United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the following: (1) the City Defendants' Motion To Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [#40] filed June 20, 2014; (2) the Motion To Dismiss Amended Complaint [#42] filed June 20, 2014; (3) the Motion To Dismiss Amended Complaint [#44] filed June 20, 2014; and (4) the corresponding recommendation [#64] of the United States Magistrate Judge which was entered from the bench and is reflected in a transcript [#69] of that hearing. The plaintiff filed objections [#67] to the recommendation, and the defendants filed a response [#68] to the objections. I overrule the objections and approve and adopt the recommendation.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which the plaintiff objects. I have considered carefully the recommendation, the objections, the other filings in this case, and the applicable law.
The key question in this case is whether marijuana grown and possessed as medical marijuana and authorized under Colorado law is property protected under the Constitution of the United States. The plaintiff, David Mazin, was the owner of Medical Marijuana Connection, LLC (MMC), a medical marijuana dispensary and grow operation located in Colorado Springs, Colorado. In his complaint [#36], he alleges that on March 5, 2012, defendants Jeffrey True, Kristin Genta, and Erin Land of the Colorado Springs Police Department (CSPD) and Henry Hasler and Noel Peterson of the Medical Marijuana Enforcement Division of the state of Colorado executed a search warrant at MMC. Mr. Mazin says these defendants unreasonably cut 472 of Mr. Mazin's healthy, lawfully-owned medical marijuana plants while executing the search warrant. In addition, Mr. Mazin alleges, these defendants seized more than 15 pounds of refined medical marijuana products that were lawfully owned by him.
During the next fifteen months, the seized marijuana was stored at the CSPD Operations Center Annex. The defendants, Mr. Mazin contends, failed to preserve the quality of Mr. Mazin's seized marijuana property, rendering his medical marijuana plants and refined medical marijuana nearly valueless by the time the El Paso County District Court ordered, on June 3, 2013, that the property be returned to him. Mr. Mazin was never convicted of any criminal offense relating to his marijuana.
In his complaint [#36], Mr. Mazin asserts a claim for unreasonable seizure of his property in violation of the Fourth Amendment and Fourteenth Amendments and a claim for deprivation of property without due process of law in violation of the Fourteenth Amendment. In their motions to dismiss, the defendants argue primarily that the allegations in the complaint do not state a claim on which relief can be granted because any property interest Mr. Mazin may have in his marijuana is not a property interest recognized and protected under federal law.
In his recommendation [#64], the magistrate judge agrees with the defendants. The magistrate judge found that Mr. Mazin has no property interest in his marijuana which is recognized and protected under federal law. Transcript [#69], 52:5-58:24. This is true, the magistrate judge concluded, because under federal law, it is illegal for any private person to possess marijuana for any purpose. Transcript [#69], 53:10-18. Because marijuana is contraband per se under federal law, the plaintiff does not have a property interest in his marijuana which is protected by the Fourth Amendment or by the Due Process Clause of the Fourteenth Amendment. Transcript [#69], 53:10 0 18; 56:21-25, 58:22-24. After de novo review, I concur with the ratiocination of the magistrate judge.
Under 21 U.S.C. § 812(c), part of the Controlled Substances Act, marijuana is a Schedule I controlled substance. Under federal law, a Schedule I controlled substance "has no currently accepted medical use in treatment in the United States." 21 U.S.C. § 812(b)(1).
By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§ 823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 490, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001).
Gonzales v. Raich, 545 U.S. 1, 14 (2005). Absent an acceptable medical use recognized by federal law, marijuana cannot lawfully be prescribed by a practitioner. United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 491 (2001).
The status of a controlled substance as property is addressed in 21 U.S.C. § ...