In 2021,
Virginia legalized possession of cannabis for adults over the age of 21. In their infinite wisdom they also legalized home cultivation for up to four plants per household but failed to establish legal sales. This has led to the all too predictable issue of
increased illicit sales, and overall, less safe cultivation with unknown strains coming from who knows where since it is also
illegal to purchase clones or seeds. Now, fast forward to the present and what we have is a Bonafide mess on our hands.
Virginians are getting arrested for possession with intent to distribute, but perhaps more interestingly the home cultivation nexus as the trigger bringing police to the front door with search warrants in hand. This raises all sorts of interesting legal questions including fourth amendment constitutional protection questions. Let’s dive in a little bit to understand the lay of the land of home grow in the Commonwealth.
Notwithstanding the provisions of subdivision (c) of § 18.2-248.1, a person 21 years of age or older may cultivate up to four marijuana plants for personal use at their place of residence; however, at no point shall a household contain more than four marijuana plants.
For purposes of this section, a “household” means those individuals, whether related or not, who live in the same house or other place of residence.
The law goes on to list the penalties for infractions for growing more than four plants,
For possession of more than four marijuana plants but no more than 10 marijuana plants, (i) a civil penalty of $250 for a first offense, (ii) a Class 3 misdemeanor for a second offense, and (iii) a Class 2 misdemeanor for a third and any subsequent offense.
An adult who wishes to grow cannabis at home for his or her personal use must do so in compliance with the following,
Ensure that no marijuana plant is visible from a public way without the use of aircraft, binoculars, or other optical aids;
Take precautions to prevent unauthorized access by persons younger than 21 years of age; and
Attach to each marijuana plant a legible tag that includes the person’s name, driver’s license or identification number, and a notation that the marijuana plant is being grown for personal use as authorized under this section.
Again, there is a civil penalty for violating this subsection with a fine of no more than $25.
So, unless we are talking about a major home grow operation with over 10 marijuana plants or done in plain sight of a public way (more on this below), the worst outcome is a $275.00 civil penalty. After all, the law makes clear this is a civil and not a criminal matter up to a point. However, recently certain jurisdictions have taken things a step further (note in this description taken from the King George County Sheriff’s Office, that the detectives located four large marijuana plants outside that were improperly tagged. Which makes this a $25.00 civil matter and not a criminal matter at all. More important for fourth amendment issues is that this was derived from a police officer who claimed that he “observed large marijuana plants growing at a residence in view of the public.” huh???) and have used the potential for violations of the home grow rules as a basis for probable cause needed for a court ordered search warrant. This raises the obvious concern of the thousands of Virginians who are now legally growing cannabis at home that any accidental or minor issue of non-compliance of the home grow law could subject them to a full-on invasion of their privacy which is protected under the fourth amendment to the constitution. Let’s examine this even more closely and think about some potential protective measures that a home grower should consider.
Defining Public Way
In the entire 2021 Virginia legalization law, the term public way is only used once and that is in the context of rules for home grow. When looking through the Virginia Code, public way comes up a few times, but is never outright defined. It typically includes obvious public access ways such as highways, streets, avenues, boulevards, roads, lane, and alleys (though alleys could also be private).
If we think of a hypothetical relevant to our home grow concerns, suppose a homeowner decides to grow marijuana in the backyard. Suppose they have a tall fence, but a neighbor can see over the fence from their backyard, or their upstairs window. Does this mean that the home grower is violating the law, or would this fit under private and not public way? What if a neighborhood policeman walks over and peers over the tall fence and sees one plant? Does that make it public viewing at that point? This is clearly a fourth amendment consideration, but I think the point is the same. Commonsense should tell us that unless the plants can easily be seen from the public street with little to no effort, then backyard grows that are reasonably discrete, meaning fenced it and hidden, or in a greenhouse, or otherwise kept hidden from the general public would suffice. However, this is all new territory and largely untested in the courts. Which means that we are going to have to debate what public way means in the context of home grows. Moreover, we localities in Virginia need to be educated on the current home grow laws and recognize the civil nature of enforcement rather than pursuing unwise criminal charges on the basis of home grow compliance.
Preventing unauthorized access by minors
This is an interesting one because the law does not prohibit a family with children from participating in the state legal home grow program. But does this create some kind of potential risk to home growers if a neighbor happens to report that they say a minor entering the gardening area where cannabis plants were being cared for? Again, common sense solutions would tell us that preventing unauthorized access
Tagging the plants
Perhaps the easiest aspect of the rule to control is placing a proper tag on your home grow plants. But, forgetting to do so should not subject the home grower to any kind of increased scrutiny. Real community engagement would have a police officer inform the out of compliance home grower to properly tag the plant and give them a written warning.
The crazy world of Virginia cannabis
While it would seem to most observers at the time that Virginia was in the driver seat in 2021, with newly minted laws outlining the future of adult use recreational sales, the proof in the present pudding is that Virginia is lost in the sauce. Instead of passing common sense follow up laws in 2022, the legislature failed to reenact the 2021 law and the Governor decided to reintroduce criminal elements to possession of over eight ounces on someone’s person in public. None of these actions or failures to act have led to safer or smarter cannabis behaviors, in fact the opposite is true. And now it is reasonable to assume that Virginians should expect increased enforcement activities designed to reduce the illicit market, but here’s the thing, enforcement and over policing never work to accomplish the stated goals of reducing the illicit market. What could work is if the legislature and governor’s office actually get into the weeds on recreational cannabis by passing a commonsense law that starts the process for licensing.
Easy takeaways for home growers
Make sure you are only growing up to four plants per household. Do not allow others to grow plants on your property thinking that you are growing four and your brother is growing four, etc., four total is the law.
Be discreet. Plain sight of the public should be obvious, but perhaps in some instances it is not so obvious. Look around your area where you are growing, can it be seen from the public road or public alleyway? If so, perhaps consider a larger fence or building a greenhouse that shields from view your plants.
Put a lock on it. Make sure you have controlled access and take reasonable steps to prevent unauthorized access.
Tag your plants. Nothing fancy needed, just a tag that has all the required identification information and that states clearly this is for personal use authorized under Virginia law.
Get to know your neighbors. This is always good advice but honestly being a part of the community in an open and healthy way can lead to educating concerned neighbors about your right to grow and show them that there is nothing to fear about your personal use.
Last point, elections have consequences and the current chaos in Virginia cannabis was
predictable.
