Metro

Stakeout of marijuana grower stirs debate

Robert F. Bukaty/Associated Press/File

Just five weeks before Massachusetts voters are to decide whether to legalize recreational use of marijuana, the State Police’s seizure of a grandmother’s marijuana plant has given new life to one of the advocates’ oldest arguments: The war on drugs is a needless waste of resources.

Police seized Peg Holcomb’s plant, nestled among the raspberry bushes in her Amherst backyard, after conducting surveillance of the area from a helicopter in conjunction with the Massachusetts National Guard.

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“It almost seems like the State Police are on the side of the [legalization] campaign, because what better promotional pitch than to say, look what happened to this 81-year-old grandmother?” said Rahsaan Hall, director of the racial justice program at the American Civil Liberties Union of Massachusetts, which has endorsed the ballot measure.

The raid happened Sept. 21. But Holcomb, who says she uses marijuana for medicinal and recreational purposes, went public with her story just this week. “People are shaking their heads, asking what has this world come to?” she told the Globe Thursday. “You can’t fly around our house and snoop in our yards.”

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Holcomb’s tale zipped all over the Internet and quickly became a cause celebre for legalization advocates — and a headache for opponents.

“This is an unfortunate situation,” acknowledged Nick Bayer, manager of the Campaign for a Safe and Healthy Massachusetts, which opposes the ballot measure, “but Question 4 is not the solution to it.”

He contends that the ballot measure would allow people to grow “tens of thousands of dollars of pot at their homes” and “create a new black market.’’

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The legalization measure would allow people 21 and older to grow up to six plants per person — with not more than 12 plants per home — though only out of public view and in secured areas. Legalization advocates say it is insulting to assume that home growers will sell the drug in the black market or in neighboring states where marijuana remains illegal.

If Holcomb’s story added fuel to the legalization debate, it also focused attention on the little-known aerial surveillance program, which has been in effect for about 20 years, according to State Police spokesman David Procopio.

Procopio said the agency pays for the effort with a $60,000 annual grant from the Department of Justice, with much of the money going to overtime for state troopers in the narcotics unit.

The surveillance, focused solely on marijuana eradication, stretches from the islands off Cape Cod to the western part of the state, with a focus on rural areas where large amounts of marijuana are more likely to be found. The program is aimed not at tracking down leads about specific properties, but at searching broad areas for signs of the drug. The National Guard provides a helicopter and a spotter trained in identifying marijuana plants.

Surveillance efforts run from late June to late September, during the marijuana growing season. The Sept. 21 operation in Hampshire and Franklin counties, which netted Holcomb’s marijuana, led to the seizure of 44 plants total at eight separate addresses in Hadley, Northampton, and Amherst. No criminal charges were filed.

In another operation this summer, authorities seized 392 marijuana plants from properties across Martha’s Vineyard, including that of a man who had grown marijuana for his ill wife when she was still alive, Globe columnist Kevin Cullen reported in August.

Procopio said Friday he did not have data on the annual haul from the program. He said the State Police will review the program next year, as they always do, and decide whether to continue it.

‘Why in the world are we using [tax-payer] resources . . . on this?’

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Even if voters legalize marijuana, there still could be reason for enforcement, he said: Home growers who do not keep plants out of view and in a locked area would be in violation of the new law, for instance.

Procopio said the publicity over Holcomb’s case would not have an impact on the police’s decision about whether to continue the program. “I don’t think we would respond, necessarily, to criticism,” he said. “As State Police, our mission, at times, involves duties that may not be widely popular.”

The aerial surveillance program appears to be on solid legal footing. In 1989, the Supreme Court ruled, 5 to 4, that Florida prosecutors could use evidence from a warrantless helicopter flight over a greenhouse where marijuana was visible through a partly removed roof. The decision was built on an earlier case that allowed for similar searches from airplanes.

Anne McKenna, a professor at Penn State Law and consultant to the federal government on aerial surveillance, said the court has found that people cannot have a reasonable expectation of privacy in their yards and other uncovered spaces when planes and helicopters are constantly flying overhead.

People who make efforts to seal something from public view do have a reasonable expectation of privacy, she added. That’s why the Supreme Court ruled in 2001 that police must obtain warrants to use thermal imaging devices to detect the sort of heat that emanates from indoor marijuana growing operations.

McKenna said the Holcomb case in Amherst “touches that gut instinct we all have for the home, where we all want to have privacy protections.” But absent any evidence that police and the National Guard used intrusive technology, like a microphone that could pick up a private discussion about the plant, there is no reason to believe Holcomb’s constitutional rights were violated, she said.

Harvey Silverglate, a prominent civil liberties lawyer in Boston, largely agreed. But the case raised broader concerns, he said, like “why in the world are we using [taxpayer] resources. . . on this?”

Holcomb said in an interview Friday night that she will vote for legalization in November. But she doesn’t plan to campaign for the measure. “I’m not a marijuana activist,” she said.

David Scharfenberg can be reached at david.scharfenberg@globe.com.
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