Court tells cops: Return medical marijuana if drug charges dropped

November 29, 2007

Bob Egelko, San Francisco Chronicle

Police who confiscate medical marijuana must give it back when drug charges against the user are dismissed, a state appeals court has ruled in a case that could settle a hotly disputed issue of conflicting state and federal drug laws.

Statewide police and prosecutors' organizations and 16 city governments from around California joined officials of the Orange County community of Garden Grove in arguing that the court-ordered return of a patient's pot supply would condone drug use, interfere with federal enforcement and even expose police to possible federal prosecution for distributing marijuana or aiding in its use.

The Fourth District Court of Appeal in Santa Ana said Wednesday that those arguments were unfounded because California, in a 1996 voter initiative and a 2003 legislative measure, has determined that medical marijuana is legal under state law.

"It is not the job of the local police to enforce the federal drug laws," said Justice William Bedsworth in the 3-0 ruling. Withholding small amounts of marijuana from patients who have a doctor's recommendation for the drug, he said, "would frustrate the will of the people to ensure that such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction."

The ruling is "a huge victory for patients in California," said Kris Hermes, spokesman for Americans for Safe Access, which represented the patient in the Garden Grove case.

Although the court decided only that police must return marijuana that was legally possessed by the user, Hermes said the ruling also suggested that "they shouldn't be seizing the marijuana in the first place" when the amounts are within limits set by state or local governments and the user has an identification card or doctor's note.

Lawyers for the city and law enforcement associations were unavailable for comment.

Advocates of medical marijuana say local police have routinely confiscated small amounts of pot from authorized users since passage of the 1996 initiative, Proposition 215. They said officers continued those seizures even after 2003, when the Legislature approved identification cards for marijuana patients and authorized them to carry up to 8 ounces of the drug, or more if local governments set a higher limit.

Americans for Safe Access said reports from nearly 800 medical marijuana users over a two-year period found police seized the drugs in more than 90 percent of their encounters, regardless of whether the user had a doctor's note.

Police often refuse to return the marijuana after charges are dropped, said Joseph Elford, a lawyer for the organization. He said judges in some counties, including San Francisco, have sided with the officers.

Wednesday's ruling, the first by an appellate court, is binding on all lower-court judges in the state until another appeals court issues a contrary ruling or the state Supreme Court takes up the issue.

Courts have addressed a series of conflicts between state and federal laws since California voters became the first in the nation to approve the medical use of marijuana. The U.S. