DENVER ― It was either a huge drug bust or a huge embarrassment. Kansas authorities aren’t sure which one yet.
In early January 2017, Kansas Highway Patrol seized more than 300 pounds of what they believed to be marijuana from the back of a FedEx semi-truck at a warehouse in Liberal, Kansas.
The shipment, which originated in Colorado, was bound for California. Official paperwork from the Colorado Department of Agriculture accompanying the load affirmed it was actually hemp and that, as stipulated by Colorado law, the plants contained no more than 0.3 percent THC. The psychoactive compound is found in much higher concentrations in hemp’s cousin, cannabis, with percentages in some varieties exceeding 17 percent.
Kansas state troopers trusted their noses more than the hemp paperwork ― Lt. Josh Biera swore in an affidavit the boxes gave off “an extremely strong odor of marijuana” ― and had it seized.
Nothing happened in the case for two years. In the meantime, the federal government legalized industrial hemp and all its byproducts in the 2018 Farm Bill. Then, on Jan. 31, 2019, prosecutors in Seward County charged the farmers, Eric and Ryan Jensen, with four drug-related crimes apiece, three of them felonies.
The Seward County Attorney’s office didn’t respond to multiple requests for comment regarding why it took two years to file charges in the case. And despite the charges, it still isn’t clear Kansas actually seized anything other than hemp.
THC levels in hemp sometimes do exceed 0.3 percent. So-called “hot” hemp can be the result of several factors, including the growing environment, flowering period, and the type of seeds used. In 2017, between 7% and 8% of Colorado’s hemp production had to be destroyed after testing hot.
The Jensens used to grow cantaloupe, but stopped after melons they cultivated were responsible for a listeriosis outbreak in 2011. Thirty-three people died after eating the tainted fruit, and 110 more across 28 states were sickened. The brothers were sentenced to 100 hours of community service and had to pay $150,000 in restitution. They decided to take part in a hemp growing operation partially as a result of the debt they found themselves in, Eric told the Associated Press.
Kansas unsuccessfully attempted to extradite Eric (but not Ryan), causing Eric to lose his secondary jobs as a bus driver and coach at the local school district in Holly, Colorado. He’s also unable to travel, as Kansas’ warrant is active in every state but Colorado.
Eric’s attorney Van Hampton, a former judge, told HuffPost an independent lab in Denver agreed to test a sample, but Kansas refused. Kansas Highway Patrol is unwilling to ship a sample across state lines because they believe it’s marijuana ― and that would be illegal, Hampton said.
The only lab in the state capable of distinguishing between hemp and cannabis is located at the Kansas Department of Agriculture, and as an administrative and regulatory body, it doesn’t want to be involved in a criminal case. Earlier this week, prosecutors told Hampton the department had reluctantly agreed to perform the test, but the timeline for when it will actually do so is unclear.
The Colorado Bureau of Investigation could also perform the test, but only if Kansas formally requests it ― and they haven’t.
In the meantime, the 350 pounds of product ― worth an estimated $35 to $40 per pound if it’s indeed hemp ― have wasted away in a Kansas warehouse.
“It is now worthless for its intended purpose, which is the extraction of CBD oil,” said Hampton in an email. “It was being shipped to California for extraction of CBD when the FedEx truck traveled EAST to Kansas instead of WEST to California and the 350-pound shipment was seized ... The deterioration resulting from the two years of careless storage has ruined the value.”
FedEx Freight told HuffPost the company was simply cooperating with law enforcement.
As stands, the case is in an odd state of limbo until Kansas can figure out what it actually seized. Hampton says he filed a motion for court-ordered testing, but the presiding judge refused to hear the motion “for an undisclosed reason.”
If the THC content of the tested materials comes back higher than 0.3 percent, it’s unclear if the brothers are entitled to appeal and if they could secure an independent test. If it’s lower, it’s unclear how Kansas might remedy the two years’ worth of legal woes it caused the brothers.
Regarding that last question, Idaho set a baffling precedent earlier this year after the state found itself in a similar situation.
In February, Idaho State Police seized nearly 7,000 pounds of what it believed to be cannabis and arrested the bewildered truck driver. Even though tests later showed the material to be hemp, Idaho reportedly told the company it nevertheless intended to impound everything ― hemp, truck and trailer ― and sell it.