Court orders Garden Grove police to return seized pot

November 27, 2007

Rachanee Srisavasdi, Orange County Register (CA)

SANTA ANA – The Garden Grove Police Department must return seized marijuana to a medical marijuana patient, a state appeals court ruled Wednesday, sending a strong warning to police agencies statewide who engage in such seizures.

In a published opinion, a three-justice panel from the state's Fourth Appellate District ruled that police should adhere to state law, which legalizes medical marijuana, and give back eight grams of the drug to Felix Kha of Garden Grove, who had the drug taken from him more than two years ago during a traffic stop.

Garden Grove argued officers should not give the drug back because it would be a violation of federal law, which considers marijuana contraband.

But in a 41-page ruling, justices said Kha, a medical marijuana patient, has a right to get his property back, and that its return would not affect federal law enforcement.

“It is even more unreasonable to believe returning marijuana to qualified patients who have had it seized by local police will hinder the federal government’s enforcement efforts,’’ the ruling said. “Practically speaking, this subset of medical marijuana users is too small to make a measurable impact on the war on drugs.”

Both law enforcement agencies and medical marijuana supporters were awaiting the ruling, hoping it would clarify the role of local police when confronted with individuals who use medical marijuana.

Advocates for medical marijuana say Kha’s case is not unique, reporting that there have been hundreds of such seizures throughout California.

“We’re delighted with the ruling,’’ said Joe Elford, attorney for Americans for Safe Access, which represented Kha. “It makes clear local law enforcement should not to enforce federal law and are to enforce state law, and that medical marijuana patients are not criminals.”

The California State Sheriffs’ Association, the California Police Chiefs Association and the California Peace Officers’ Association filed briefs supporting Garden Grove, arguing officers should not have to return what is considered illegal to the feds.

Attorney Krista MacNevin Joe, who helped represent the groups, said returning marijuana will mean police officers have to break federal law.

“This puts police in a bad position … we’re disappointed by the decision,’’ she added.

In June 2005, Felix Kha was pulled over by Garden Grove police during a routine traffic stop. Police seized eight grams of the drug from Kha at the time. Criminal charges were later dismissed after Kha proved he had a prescription for the drug – which he uses for back pain.
Kha then asked an Orange County judge to make Garden Grove police give him back the marijuana. The judge agreed, and ordered police to return it.

Kha, now 22, said he was pleased at the verdict, adding "the ruling can help someone else that is in really bad need of access their medicine.”

Garden Grove City Attorney Tom Nixon said he could not comment on the ruling because he had not read it. He did call the differences between state and federal law regarding marijuana a “legal contradiction that needs to be further addressed.”

In a related ruling, the appeals court sided with a Jim Spray of Huntington Beach, ordering that police give him back his five ounces of marijuana taken in November 2005.

Read the opinion here:

www.courtinfo.ca.gov/opinions/documents/G036250.PDF



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