Court to City: Return Pot User's Stash

November 29, 2007

Mike McKee, The Recorder

Medical pot-using patients won a major victory Wednesday when a California appeal court ruled that Garden Grove cops must return the marijuana they confiscated from a Southern California man during a traffic stop.

The man's attorney, Joseph Elford, chief counsel for the Oakland-based Americans for Safe Access, was almost breathless from excitement in confirming that the ruling was the first published decision in which a California appellate court ordered the return of doctor-approved medical marijuana.

"This is a huge case for us," Elford said. "It's probably the greatest legal victory for medical marijuana patients in California to date."

He was especially happy that the court took the extra step of declaring that medical marijuana patients are not criminals under state law, and that local police officers aren't supposed to be in the business of enforcing federal laws that criminalize pot possession.

Felix Kha was pulled over by Garden Grove police officers on June 10, 2005, for running a red light. While searching his car, officers found 8.1 grams of marijuana in a container labeled "medical cannabis." They charged Kha with possession.

After confirming that Kha's doctor had recommended marijuana for severe pain, prosecutors dismissed the possession charge, but refused to return Kha's pot. Orange County Superior Court Judge Linda Marks ruled, however, that the marijuana should be returned because there was no illegal possession, considering charges had been dropped.

The city of Garden Grove appealed, arguing that, consistent with federal drug policy, Kha's marijuana must be destroyed. A host of other cities, as well as several law enforcement organizations, signed on as amici curiae, arguing that the judge's decision would undermine police morale and send the wrong message to officers involved in the war on drugs.

Kha, meanwhile, had the backing of the California attorney general's office, which said in an amicus brief that Kha's possession of marijuana for medical use was legal under state law and that federal law didn't preclude returning his pot.

In a 41-page opinion, Santa Ana's 4th District Court of Appeal agreed with Kha and the AG's office.

"Withholding small amounts of marijuana from people like Kha who are qualified patients under the [Compassionate Use Act] would frustrate the will of the people to ensure such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction," Justice William Bedsworth wrote. "It would also ... be inconsistent with due process, as well as other provisions of the law that contemplate the return of lawfully possessed property."

Justices Richard Aronson and Richard Fybel concurred.

The justices also took exception with the law enforcement amici's characterization of Kha as a criminal defendant.

"Kha is clearly not a criminal defendant with respect to the subject marijuana," Bedsworth wrote. "Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms 'criminal' and 'defendant' do not aptly apply to him."

In addition, the court pooh-poohed the law enforcement amici's arguments that police are generally charged with enforcing "the law of the land," including federal laws.

"We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs," Bedsworth wrote. "But it must be remembered it is not the job of the local police to enforce the federal drug laws as such."

By complying with the court order to return Kha's pot, Bedsworth added, Garden Grove officers "will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens."

The ruling is The City of Garden Grove v. Superior Court (Kha), G036250.

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