Bruce Prosper Jr., in his words, wasn’t being sneaky.
This fall, behind his house by the Bloomfield town hall, he had been growing 15 marijuana plants. The 48-year-old, who goes by B.J., has been paralyzed since 1990, when a diving accident left him unable to control his body from the chest down. To treat sores, spasms and other medical issues, he said, he has turned to marijuana daily for almost 30 years.
After costs and logistical challenges led him to let his medical marijuana registration lapse, Prosper decided to grow his own.
“Honestly, everybody around here knew,” he said recently. “I did not feel for one instance that I was doing anything wrong.”
But when the Essex County Sheriff’s Department deputies sought a search warrant for Prosper’s residence Sept. 14, they didn’t know he was growing marijuana. The warrant application was based on a deputy’s roadside observation, and it’s difficult to distinguish between hemp and marijuana by eye.
Judge Michael Harris granted the warrant the same day, and Sheriff Trevor Colby and five deputies raided Prosper’s white-and-red home, where he lives with his brother and sister-in-law — his caregiver — and the couple’s two kids.
All three adults were charged for cultivating more than 12 mature marijuana plants, a felony carrying a maximum sentence of 15 years or a $500,000 fine. The law allows for two mature plants and four immature plants per dwelling.
The defendants and their attorney, Tim Fair, believe the case is an example of prosecutorial overreach of a vulnerable person posing no harm — especially in a state where a majority of the public supports legalization of marijuana and officials are beginning to stand up a regulated market. Even Colby, who oversaw the search of the property, thought the case wouldn’t progress past the court diversion program.
The legal battle is a conduit into several policy questions as the state increasingly relaxes cannabis regulations.
Fair believes the case could impact Vermont’s burgeoning hemp industry. Obtaining a search warrant through only visual identification of cannabis “opens up the search of every single hemp farmer in the state,” he said. “Think about that for any other commodity.”
But Colby and Essex County State’s Attorney Vince Illuzzi said they’re in a bind when it comes to large quantities of cannabis.
Gov. Phil Scott in October allowed a bill to go into law that would create a legal market for marijuana and clear the way for recreational dispensaries to open in coming years. But when lawmakers wrote the bill, S.54, they left untouched statutory penalties for possessing larger quantities of marijuana.
“When Vermont passes a law, we’re going to enforce it when it’s right there in our faces,” Colby said. If legislators want to see fewer people penalized for marijuana possession, he asked, why didn’t they further amend the statute?
Illuzzi said he couldn’t comment on an active case. But as laws regulating cannabis evolve, he said, prosecutors and law enforcement officers “are kind of caught.”
“We are obligated to enforce the law,” the state’s attorney said.
‘It’s been everything’
Prosper grew up in North Stratford, New Hampshire, just across the Connecticut River from Bloomfield. When he was 17, a dive into a shallow pond left him with a lifelong disability. He is unable to move most of his body and travels in an electric wheelchair.
He said his disability has made it difficult to find work in the sparsely populated county where he has lived since 1992. Each month, he said, he receives about $800 in Social Security payments to support himself.
Ever since his injury, he has used marijuana to cope with disability related symptoms: severe nausea, arthritis, muscle spasms and sores from using his wheelchair so often.
“It’s been everything,” he said.
For a few years, he said, he held a medical marijuana card. But of the five registered dispensaries in Vermont, the nearest to Bloomfield is in Montpelier, a nearly three-hour-drive round trip.
“It just didn’t work out logistically,” Prosper said. Neither did the cost; according to Heady Vermont, a 30-day supply of two ounces can range from $560 to $900.
So around 2018, he let his registration lapse and chose to grow marijuana himself. That year, he tried his first grow but lost everything to frost, he said.
The next year, he started with six plants, and again weather conditions ruined most of the crops. He said he was left with two.
This year, he decided to start off with even more plants — 15 — figuring he would lose about half of them. The remaining crops, he believed, would give him enough marijuana to last a year.
He said he never felt worried about growing, and it showed in his actions: He set up his plants in his backyard, one building over from the town hall, in a town of about 200 people.
“I wasn’t being sneaky,” he said. “Everything I do is out in the open, so to speak.”
Raid triggers anger but ends calmly
On Sept. 14, an Essex County deputy drove by Prosper’s home on Schoolhouse Road and noticed the cannabis plants in the backyard, records show. He took photos of the plants and told another deputy that he had seen people trimming them a week prior.
Just before 7 p.m. that day, after obtaining a search warrant based on the deputy’s observation, the sheriff and five deputies arrived at the home.
Colby and a deputy, each with an AR-15 rifle within reach, took up perimeter positions on the edges of the property. The four others went to the door.
Body-camera footage reviewed by VTDigger shows the point person of the raid knocking on the front door, then calling out that the Sheriff’s Department was there.
Shortly after, Prosper’s 8-year-old nephew answers the door and lets the deputies inside.
