Access Denied

An outspoken medical marijuana patient with a license to grow her own plants is upset with federal agents for raiding her private garden before it could be harvested.

"The whole thing sucks," Melissa Larson tells SFR.

She's fuming mad after hauling water to her Taos County home all summer and then watching the plants get ripped out by Drug Enforcement Administration officers in September.

SFR has learned that the entire incident might have been avoided if the DEA had had access to a law enforcement hotline set up by the New Mexico Department of Health for state and local police officers to verify patients' licenses. Legislators, as it turns out, excluded federal authorities from using the phone number when they adopted the Lynn and Erin Compassionate Use Act in 2007.

"At the time we thought it would be easy for the feds to abuse the system," says Sen. Gerald Ortiz y Pino, D-Albuquerque, adding it might be time to change the law. "Especially if it will prevent bona fide patients from having their plants seized or being arrested unnecessarily."

In a rare media interview, Eduardo Chavez, the DEA Albuquerque office group supervisor, says his agents were unable to confirm Larson's license because their access to the hotline remains blocked.

"We understand lawmakers intended to protect patient confidentiality when they originally put the restrictions in law, but we'd use the hotline if we had access to it," says Chavez.

Kenny Vigil, a spokesman for the Department of Health, writes in an email to SFR, that the department can only allow the DEA access if legislators change the law. He also wouldn't confirm whether Larson is part of the state's medical cannabis program because the same law protects patient privacy.

Still, the DEA tries to get as much background information on persons of interest before approaching them. Chavez says they'd put the hotline on their investigative checklist if it was open to them. In some cases, after getting anonymous tips about marijuana growing or heavy foot traffic to a person's home, agents check with local law enforcement officers who might have already accessed the hotline and who are willing to share information from the database with them.

That wasn't the case this summer when a DEA unit spotted Larson's plants from the air en route to conduct aerial recognizance on federal forestry land. Along the way, a contract helicopter pilot told agents he'd seen plants growing on Larson's property for months. Back on the ground, the DEA decided to visit Larson.

"We did a knock and talk," Chavez tells SFR. "After she consented to a property search she admitted having two plants over the limit."

Larson, a textile artist and ecology activist who's been diagnosed with post-traumatic stress disorder, disputes that claim. She says she only allowed the men on her property without a warrant because she believed she was in compliance with state law. Larson insists she was only growing three mature plants and three seedlings, just below the state's limit of four mature plants and 12 seedlings.

Unlike local agencies, US Dept. of Justice rules prohibit the DEA from releasing incident reports or any pictures and videos documenting the raid; so, for now there's no way to determine how many plants were seized. Larson, who says she's unashamed of her garden, has not been charged with any crimes.

Larson has lots of supporters in the community including Medical Marijuana Radio show host Larry Love. He questions why the feds wanted to inspect her property in the first place. Love points to a memo written in 2009 by US Attorney General Eric Holder suggesting enforcement of federal marijuana laws should be a low priority as long as patients are in compliance with state laws.

"As patients, we must feel comfortable in trusting what the federal government tells us," says Love. "Once again, the trust is broken and we all should feel vulnerable to rogue DEA enforcement."

But without license verification, Chavez says his agents could not turn a blind eye to the number of plants in Larson's garden — even though it wasn't their original target.

"We would not be good law enforcement officers if we had tunnel vision," he says. "If we see it we're going to take it."

Chavez says there's only been a half dozen or so seizures from patients in the past 12 months and in each of those cases, patients, he says, were not following the state rules.

"Even with the new federal guidelines we are duty-bound to act. We are charged with protecting the American public from the devastation of dangerous drugs," Chavez says adding the DEA doesn't target medical cannabis patients specifically. "Just like we don't hang out in methadone clinic parking lots looking for heroin addicts."

The agents' raid on Larson's Embudo, property isn't the first marijuana seizure there. Court records show local authorities confiscated plants from her during a 2007 raid. She was charged with possession of a controlled substance and drug paraphernalia. Two years later, Taos County District Judge Sam Sanchez found Larson not competent to stand trial and dismissed her case.

Larson and her friends—who, by the way, helped replace her confiscated medication—all say they want Congress to change marijuana laws, and they're not alone. Just last month, Gallup released a poll showing a dramatic shift in the public's opinion on cannabis. In the months since voters in Colorado and Washington legalized it last year, pollsters have recorded a 10 percent jump in the number of Americans who support legalization—a record 58 percent now favor it.

"Spending billions of dollars and arresting 750,000 people annually for violating marijuana laws now represents not just foolish public policy but also an inappropriate and indecent use of police powers to favor one side of a cultural and political debate," says Drug Policy Alliance founder and executive director Ethan Nadelmann.

Ortiz y Pino agrees. He's already working to craft a resolution that will allow voters to consider changing the state's constitution to legalize pot. He says the proposal will be modeled after Colorado's own program. If it wins approval at the Roundhouse, he says, it would bypass the governor's desk. Instead, it would go straight to the ballot as early as 2016.

Larson, 57, doesn't want to wait that long.

"I'm getting older and just want to have a little garden and live in peace," she says, anxiously waiting to find out if she'll face either federal or state charges. For now, Larson wonders what happened to her plants. "No one has talked to me since the raid."

Peter St. Cyr is a freelance reporter who has been covering the medical cannabis program since 2007. Last month, he won an Emmy Award for Investigative Journalism from the National Academy of Television Arts and Sciences. 

Santa Fe Reporter