This Saturday, while responding to a fire, El Paso County Sheriff (EPSO) obtained a search warrant on a home near the Carson-Midway fire, and found a fairly good sized marijuana grow. The ECFD likely smelled marijuana, of which they informed police (Which they are obligated to do), and this lead to the warrant.
This leads to multiple phone calls which leads to this blog post.
First: Does the fire department need a warrant to enter your home?
NO. Presuming they are responding to a “life-safety” issue. In this case, a fire. Because details of the case are unclear, we don’t know if this grow was on fire, in danger of catching fire, or just reeked of endo. If the fire department believes that your house is in jeopardy or poses a threat to public safety they can and will enter the home. This is not considered a search under the fourth amendment, and it doesn’t even become a search in Colorado if the fire department decides to bring the police along for their own “safety.” Now, in Colorado does the police department tip the fire department off as to who might need safety checks? Absolutely. Are they prevented from arresting people even though they have entered the home without a warrant? Definitely not. If your house catches fire, and you have marijuana in your house, depending on the quantity, you’re probably getting a call from the police – and depending on how you handle that conversation, you may or may not be getting a cool ride in a squad car and a poorly-made bologna sandwich.
Second: Do you have to let the fire department in if they come to your house for a life safety check?
PROBABLY, with the caveat that they cannot force entry into your home. All Colorado Municipal codes allow the fire department to check for life safety issues in a home though, and fire departments are allowed to bring the police with them during these checks. So what should you do? First off, call your lawyer. Hopefully, if he’s like me, he has his cell phone on 24/7 and is ready to walk you through the what you should say and what you should not say. Much like you learned on Law and Order, anything you say can and will be used against you in a court of law. Especially in a non-detention investigatory search such as the ones lead by the Fire Department. Hearsay doesn’t apply here for a multitude of reasons. Limit what you say to anyone at your house wearing a badge, or snitches, or just really anyone if you’re discussing dirt. The fire department is UNLIKELY to ask you questions about criminal activity, and more likely to ask you questions about power and water. If you’re stealing power, or water, or you had unpermitted work done in your home, let the fire department search your house, wait for them to politely leave, and then get rid of any marijuana you have growing above your six-plant limit, even if you have red cards. At which point the police come to investigate, you cannot destroy evidence – because it’s become evidence. There is nothing stopping you from destroying plants above your constitutional limit prior to a police investigation. Why do we do this? Because Colorado fire departments are mandated to call the police when they come across marijuana grows. You may have constitutional defenses available to you, you may not have them available to you, but unless you have sat down with a lawyer who specializes in marijuana law and marijuana criminal defense, you probably can’t be sure that you’re covered when the police show up at your house first thing in the morning.
Third: The police cut down all my fucking weed! I want to sue them!
Shit me too! But we can’t. In a case I handled, Young v Larimer County Sheriff the Colorado Court of Appeals held that Amendment 20, codified at Article 18 Section 14 of the Colorado Constitution does not entitle citizens to a private right of action when their marijuana is destroyed, EVEN though the Co. Const. holds that police may not destroy plants. A private right of action allows citizens to bring complaints against others in a court of law. The right to cultivate and possess marijuana, are not considered Fundamental rights under the Colorado Constitution. Fundamental rights, like illegal police seizures are always protected by the United States Constitution, and abrogation of those rights is protected, and suits may be brought under 42 U.S. Code § 1983, which Red Law happens to do as well. I challenged whether the right to possess and cultivate marijuana was a fundamental right in 2015. You can read about that here.