No crime? Give it back
August 22, 2007
EDITORIAL, Orange County Register (CA)
The California Court of Appeal for the 4th District will hear an important case today (at 1:30, 925 N. Spurgeon St., Santa Ana) regarding whether qualified medicinal marijuana patients are entitled to have their medicine returned after it has been seized by police even though they were entitled to possess it. It should be a no-brainer. Patients whose legally possessed property has been confiscated should have it returned unless they have been convicted of a crime.
Indeed, the police should not seize marijuana from qualified patients in the first place.
Felix Kha was cited for marijuana possession and had eight grams (about a quarter-ounce) seized in Garden Grove in June 2005. However, it was determined that he was a qualified patient under California law (the Compassionate Use Act, approved by voters in 1996), and his case was dismissed in August 2005. A Superior Court judge ordered his property returned, but the city of Garden Grove refused to return his marijuana and appealed the order.
Jim Spray, a Huntington Beach patient in similar circumstances, was denied a court order to have seized marijuana returned by a different judge in the same Superior Court. This disagreement among judges makes the issue ripe for resolution by the appellate courts. This decision should advance the cause of having a uniform seizure policy throughout California.
The best model is the one now followed by the California Highway Patrol. Before 2005, its policy was to seize any marijuana discovered, regardless of patient status. After the patient advocacy group Americans for Safe Access filed a lawsuit supported by the state attorney general at the time, Bill Lockyer, the CHP changed policies. Its policy now is not to seize marijuana from those who present a state medical marijuana ID card or a physician's recommendation letter.
According to Americans for Safe Access, which has compiled reports of nearly 800 patient encounters with police over two years, most such encounters result in seizure of medicine regardless of probable cause or charges being filed.
The appeals court would do well to accept the Highway Patrol model. California voters clearly intended to exempt patients from undue legal hassles when they passed Proposition 215, which allows patients with a recommendation from a licensed physician to use and possess marijuana. The court should respect those intentions.