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Cops Can Keep Your Pot, Colorado High Court Rules

By George Khoury, Esq. on February 01, 2017 | Last updated on March 21, 2019

A decision by the highest state court in Colorado may have far reaching implications for states that have legalized recreational and medical marijuana.

The big pot-law decision they reached last week has sparked national debate over whether law enforcement must return marijuana seized in criminal investigations. Basically, despite Colorado state law requiring law enforcement to return marijuana seized for a criminal prosecution if the prosecution fails, the court found that officers are not required to return marijuana as it would violate federal drug laws.

Federal Preemption

While many states have moved to legalize marijuana, recreationally or just medically, state law changes do not change federal laws. Under the Federal Controlled Substances Act, marijuana is still considered a dangerous drug and is categorized with much more dangerous drugs such as heroin. Because marijuana is still considered a federally illegal controlled substance, a person can be prosecuted under federal law even if what they were doing was perfectly legal under state law.

The Colorado court decision explains that requiring law enforcement to return seized marijuana is essentially requiring them to distribute marijuana in violation of federal law. While some might argue that returning a person's own property does not qualify as distribution, under the legal definition of drug distribution that argument will lose 10 times out of 10.

Details of the Case

The Colorado Supreme Court decision centered around the seizure of 55 marijuana plants and over 6 lbs of cultivated marijuana from a person charged with a felony under Colorado state law for cultivating over 30 plants. After the charges were dismissed, the defendant petitioned to have his plants and marijuana returned by law enforcement.

Although the defendant did receive his marijuana, the legal issue was one that the district attorney wanted to have finally resolved so that law enforcement wouldn't struggle with confusion over the legal requirement of returning seized marijuana evidence in the future.

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