Agents with law enforcement agencies in San Antonio and throughout Bexar County, TX, go to great lengths to find grow house operations where marijuana is being cultivated.
During these narcotics investigations, local law enforcement officers have experience finding indoor cultivation cannabis operations. When the officers located a suspected grow house, the officers will then attempt to secure a warrant to seize live plants, processed marijuana and various supplies related to the indoor cultivation of marijuana.
The detectives who work in the narcotics-investigations division have extensive formal training and investigatory experience in this area, including specific training on cases involving indoor cultivation and possession of marijuana.
Many of the narcotics investigators have handled hundreds of investigations involving indoor marijuana cultivation. Some of the detectives received advanced training in the detection, operation, and dismantling of indoor grow operations and are familiar with the characteristics of indoor marijuana grow operations.
Attorney for Marijuana Cultivation in San Antonio, TX
You also need an attorney experienced in fighting marijuana crimes to not only level the playing field but give you an advantage when fighting the case. Your attorney will file motions to suppress illegally seized evidence and motions to exclude prejudicial evidence.
If the case is not dismissed before trial, your attorney will also argue all of the reasons why the elements of the case cannot be proven, including a showing that you were actually in possession of the marijuana being cultivated.
If you are charged with being in possession of cultivated marijuana, then contact an experienced criminal defense attorney in San Antonio and Bexar County, TX, to discuss your case. Find out about the charges pending against you, ways to avoid the typical penalties and important defenses that can be used to fight for an outright dismissal of the charges.
Call (210) 738-8383 today.
Penalties for Cultivating or Growing Marijuana
The penalties for possession of marijuana are found in Chapter 12 of the Texas Penal Code. The statutes provide for misdemeanor or felony penalties depending on the amount of cannabis possessed including:
- possession of 2,000 pounds or more of marijuana can be charged as a felony of the first degree which is punishable by a prison sentence ranging from five to 99 years or life imprisonment and/or a fine up to $50,000;
- possesson of 50 pounds or more of marijuana, but less than 2,000 pounds can be charged as a felony in the second degree which can be punishable by a prison sentence ranging from two to 20 years and/or a fine up to $10,000;
- possession of more than five pounds of marijuana, but 50 pounds or less can be charged as a felony of the third degree which is punishable with a prison sentence ranging from two to ten years and/or a fine up to $10,000;
- possession of five pounds or less of marijuana, but more than four ounces can be charged as a state jail felony punishable by a jail sentence ranging from 180 days to two years and/or a fine up to $10,000;
- possession of four ounces or less of marijuana, but more than two ounces can be charged as a class A misdemeanor with a jail sentence of up to one year and/or a fine up to $4,000; and
- possession of two ounces or less of marijuana can be charged as a class B misdemeanor which is punishable by a jail sentence of up to 180 days and/or a fine up to $2,000.
Elements of Possessing Marijuana Being Cultivated
A person commits the felony offense of possession of marijuana when the marijuana is being cultivated if that person knowingly or intentionally possesses a usable quantity of the controlled substance. See Tex. Health & Safety Code Ann. § 481.121(a), (b). “Possession” is defined as “actual care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39) (West 2011); Tex. Health & Safety Code Ann. § 481.002(38) (West 2010).
To prove unlawful possession of marijuana, the prosecutor for the State of Texas must prove the following elements beyond all reasonable doubt:
- the accused exercised care, control, or management over the cultivated marijuana; and
- knew the cultivated marijuana was contraband.
The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused’s connection with the substance was more than fortuitous. When the accused is not in exclusive possession of the place where the contraband is found, the State must show additional affirmative links between the accused and the contraband located in the grow house.
An affirmative link generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it. Courts have identified the following factors that may help to show an accused’s affirmative links to a controlled substance:
- the accused’s presence when a search is conducted;
- whether the contraband was in plain view;
- the accused’s proximity to and the accessibility of the narcotic;
- whether the accused was under the influence of narcotics when arrested;
- whether the accused possessed other contraband or narcotics when arrested;
- whether the accused made incriminating statements when arrested;
- whether the accused attempted to flee;
- whether the accused made furtive gestures;
- whether there was an odor of contraband;
- whether other contraband or drug paraphernalia were present;
- whether the accused owned or had the right to possess the place where the drugs were found;
- whether the place where the drugs were found was enclosed;
- whether the accused was found with a large amount of cash; and
- whether the conduct of the accused indicated a consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n. 12 (Tex.Crim.App.2006).
No set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession; affirmative links are established by the totality of the circumstances. The courts have found that the number of factors present is not as important as the logical force the factors create to prove the accused knowingly possessed the controlled substance. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d).
Possession of Marijuana in a Grow House Operations
Some factors are specific to a marijuana grow house. First, the courts will consider the fact that large quantity of contraband may be a factor affirmatively linking appellant to the contraband. Many complex and large-scale hydroponic operation found inside a home required a high degree of maintenance that included tending to the operation every day or every other day. Hydroponic cultivation of marijuana has a ninety-day growing cycle and the plants are often found in various stages of that cycle.
In these cases, the officers will often set up surveillance to determine who is coming and going from the residence. The officers will also determine who is paying the utility bill for the residence. For instance, in Poindexter v. State, 153 S.W.3d 402, 411 (Tex.Crim.App.2005), the court considered whether a utility bill for a house addressed to the defendant at the home, among other things, a fact finder could conclude that the defendant lived at a house.
Hydroponic grow operations typically consume vast quantities of electrical power as a result of using grow lights, supplemental air conditioning units, fans, and water pumps. During these investigations, officers will look at the energy consumption of a suspected grow house to see if the usage is consistent with hydroponic marijuana grow house operations.
Courts across the United States have found that high electrical consumption combined with other facts is sufficient to show probable cause supporting the issuance of a warrant to search a house for marijuana. For example, in United States v. Gumula, No. 1:11CR105, 2012 WL 4753290, at *3–4 (W.D.N.C. Oct. 4, 2012), the court concluded that the affidavit showed probable cause that marijuana would be found in the house based upon electrical usage five times higher than other houses, which the officer stated was consistent with indoor marijuana cultivation, closed window blinds, an unkempt yard, and the presence of a car belonging to a woman with a previous history of marijuana cultivation.
In People v. Quintana, 785 P.2d 934, 939–40 (Colo.1990), the court concluded that the affidavit was sufficient based on the following facts:
- an informant’s disclosures verified by investigative police work;
- the defendant occupied the premises;
- the defendant owned a vehicle parked in front of the residence; and
- electrical usage that exceeded the use by two to three times the use of the preceding nine months; and
- the presence of vehicle owned by defendant in front of the residence.
In People v. Kazmierski, 25 P.3d 1207, 1212 (Colo.2001), the court noted that excessive energy use in the case of marijuana cultivation is sufficient to tie the allegations of criminal activity to a particular location.
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Donald H. Flanary III
“I see our duty as more than just counselors and advocates, but as warriors.”