Wendell medical marijuana seizure worries residents, town officials

  • A tall fence obscures the street view of Patti Scutari and Francesco Compagnone's Wendall home, which state police raided in early September, seizing ten medical marijuana plants.

  • Just one vine of the 10 medical marijuana plants Francesco Compagnone and Patti Scutari were growing remains after state police seized them earlier this month. RECORDER STAFF/TOM RELIHAN

  • State police seized Francesco Compagnone’s and Patti Scutari’s medical marijuana plants earlier this month. RECORDER STAFF/TOM RELIHAN

For the Gazette
Published: 9/30/2016 5:53:01 PM

WENDELL — Patti Scutari and Francesco “Apollo” Compagnone thought they were doing it all by the book when growing their own medical marijuana in a home garden.

They said they “went out of their way” after obtaining their licenses two years ago to ensure they were doing everything in accordance with the law. The marijuana they were growing — 10 plants’ worth — was intended to help Scutari cope with the lingering effects of kidney cancer and surgery, while Compagnone used it to deal with pain from a back surgery.

But the Massachusetts State Police took a different opinion of their home-grown personal marijuana patch earlier this month.

David Procopio, a spokesman of the Massachusetts State Police, confirmed Tuesday that the state police raided their property on Sept. 13 after the plants were spotted in the couple’s yard during a helicopter flyover by the Massachusetts National Guard Counter Drug Team working under the Domestic Cannabis Eradication and Suppression Program.

Until Tuesday’s confirmation, the couple was unsure who exactly the men who raided their garden worked for, though they identified themselves as “state police,” Scutari said.

The couple was not charged with any crime, Procopio said, since each case is weighed based on the size of the grow and the purpose of its eventual use. But they did lose the entire crop, which Compagnone said took “six months of hard work” to produce, just before it was ready to be harvested. It represented what they’d hoped would be a year’s supply of medicine.

“You can only do it once per year,” said Compagnone, who preferred to grow his marijuana outside because he does not use electricity beyond a small solar panel and said the “life force” of the sun makes for a more effective product than that available at a dispensary.

Procopio said the anti-marijuana program is paid for by the federal Department of Justice, and conducts its operations across the state utilizing a helicopter spotter. The chopper flies “within federal guidelines for altitude,” and the spotter establishes probable cause to search a property, Procopio said.

Procopio said the police raided the couple’s property because the manner in which they were growing — outdoors, in an area that wasn’t secured — was in violation of the state’s medical marijuana law.

“The plants were being grown outside within an established garden and were not in an enclosed, lockable location as required by law,” Procopio said. “The yard had a fence around it but it was open at the front with no secured gate. A fence section was missing, replaced with a hung tarp that could be moved aside to allow anyone entrance into the yard.”

Procopio said the plants were “very large and easily visible from the National Guard aircraft.”

“Also on the property was a greenhouse that had other marijuana plants inside,” Procopio said.

He said the state troopers allowed the couple to keep all plants in the greenhouse because it was an enclosed lockable location.

A second grow operation was also seized from Wendell on that date that involved two plants, Procopio said.

But Scutari and Compagnone dispute the assertion that their plants were “in plain view.” Scutari said their home is surrounded by a tall fence that obscures their entire yard from the street — the helicopter would be the only way anyone could see them.

“There’s no way a passerby can see it,” she said.

And, she said, the yard’s gate is lockable and the yard can be secured.

“But they said, ‘If they’re outside, they’re illegal,’” she said. “Then he said to the other guys ‘Go around back and start cutting out those plants.’”

She said the police did not present any sort of warrant, and told her “a warrant was not needed” for the seizure.

Procopio said the troopers were “extremely polite and identified themselves as police as soon as they entered (the couple’s yard)” — which he said the agency requires of its personnel.

“Our personnel, although in plain clothes appropriate for hiking through woods if necessary, have their badge of office readily displayed and always identify themselves as state police,” he said. “We also advise growers that we are Mount plants that are in violation of either state law for marijuana manufacturing/possession or, for those who have Massachusetts medical marijuana cards, if they are in violation of the statute for growing and possessing the plants.”

That’s why Scutari’s and Compagnone’s plants were taken, Procopio said.

“No one entering a cardholder’s home or property should know they are growing marijuana,” he said.

Scutari said Tuesday two of the men had badges, and one gave her a business card as he left. But Compagnone said the couple is weighing their legal options. Scutari said she isn’t so sure the authorities are interpreting the law correctly.

“They know we have licenses, so why didn’t they see it and let us know ‘We think you’re violating the law,’ and let us know, instead of flying over, then just showing up with five men?” she questioned.

What’s the law?

Medical marijuana use was first made legal in Massachusetts in 2012 after a successful ballot referendum.

The law allows qualifying patients to possess a 60-day supply of marijuana with a written certification from a licensed physician, according to guidelines issued in April 2015 by the state Department of Public Health. DPH defines a “60-day supply” as 10 ounces of marijuana, or the equivalent in other forms, such as edible marijuana-infused products or oils and resins.

Patients like Scutari and Compagnone can apply for hardship cultivation registration, which allows them to grow marijuana at home. DPH has not set a maximum number of plants that can be grown, but growers must stay under the 60-day supply limit.

The law specifies that marijuana can only be grown and stored in an “enclosed, locked area” not visible to the public at the patient’s or their qualifying caregiver’s primary residence. Patients and caregivers are not allowed to sell, trade, share or otherwise distribute marijuana to anyone else.

Though medical marijuana is legal in Massachusetts, it’s still illegal at the federal level.

Community support

The couple’s plight elicited a groundswell of support from the community, which carried out a letter-writing campaign to Senate President Stan Rosenberg. Rosenberg wrote to one of the couple’s neighbors last week expressing his own concerns about the methods used to seize the plants, but noted the specificity in the law governing how personal grows are to be conducted.

Rosenberg said the ballot question to legalize recreational marijuana would allow for a larger amount to be grown at once, but would still carry the security and “out-of-view” conditions, albeit “without the use of binoculars, aircraft, or other optical aids.”

The Wendell Selectboard also wrote to Attorney General Maura Healey on Sept. 21, calling the raid “over-zealous, discriminatory, illegal and inhumane.”

They expressed concern about a lack of notification about the operation to the local police and complaints received about low-flying helicopters. They said such activity had once disrupted a memorial service on the town common for a town firefighter.

“This seasonal invasion of privacy and misallocation of taxpayer resources (is) profoundly troubling,” the board wrote.

The Selectboard also noted displeasure that the state is paying for raids on medical marijuana while the region remains in the grip of an opioid painkiller and heroin addiction epidemic.

It concluded by calling for an investigation into the incident, clarification on whether it was a warrantless action and information on the approved procedures for such enforcement actions, with remedial action if any of those policies had been breached.

It also asked for prior notification of such actions in town in the future.

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