to the search warrant requirement,” said Marvin Cable, a Northampton attorney representing the couple. “This is what our nation’s founders were seeking to avoid. This case is not just about medical marijuana, it’s about the government not respecting important civil rights.”

Cable said his clients were growing marijuana in full compliance with state law and regulations. He said the cannabis eradication program as carried out in Massachusetts is “fundamentally wrong and unconstitutional.”

State Police spokesman David Procopio said in an email that the outdoor growers who lost their plants this year are either violating the state’s controlled substances act, which prohibits illegal drug cultivation, or violating the home growing provisions of the medical marijuana law.

The state’s 2012 medical marijuana law allows registered patients, or their caregivers, to possess a 60-day supply, or up to 10 ounces, and provides for “hardship cultivation” of an unspecified number of plants within an indoor or outdoor “enclosed, locked area.” Regulations issued by the Department of Public Health specify that marijuana “shall not be visible from the street or other public areas,” although the statute itself says nothing about visibility.

Procopio said the plants seized in Wendell were “very large and easily visible from the Massachusetts National Guard aircraft used for aerial spotting in these operations.” He said no warrant is necessary for marijuana seized under the eradication and suppression program.

While the Wendell couple’s yard is surrounded by a tall fence, the front gate was not locked, and there was a section of fence missing that was simply covered by a tarp, Procopio said. He said the couple was allowed to keep some plants located in a greenhouse on the property because the structure is “enclosed and lockable.”

Procopio said police use discretion in deciding whether to charge someone growing marijuana illegally. “Several factors are weighed in determining whether we will seek charges, including the size of the grow, the purpose for which the plants are being grown, and whether the growers have a medical marijuana card,” he said. “While we use our discretion in deciding whether to charge, we do not have discretion as to whether we seize the plants.”

Procopio said seized marijuana is taken to a secure location at Massachusetts State Police headquarters in Framingham, and periodically destroyed by incineration. There is no need for third-party oversight of chain of custody for seized plants, he said.

“Those who oppose Question 4 like to claim that no one ever gets arrested for marijuana possession in the state, and that it’s a non-issue,” said Velerio Romano, a Boston attorney who has defended medical marijuana patients in state and federal court. “So does this bolster their argument or not?”

Northampton attorney Michael Cutler, also prominent in the field of marijuana law, said he believes police are strategically not filing charges against the small-time growers so as to avoid having to defend their actions before a judge. “It’s a smash and grab,” he said.

Police must generally obtain a warrant, supported by a statement of probable cause, before conducting a search or seizing property. Under exigent circumstances, or if contraband is found in “plain view,” police may justify a warrantless seizure, but any criminal suspect must still be brought before a judge.

With no arrest and no arraignment, there is no probable cause hearing, and no motion to suppress evidence, said Cutler. As such, he said, there is no judicial review of the program’s compliance with Fourth Amendment protections against unreasonable search and seizure.

Cutler said police are incorrectly interpreting the law and Department of Public Health regulations that limit growing to an “enclosed, locked facility.” Police, in asserting that the offending plants were in “plain view” from a helicopter, are assuming that such a growing facility needs a roof, he said.

An “enclosed, locked facility” is defined in the regulations as “a closet, room, greenhouse, or other indoor or outdoor area equipped with locks or other security devices, accessible only to dispensary agents, registered qualifying patients, or personal caregivers.”

Cutler, in an email, said “if the grow is secure and on the residence of a DPH-registered patient or caregiver, it is state law-legal and any seizure by state law enforcement is illegal, even with a state-issued search warrant.”

Romano said he believes police are still unwilling to accept the reality of medical marijuana. “In four short years, they still haven’t come around,” he said. “It makes you wonder how they’ll handle legalization.”

Northampton attorney Richard M. Evans, chairman of the Campaign to Regulate Marijuana like Alcohol in Massachusetts, which put Question 4 on the ballot, said he was troubled by the eradication program. “This isn’t law enforcement; it’s thuggery,” he said in an email.

The eradication and suppression program in Massachusetts is authorized by the governor, who every year submits a drug interdiction plan to the US Secretary of Defense. A plan from 2014, the most recent publicly available, was signed by then-Gov. Deval Patrick and former attorney general Martha Coakley, who certified that use of the National Guard was legal.

The plan identified heroin, prescription drugs, cocaine, crack, and marijuana as the state’s primary drug threats, and specified that the National Guard will supply analytical support, reconnaissance, civil operations, and specialized training to state law enforcement.

The plan showed an approximate $1 million budget, with $25,000 set aside for the cannabis mission and $180,000 for aerial reconnaissance support. It further guaranteed 175 helicopter flight hours during the growing season.

For marijuana eradication, the Guard agreed to provide infrared cameras, high-intensity outdoor lighting, and military global positioning equipment to the joint operation. Trained guardsmen would provide expertise in land navigation, map reading, rappelling, and surveillance operations. Guard personnel would train police in “spotting techniques.”

The plan said the Guard may conduct aerial surveillance and reconnaissance, provide training, and help coordinate operations; however, its personnel are not armed, do not perform arrests, searches, or seizures, and “do not conduct intelligence operations directed at individuals.” In addition, the National Guard does not become involved in handling evidence.

Under the marijuana legalization ballot question, large outdoor marijuana plantations would remain illega, but any adult could cultivate up to six home-grown plants. Home-grown plants would have to be confined to an area “equipped with a lock or other security device.” Minor infractions would lead to a fine and forfeiture, but not criminal prosecution.

Under the initiative, plants grown outdoors must not be visible from a public place “without the use of binoculars, aircraft, or other optical aids.” While that language might seem to protect law-abiding home growers from confiscation or prosecution based upon helicopter surveillance, Cable said he remained skeptical.

“What’s to stop them from conducting aerial surveillance on people suspected of minor regulatory infractions in their outdoor gardens, like growing 13 plants, or leaving their gate unlocked?” he asked. “Will their plants be confiscated? Will they be arrested?”

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Cable said the program, with its federal funding and institutional support, may have a life of its own, and that the Wendell lawsuit could shed some light upon the operation.

Mary Serreze is a writer and reporter living in Western Massachusetts. She can be reached at