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Media > Newsletters > Law Enforcement Bulletin > October 2013 > Proper Protocol (How to Weigh Marijuana): State of Ohio v. Flachbart

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Proper Protocol (How to Weigh Marijuana): State of Ohio v. Flachbart

Question: If you find a brick of marijuana, what parts of the plant are accounted for in the final weight?
Quick Answer: Anything contained in the marijuana brick can be weighed if that was the way you received it.

State v. Flachbart, Eighth Appellate District, Cuyahoga County, Sept. 5, 2013.
Facts: Cleveland police found a large amount of marijuana after executing a search warrant on Randy Flachbart. Flachbart argued the police failed to precisely weigh the marijuana seized using the definition of “marihuana” in Ohio Revised Code (ORC) 3719.01(O) because the measurement included the seeds and stems to arrive at 5,172 grams. The portion of the definition Flachbart relies on says marijuana does not include mature stalks or sterilized seeds incapable of germination.
Importance: The general rule is that drugs can be weighed as they are packaged when you receive them. In this case, the bricks had seeds and stems that were not broken down or removed when police found them. It was not necessary to pick out the stems or the seeds prior to taking the measurement. It is important to provide an accurate weight in order to correctly charge the offender.
Keep in Mind: The court explained that the intent of the definition is to exclude parts of the plant already separated from the portions that can be counted toward the weight. For example, if the stalk has been separated from the leaves, the stalk would be excluded. Alternatively, if the entire plant was found whole, only the mature stalk would be excluded. But, if only mature stalks or sterilized seeds were found, all would be excluded. The condition in which you find the marijuana will determine what can be weighed.
More on Proper Protocol
Photo arrays and red shirts: You have been charged with putting together the photo array for a robbery suspect. The computer system automatically generates photos with like physical characteristics of the suspect and you add the suspect’s photo. Of the bunch, he is the only one wearing a red shirt. You give the photos to the blind administrator, who then takes the photos to the victim. The victim identifies the suspect. What you did not know is that the suspect wore a red shirt to cover his head during the robbery. Is the fact the suspect’s photo had him wearing a red shirt suggestive?  The court in Mitchell said no. Because the lineup was made by someone other than the arresting officer, the red shirt was barely visible and not distinctive in the photo array, the blind administrator gave the array to the victim, and the victim said he made the identification based on the suspect’s eyes, the court found the lineup was not impermissibly suggestive. The court also determined the Dayton Police Department complied with ORC 2933.83. State of Ohio v. Mitchell, Second Appellate District, Montgomery County, Aug. 30, 2013.
Public Records and the Law Enforcement Exception: You receive a public records request about a pending case. The person has asked for video recordings, audio records, and reports involving a specific traffic stop. While you turn some records over, the prosecutor writes to the other side saying some records will not be turned over because it is investigatory work product, but does not explain further. Has your agency just violated Ohio Public Records Law? Maybe. The Ohio Supreme Court in Miller said that the Ohio State Highway Patrol had to explain, more specifically, why the records fell in the exception. In general, a public record is a record kept by any public office. In this case, the OSHP attempted to use the confidential law enforcement investigatory record exception found in ORC 149.43(A)(1)(h). A confidential law enforcement investigatory record is any record that pertains to a law enforcement matter and can be excluded only if its release would create a high probability of disclosing specific confidential investigatory techniques, procedures, or work product. Citizens have the right to inspect or copy public records unless they fit under an exception. You and your agency are not able to say no to inspection or copying unless there is an exception. For more information, consult the Ohio Sunshine Law Manual or visit State Ex Rel. Miller v. Ohio State Highway Patrol, et al. al., Ohio Supreme Court, Clermont County, Sept. 3, 2013.