SANTA FE – Norman Davis was sitting on the couch in his Taos County home, feeling a bit under the weather, on a summer day five years ago when he “heard this helicopter overhead.”
“It was loud. Very loud,” Davis, 76, said in a recent interview. “And I looked out the window and I see these guys hovering over me.”
It was a drug raid by New Mexico State Police, with the assistance of the National Guard.
At least six armed officers, some with semiautomatic weapons, took part in the bust. Five or more vehicles from different law enforcement agencies converged on Davis’ property as the chopper hovered overhead.
A judge refused to throw out evidence in the drug possession case but did find “merit to the claim that police swooped in as if they were in a state of war, searching for weapons or terrorist activity,” according to a recent New Mexico Court of Appeals opinion.
And what did the raid yield?
“I had 14 marijuana plants,” Davis said. “For personal use. It just seems like an enormous waste of resources for a plant that poses no harm or threat.”
Davis was 72 at the time. He said he smokes marijuana to help him with ailments that include osteoarthritis and is in the process of applying for entry into the state’s Medical Cannabis Program.
Davis grudgingly gave his consent for officers to search his property during the 2006 raid, figuring he didn’t have a choice, he said. After the plants were found inside his greenhouse, Davis was charged with possession.
But Davis now appears to have the law on his side.
The Court of Appeals recently overturned a District Court ruling that denied Davis’ motion to throw out evidence police found that day, agreeing that his consent to the search was “the product of duress and coercion or acquiescence.”
When police asked permission to search his place, Davis “was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead,” the appellate court stated in its October opinion.
District Judge John Paternoster of Taos had found the search “just barely permissible,” according to the Court of Appeals.
The state Attorney General’s Office has taken the case to state Supreme Court, which has agreed to hear it.
That’s OK with Davis.
“I think it’s a good thing,” he said. “My lawyer thought this was an important constitutional question of what police can and can’t do.”
Hunt for ‘plantations’
State Police were conducting “an operation to identify marijuana ‘plantations’ in Taos County.” The operation included two National Guard choppers and two ground teams of officers.
Davis, in his interview with the Journal, said such high-profile searches are nothing new around Carson, the small community where he lives. “They’ve been making a habit out of doing it for 20 years,” he said. “It’s been random.”
A spotter in one of the helicopters observed ” ‘vegetation’ in the greenhouse and ‘plants at the back of (Davis’) house,’ ” according to the appeals court narrative. Armed officers then formed a perimeter around the property.
One approached Davis and told him “the helicopter (was) looking for marijuana plants and they believe they’ve located some at your residence.”
The officer asked for permission to search. According to a police recording, when Davis asked what would happen if he said no, the officer replied, ” ‘Well, then we’ll secure the residence. That’s up to you.’ ” Davis gave permission.
He subsequently said he wasn’t thrilled with the idea and said, “I don’t know if I should do this; I don’t know if it is in my best interest.”
Davis again asked the officer what would happen if he refused and the officer said the police “would go forth and try to execute a warrant through the District Attorney’s Office.” Davis “ultimately signed the consent form.”
‘Swarmed’ by police
Davis’ public defender lawyers argued “that the helicopter surveillance of his property violated federal and state constitutions and that his consent was not voluntarily given.”
The appeals court noted the “obtrusive” presence of officers, vehicles and a helicopter and that the officers were “heavily armed, carrying both their service handguns as well as AR-15 semiautomatic weapons.”
The appeals court ruling said that when the officer told Davis it would take only about 30 minutes to get a search warrant, Davis had reason to believe that “his refusal to consent was futile.”
The Attorney General’s Office said it won’t comment on a pending case, and State Police Chief Robert Shilling said in an email, “I’d rather not comment on operational issues and the justification of resources on any given case.”
“The case centers on the issue of consent and Fourth Amendment issue(s),” Shilling said.
But Davis believes the case also is about where police chose to focus their efforts.
“It’s like a big, stupid, mistake,” he said. “Hundreds and billions of dollars are being spent to put people in jail for growing a harmless weed.”
Asked whether he still grows pot, Davis said, “I don’t know if I should answer that.”
— This article appeared on page A1 of the Albuquerque Journal