Appeals court upholds ruling in pot look-alike case

Published 5:50 pm Tuesday, July 15, 2008

A federal appeals court says it will not hold a former Gulf Coast sheriff liable for an honest mistake in destroying plants that resembled marijuana but were found to be deer bait.

The 5th U.S. Circuit Court of Appeals sided with a federal judge in Mississippi who in 2005 threw out property owner Marion Waltman’s lawsuit against then-Harrison County Sheriff George H. Payne Jr. Waltman sought damages from Payne for the destruction of 500 kenaf plants grown as deer food on land he leased for a hunting club.

Payne said it was an honest mistake when he and other law officers destroyed what they thought were marijuana plants.

Waltman sought $225,000 in damages from the Sept. 8, 2003, raid on land leased for the Boarhog Hunting Club. Waltman, who had planted the kenaf, claimed he was watching a television news report when he saw inmate workers chopping down plants and heard the sheriff say the plants appeared to be marijuana.

U.S. District Judge Louis Guirola Jr. in Gulfport ruled Payne was acting within his official capacity and within the scope of discretionary authority. Qualified immunity shielded Payne from liability because his conduct was “objectively reasonable,” the judge said.

The 5th Circuit agreed, also saying Payne’s search was legal under the “open fields” doctrine, which allows officers, under certain circumstances, to seize evidence in plain view without a warrant.

Court records show an informant reported the crop as marijuana to local and federal narcotics agents. The plants were scattered among other plants, a technique common among marijuana growers, authorities said.

A field test on a sample plant did not identify it as marijuana. Questioning the reliability of the field test, Payne ordered the plants seized and then later destroyed.

Africans grew kenaf as early as 6000 B.C., and within the last century it has been grown in India, Asia, Africa, the Near East and Latin America. U.S. farmers have devoted several thousand acres to kenaf in recent years, mostly in Texas, Mississippi and Georgia.

Kenaf comes in two varieties: One with leaves that resemble marijuana, the other with heart-shaped leaves similar to the hibiscus plant, a kenaf cousin.

Waltman argued the kenaf plant has seven leaves at the top and okra-looking leaves at the bottom. He said marijuana only has five leaves.

Kenaf stalks, which reach heights of 12 to 14 feet, have two types of fiber. The long, stringy outer fiber can be twisted into cords and ropes. The shorter inner fibers can be used to make paper, or blended with plastic to make molded or extruded products.

The ruling this past week was issued by a panel of three 5th Circuit judges — Will Garwood, James L. Dennis and Priscilla Richman Owen.