See our FAQs: Virginia’s marijuana laws explained.
See also: Here’s what readers said about legalizing retail sales of cannabis.
In 2023, the Louisa County Sheriff’s Office received multiple complaints that someone was running what amounted to an open-air drug market out of a storage unit in the Zion Crossroads community.
The sheriff’s office did exactly what you’d expect a sheriff’s office to do under such circumstances: Deputies raided the place.
“She had booths set up almost like a flea market,” Capt. Dustin Lowe says of the proprietor. “She had so much stuff, it was hard to tell what was legal and what was illegal, so we seized everything.”
Normally, that might be a good approach, but not these days, not since Virginia legalized personal possession of small amounts of cannabis and separate federal legislation has legalized hemp — a form of cannabis that just doesn’t have enough of the chemical compound that gets you high.
“What happened,” Lowe says, “is we seized so many pieces of evidence that when we called the lab, they were overwhelmed. We went back and forth with them on how to get that stuff tested.” The result: Those seizures never got tested because it was unclear which products were potentially legal and which ones were potentially illegal, and the Department of Forensic Science’s posted guidelines specifically say the lab won’t test certain types of edibles that might simply be in violation of packaging requirements.
“In the meantime, she never stopped selling,” Lowe says. “So we put together an undercover operation and made several purchases for things we knew were illegal.” Specifically, psilocybin, or, in the vernacular, mushrooms. The magic kind.
A news release from Commonwealth’s Attorney Rusty McGuire describes what happened when deputies went back after those mushroom purchases from the market operated by Dawn Marie Morris:
“When the detectives executed the search warrant people took off running to escape the property. A search of the tables showed everything from food, smoking products, mobile business called rolling buds, to drugs. Specifically, Morris had 13 clear bags of marijuana labeled as different strands of marijuana. Also, under or around Morris’ table were multiple pounds of marijuana. Another table openly sold psilocyn also known as mushrooms in the open market setting. Detectives next executed a search warrant on Morris’ residence where they observed her previously store the items she transported to the market. They found more psilocybin, marijuana, drug packing materials and almost $100,000 in cash. Detectives also seized the cash associated with Morris at the market. The total assets seized/forfeited was $432,000.”
That targeted approach was more successful: In December, Morris was found guilty of multiple drug offenses, as well as perjury. Next month, she’ll be sentenced. She faces up to 160 years in prison.
However, Morris is still in business. The Charlottesville Daily Progress says she is the owner of the chain of Higher Education stores, which it describes as a “smoke shop.” The store advertises on the radio, with a catchy rap jingle that includes the phrase “the herbs are working.” So just what kind of “smoke shop” is this? (Neither Morris nor her attorney responded to my request to talk.)
On a recent trip to Richmond, I stopped by the Higher Education store in Zion Crossroads. On display were a vast array of pipes, T-shirts and posters, many with cannabis themes. At the counter, in a display case, was a bag of green material that was labeled as “White Truffle” with the advisory that this was merely “THCa.”
THC, short for tetrahydrocannabinol, is the chemical that produces the buzz. THCa is tetrahydrocannabinolic acid, a related compound that won’t get you high — but does convert to the buzz-inducing THC under certain circumstances. Those certain circumstances are when it’s heated. As in, when it’s smoked. One Oregon-based cannabis company proudly describes on its website how this works: “When smoking cannabis, the heat generated from the burning cannabis activates the THCA into THC delta-9, making it more bioavailable and potent.” This was a loophole that the 2018 federal farm bill, which legalized hemp, didn’t envision. You can buy a product that’s not legally marijuana and with the flick of a lighter turn it into marijuana, which may or not be legal in your state. Hence the Atlantic Monthly article last year: “Congress Accidentally Legalized Weed Six Years Ago.”
Maybe the White Truffle on display really is THCa. However, on cannabis-themed websites, it’s widely described as being full of THC. Leafly says that particular strain has about 24% THC (the legal limit to classify it as marijuana is 0.3%). “This strain produces a quick-hitting head high that will clear your mind of worry,” Leafly says. Canna Connection says White Truffle “boasts a high THC content of between 25-30%, making it a potent strain that new cannabis users should approach with caution.”
Virginia law allows for personal possession of small amounts of cannabis, or, as old-timers once called it, marijuana. However, Virginia law expressly forbids the sale of any amount of weed.
Louisa County deputies responded to reports of an open-air drug market. So why aren’t they curious whether a physical store owned by the same person is likewise selling marijuana?
“We haven’t gotten any complaints about the store,” Lowe says.
This is the reality that our politicians in Richmond are choosing to ignore. Last year the General Assembly passed a bill to legalize and regulate retail sales of cannabis in Virginia; Gov. Glenn Youngkin vetoed it. This year, legislators are once again advancing legalization bills, although Youngkin has made it clear they’ll meet the same fate. (The Senate version, SB 970 by state Sen. Aaron Rouse, D-Virginia Beach, passed the Senate Finance Committee on a party-line 10-5 vote Tuesday. The House version, HB 2485 by Del. Paul Krizek, D-Fairfax County, still awaits committee action, but it’s expected to pass, as well).
