Appeals Court Rules Pot To Be Returned To Driver

November 27, 2007

, CBS News

Eight grams of medical marijuana seized from a Garden Grove man during a traffic stop must be returned to him, according to an appeals court ruling directing local law enforcement to uphold state, not federal law.

A three-justice panel of the 4th District Court of Appeal weighed in on the issue in a published decision that sets precedent for future cases on similar issues. 

The marijuana, which belonged to Felix Kha, 22, was confiscated during a traffic stop on June 10, 2005.

Kha pleaded guilty to a traffic violation. The charge of possessing marijuana while driving was dropped after he produced a doctor's note approving Kha's use that he said was for severe back pain.

Despite objections by the prosecution, the judge ordered Kha's marijuana returned, according to the ruling.

The city of Garden Grove, however, said the ruling was flawed after it saw itself "caught in the middle of a conflict between state and federal law."

According to the ruling, the city maintained that to the extent state law authorizers or mandates the return of Kha's marijuana, it is preempted by federal law.

Lawyers for Garden Grove said they were not seeking to have the state's medical marijuana laws declared unconstitutional on pre-emptive grounds, but were simply arguing that the city did not want to be in the position of having to return marijuana to a patient once it has been seized -- lawfully under federal law -- by police.

Kha's attorneys argued that the 10th Amendment to the Constitution effectively prohibits federal interference with California's medical marijuana laws, and the three-justice panel of the 4th District Court of Appeal agreed.

The justices found that because, under state law, Kha was lawfully entitled to possess the marijuana, "due process and fundamental fairness dictate that it be returned to him."

The justices said Kha is "nothing more than an aggrieved citizen who is seeking the return of his property."

"...it must be remembered it is not the job of the local police to enforce the federal drug laws as such," the justices wrote.

The ruling answers "a divisive question pitting the state attorney general," who sided with Kha's position, against the California Police Chiefs Association, according to a statement released by Americans for Safe Access.  

"It should now be abundantly clear to law enforcement across the state that it is not acceptable to seize the medicine of seriously ill patients," said Joe Elford, who represented Kha as the group's chief counsel.

"And if, for whatever reason, a seizure occurs, the court has ensured that patients have a mechanism to get it back," he said.

A representative for Garden Grove has not yet been reached for comment.

In compiling reports from nearly 800 patient encounters with local or state police during a period of more than two years, Elford said, the group found that more than 90 percent result in medicine seized by police regardless of any probable cause, and that "rampant" seizures have taken place in 53 or the state's 58 counties.

Prior to 2005, the California Highway Patrol held the record for the worst violator of Proposition 215, which legalized marijuana for medical use. The CHP, after challenges by the ASA, agreed to modify its policy.  

"Both today's court ruling and the CHP policy should go a long way to restore patients' rights in California," Elford said.



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