Saturday, January 19, 2008
Nebraska Supreme Court affirms defendant's conviction for manufacturing a controlled substance, in this case home-grown marijuana. The Supreme Court rejects defendant's appeal that his marijuana growing qualified for the "personal use" exception in 28-401(14). Police officers' search warrant affidavit did not state stale information even though it restated informants' statements from one month earlier that the defendant was growing marijuana in his home. The court also refused to suppress defendant's incriminating statements he made after a Nebraska State Patrolman arrested the defendant at a gas station for driving on a suspended license as the police were starting to search his home. State v. Bossow, S-07-099, 274 Neb. 836 The Nebraska Supreme Court fires up the cloudy issue in 28-401(14) of how "personal use" differs from manufacturing a controlled substance. The Supreme Court finds the statute clearly included growing plants that produce controlled substances and personal use covered rolling the grass and toking up. "The plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use." The Supreme Court also rejected the defendant's claim the information in the search warrant affidavit was stale because it contained the informants' statements that when they visited the defendant's home over one month prior marijuana was growing there. Since the growing cycle of the plant would cover that time period and the plants were not likely to disappear, the search warrant affidavit information was not stale. "Growing marijuana is not an isolated activity where the evidence supporting probable cause tends to disappear quickly.Rather, growing marijuana is a protracted process, for which there is a much greater probability that the evidence related to the crime would remain on the premises for some time. Asindicated in (State partolman's) affidavit, marijuana plants can take up to 22 weeks to mature and can grow in excess of 8 feet tall."