Judges asked to order the return of O.C. men's pot

August 23, 2007

Christine Hanley, Los Angeles Times

Two Orange County men have taken the cops to court to get their pot back.

Jim Spray, 51, and Felix Cha, 22, who have doctors' recommendations to use marijuana for medical reasons, said that since charges against them were dropped, their property should be returned.

The two men argued their cases Thursday before the state's 4th District Court of Appeal in Santa Ana, which has 90 days to issue a decision.

Their separate cases are the latest in a series across the state that reflect the confusion and tension between patients and police surrounding California's 11-year-old Compassionate Use Act, which is designed to allow marijuana use for medical purposes.

Two years ago, a lawsuit by Americans for Safe Access, an Oakland-based group that monitors medical marijuana issues across the state, led the California Highway Patrol to order its officers to stop confiscating medical marijuana during routine traffic stops. The CHP allows patients to travel with as much as 8 ounces of pot provided they have a certified user identification card or documented physician's approval.

Americans for Safe Access is representing the two Orange County men. Spray said he needs the marijuana for chronic back pain. Cha said he also needs it for pain.

Cha, of Garden Grove, was arrested in June 2005 after police searched his car during a traffic stop and seized 8 ounces of marijuana. Cha showed police proper paperwork at the time.

The case against him was dropped after prosecutors called the physician who recommended the use of marijuana. The judge ordered Garden Grove police to return the drug to Cha, but the city appealed to the 4th District.

On Thursday, Magdalena Lona-Wiant, an attorney representing Garden Grove, argued that the judge made a mistake by ordering the return of the marijuana without determining whether Cha qualified as a medical marijuana patient. She also said that while the Compassionate Use Act established a defense for patients, it did not establish a property right to the drug. She maintained that possessing marijuana violated federal law.

Joe Elford, an attorney for Americans for Safe Access, argued that Cha's case was simply one dealing with the return of property that he lawfully possessed. In this instance, he said, the evidence showed Cha had a valid physician's recommendation.

Spray, of Huntington Beach, was arrested in November 2005 after police confiscated 5 ounces of marijuana and paraphernalia from his home.

He presented a physician's recommendation during a pretrial hearing and asked a judge to order police to return the drug. The request was denied, which led to his appeal to the 4th District.

While that appeal was pending, prosecutors dropped the drug-related charges.

Elford argued that the judge got it wrong and should have, as in Cha's case, ordered police to return Spray's property.

But Deputy Dist. Atty. Stephan Sauer argued that the judge ruled correctly because at the time the decision was made, prosecutors had not dismissed the case.

Sauer argued that the case should be sent back to the trial judge to decide the property issue.

christine.hanley@latimes.com

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