Title: Must the police leave 4 cannabis plants in the garden?
Written by: André Beckers
Last week the police received an anonymous tip through an anonymous hotline (meld misdaad anoniem). Somewhere in a garden there are 4 cannabis plants in pots. The police checked up on this tip and it appeared to be accurate. The 4 cannabis plants that were found in the garden were enough reason for the police to search the house. That didn’t result in anything. The 4 plants were destroyed at the scene. Nobody was arrested. The action reached the media.
On Facebook I saw a few reactions regarding this way of taking action by the police. I often read that a citizen has the right to have a few cannabis plants for personal usage. For that reason the police shouldn’t touch the plants. Is that so? Are you allowed to chase the police out of your garden or should you cooperate? I will explain.
The law is clear. According to the Opiumwet (Dutch law regarding opium) you aren’t allowed to cultivate a single cannabis plant. You can be punished for doing so. According to the Opiumwet cannabis is any part of the cannabis plant with exclusion of the seeds. A weight of more than 30 grams of cannabis (plant substance) is considered a felony. Before you know it, cultivating a few plants will mean that you are at risk of receiving a criminal record. This can be prevented.
In the Aanwijzing Opiumwet (a directive regarding the law relating to opium) the investigation policy is made public. In chapter 3.2.1. can be read that:
Non-commercial cultivation of a low quantity for personal usage has, if the suspect is an adult, no priority. Cultivation by a minor must lead to criminal charges. Priority lies with professional and commercial cultivation. To determine if a cultivation site can be labelled as professional or commercial the following factors are of importance:
The size of the cultivation site: the number of plants
When there are 5 plants or less a non-commercial or professional cultivation site can be assumed. This situation will be treated the same as a situation where a low amount for personal usage is found.
The level of professionality, determined by where the cultivation site is located, the lighting, heating, irrigation, etc. (Included in appendix 1);
When, regardless of the number of plants, two or more points apply, such as mentioned in the list of indicators regarding the extent of professionality, included in appendix 1, the site must be considered as professional and commercial.
The purpose of the cultivation
If there is a situation where the cannabis is being cultivated for financial gain, regardless of the number of plants, it must be assumed that the site is professional and commercial.
Nowhere it is written that you have the right to cultivate a few plants for personal usage. It is mentioned that this kind of cultivation isn’t a priority when it comes to investigation and prosecution. The police could have left the 4 cannabis plants. In this situation there is no obligation to take action. There is an authority. Even though taking action against the four plants is silly, the police is allowed to do so.
It is about time that the government allows citizens to cultivate a maximum of 5 plants. For that the Aanwijzing Opiumwet must be changed. A dead simple job, all that is needed is political willpower.
Translated by Joanna McKernan. Joanna works as a Lawyer for the law firm Beckers & Bergmans in Sittard. She is a native English speaker. Joanna has a lot of experience in cannabis related civil cases.