The footage shows Prosper detailing the same explanation of his situation he told VTDigger.
At one point, Prosper’s brother, 40-year-old Adam Bedard, gets angry with the deputies after seeing one of the rifle-bearing men outside. “Do we look like dangerous people?” Bedard asks a deputy. “We’ve got our kids here.”
The search plays out without incident after deputies talk with Bedard and his partner, Nichole Howland, 40.
Marijuana ‘not a big deal’ to sheriff, but ‘still the law’
Internally, Prosper said later, he couldn’t believe what was happening during the raid.
“I was just f—— flabbergasted,” he said. “Like, what are you doing here? Seriously, you’re worried about this?”
Colby, the sheriff, has an answer to that question: Not really.
“It’s not been something that we’re out looking for,” he said of marijuana. “Meth and fentanyl are a hell of a lot more serious.”
And according to the body-camera footage, Colby told the residents about as much.
“Because you have a legitimate reason … I’m going to take 12 and I’m going to leave you two,” he tells Prosper in the video, referring to the legal limit of two mature marijuana plants per household.
At a different point, speaking to Bedard and Howland, the sheriff says he is only going to issue the three citations to appear in court and not place them under arrest. “It’s marijuana,” he says. “Marijuana is not a big deal to us.”
So why pursue the search?
“It’s still the law,” Colby said, and he was concerned that the number of plants meant the residents could be selling.
After the raid, he believed Illuzzi, the prosecutor, would look toward a diversion program resolution rather than pursue full charges.
Fair, the defense attorney, said he plans to file a motion to throw out the search warrant. He thinks it was unjustified, as the Sheriff’s Department never checked to see if the property was registered for hemp cultivation, and the plants could have been hemp.
Illuzzi, while declining to comment on the specific case, pointed to two similar ones in Essex County that recently wrapped up: On Nov. 19, records show, two people facing felony cultivation charges accepted a plea deal that reduced their penalties to a $300 fine alone.
Those cases, he said, show that not every marijuana possession case is prosecuted to the maximum.
Asked about the defense’s argument, Colby agreed that a cannabis plant seen by a deputy could just as likely be hemp as it could be marijuana.
But “until I can test it or the person confirms it for me … how am I supposed to know?” he asked.
The sheriff said he doesn’t want his deputies calling the Department of Agriculture, which runs the hemp grower registry, to check on addresses. He doesn’t know if their staffers are bound to confidentiality regarding law enforcement inquiries, he said, and he wouldn’t want to risk potentially tipping a dealer off.
But Colby says he’d rather not spend time pursuing marijuana investigations — and he is frustrated with the Legislature over that.
“I don’t want to be the state’s revenue collector,” he said, saying it seems the penalties were only left in statute as a way to generate income for the state.
Sen. Dick Sears, D-Bennington, chairs the Senate Judiciary Committee and was a sponsor of the October marijuana market bill.
He said there “probably ought to be more change” regarding possession penalties, but the first step would be improving access to medical marijuana in places like the far reaches of the Northeast Kingdom, where Prosper lives.
“There’s also a thing called prosecutorial discretion,” Sears said. Illuzzi “can amend the charge if he wants to.”
Hearing the details of the case, Sears said he thinks it “calls for some prosecutorial discretion on the charging” and wondered if social services could help.
Asked why legislators hadn’t touched the penalties at play in Prosper’s case, Sears said lawmakers had predominantly been concerned with expungement of old criminal records for lower-level possession — up to 2 ounces. He said legislators may continue to look at possession limits, while “keeping in mind that we want to keep a regulated market.”
‘I wasn’t hurting the public’
Fair, representing Prosper and his relatives, is banking on a legal argument that the search warrant was never justified. “Speculation,” he said, “is not sufficient to issue a search warrant.”
The lawyer, whose Burlington firm represents businesses in the cannabis industry, said he plans to file motions by the end of the year.
Meanwhile, Prosper worries over the possibility that he could face incarceration, though his lawyer thinks it’s unlikely. Prosper said he, his brother and his sister-in-law were offered plea deals that would lower the charges to expungeable misdemeanors. But the deal also meant each of the three would face a $900 fine, which Prosper said is too much. Besides, he doesn’t think his relatives should’ve been charged.
“I was pissed about my brother and sister-in-law being dragged into it,” he said. “They were my plants. It was my idea.”
Like his lawyer, he too thinks the initial search warrant lacked basis.
“I don’t understand how you can just look — even if you stop dead, stood in my road and looked at the plant, how would you know that they’re THC marijuana plants?” he asked.
He acknowledged he had been foolhardy in his plan. But behind it had been hope.
“I learned how to preserve it like the old people canning vegetables for chrissakes,” he said. “I kick myself in the ass now for being naive, but I wasn’t hurting the public.”
Read the story on VTDigger here: Pot prosecution of paralyzed NEK man raises policy concerns.