Counting Those Plants Can Make a Difference

In October of this year, some law enforcement officer will have the dubious honor of making the 20 millionth arrest for marijuana.
It is with that in mind that we consider counting plants when investigating a federal marijuana case. It is imperative to counts plants in a manufacturing case especially if the plant amount is close to a mandatory minimum. This recent blog post from the Federal Defenders of Eastern Washington and Idaho explains a little of the law:

USSG 2D1.1(c), Application Note E, states: “In the case of an offense involving marihuana plants, treat each plant regardless of sex, as equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana.”

The Guideline’s equivalency table is quite punitive. An actual plant typically does not yield 100 grams of marijuana. Recognizing this aspect of the Guideline, the Sixth Circuit recently held in US v. Olsen, 537 F.3d 660 (6th Cir. Aug 14, 2008), that the equivalency table only applies to defendants convicted of manufacturing marijuana. In the context of the less serious offense of possession with intent, the equivalency table can only be applied to live, unharvested plants seized by police. When it comes to harvested plants that are either seized during under-cover sales or during a search, actual weight must be used. According to the Sixth Circuit, this more lenient approach is applicable even when conduct relevant to the defendant’s offense of conviction involved manufacturing marijuana.

The Ninth Circuit has not reached this exact issue. The closest case is US v. Wegner, 46 F.3d 924 (9th Cir. 1995).

Keep in mind that for purposes of the guidelines, a "plant" is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant). USSG 2D1.1 Application Note 17. When investigating a marijuana grow case, make a motion or write a preservation letter to preserve the evidence and request a count which includes examining the plants for the roots especially when the numbers are close.

For even further reading on plants and the emerging field of "forensic botany" check out "The Green Revolution: Botanical Contributions to Forensics and Drug Enforcement" by Heather Miller Coyle, Carll Ladd, Timothy Palmbach, and Henry C. Lee. The article discusses how "forensic botany" can be used to determine if suspects were in certain areas by the use of pollen or by plant disturbances in an area and how fresh water ecology can be used to investigate water deaths. The article contains a section on the DEA and their increasing use of plant molecular biology techniques. Because each seed has it’s own unique genetic composition, DNA typing of marijuana grown from seed would allow one to link a leaf in an individual’s vehicle back to a plant from a growing area near the suspect’s home, for example.