While legislators debate in the State Capitol, weed sales are already taking place across Virginia — not in furtive exchanges in back alleys but openly in storefronts, many of them on the Main Streets of small towns. Those stores simply aren’t being prosecuted. (I’ve documented many of these by buying products and having them tested. You can see my previous columns about weed buys at stores in Abingdon, Marion, Radford and Smith Mountain Lake.)
Youngkin says he doesn’t want a weed store on the corner, but we already have them, despite (or perhaps because of) his veto. When it comes to cannabis, Virginia is living in a libertarian paradise: There just aren’t many rules, at least ones being enforced. It’s only when there’s a flagrant exception — such as the open-air market in Louisa that was also selling mushrooms — that the law steps in. These aren’t hard-to-find, back alley stores, either. The ones I’ve visited have all been in prominent locations on main roads, sometimes literally Main Street. Some have bright (some might say garish) storefronts, but others look much like any other business, such as the Higher Education store I visited, which is in a former bank building. It’s hard to get much more establishment-looking than that.
For reasons still unclear, most of the cannabis stores are in Southwest Virginia, which makes what went on in Louisa County an exception. I wanted to talk to either prosecutors or police in the localities that have cannabis stores. Only one would — John Clair, the police chief in Marion — and our conversation was quite enlightening. It also confirmed what I had suspected, that cannabis simply isn’t a priority for law enforcement these days, although the reasons why it’s not ought to get the attention of lawmakers in Richmond.
He says the legislature’s decision to legalize personal possession means that violation of cannabis laws is no longer something that’s immediately observable. “In olden times, if you had marijuana, that was illegal, period,” Clair says. Now it’s a question of how much cannabis you have — and whether that material you have really is over the legal limit for THC. That’s complicated things for law enforcement.
At the time I interviewed Clair, I was in a coffee shop, and that became an analogy for our conversation. Imagine a law that said it’s illegal to sell coffee with a certain level of caffeine. If you’re a police officer who walks in and sees a barista selling coffee, it’s not obvious that he or she is selling something illegal. Cannabis is now much the same way. How do you know the store is selling the illegal high-test and not the legal low-test? Just because you might assume all those customers lined up are there to buy the high-test doesn’t necessarily clear the probable cause threshold. Even if you seize some product and test it, and the testing shows the product is illegal, who do you charge? The minimum-wage barista who’s just pulling a handle on the coffee pot? The store owner who might not even be present and might deny knowledge? Maxwell House? The same applies to cannabis stores. What might be obvious to me — “Hey, there’s a weed store! Why isn’t anybody doing anything?” — may not be when it comes to putting together a case that holds up in court.
There’s also the very practical matter of priorities. Every profession has to set priorities, and law enforcement is no exception. Drivers exceed the speed limit every day, but we don’t have enough police to set up radar on every road every hour of the day. If you complain about speeding on your road, maybe they’ll set up a speed trap for a while, but there are always higher priorities. Clair says his department’s most frequent calls for service involve mental health issues. “We’re managing a mental health crisis,” he says. “We’re managing our biggest recruitment and retention crisis in 50 years. We’re juggling all those and dealing with other public safety crises. That’s what’s swirling in the minds of law enforcement. And you want us to prioritize marijuana that we have no complaints about and no visible observation of lawlessness?”
He says many in law enforcement have come to see cannabis not as a criminal issue, but a regulatory one. If the plant is legal if it’s under 0.3% THC, but illegal if it’s at 0.3% or more, and then only under certain circumstances — the quantity, or through sales — that seems a matter for somebody in state government to regulate, not the officer on the beat to figure out through an arrest. “We’re cops, not chemists,” Clair says.
He says state officials have sent “mixed messages” on cannabis. “The General Assembly has created this quagmire, this swamp that we’re all stuck in, where it’s not legal and not illegal,” Clair says. “This in-between game is a way for legislators to alleviate themselves of responsibility on the issue.” Of course, it’s not just legislators involved here, it’s the governor, too. His own views? “I just wish it would go away — make it legal, make it illegal, I don’t know.” All he knows, Clair says, is “the real problem is the social and legal morass created by the General Assembly.”
The law is out of sync with the public’s concern about cannabis, which seems pretty low, and people in law enforcement understand that. The prohibition on sales is becoming almost incidental since it’s not really enforced except in unusual circumstances. The result is we’re seeing (and smelling) what a legal market would look like, just without the state collecting any tax revenue or enforcing any regulations to make sure people aren’t being sold weed that’s full of mold and metals or other bad stuff (and our tests have shown some of that weed is contaminated with those things). By legalizing personal possession, the state has essentially said it’s fine to toke up, so people are.
I was recently pumping gas at a convenience store in Fincastle when the driver at the next pump got out, enveloped in the smell of weed.
I spoke recently at the Virginia Bar Association winter conference in Williamsburg. When I parked my car and walked toward the hotel, I caught a whiff of weed. Were the lawyers lighting up? Or the hotel staff? Or some random passerby? Who knows?
I was also recently in Richmond to chat up various state officials. As I walked out of the building that houses the attorney general’s office, what did I smell? I’ll let you guess.
This week in the governor’s race
In this week’s West of the Capital, our weekly political newsletter, I’ll look at what happened this week in the governor’s race, which is already underway. We’ll also have lots of other action in both Richmond and Washington to catch up on. You can sign up for any of our free newsletters below:
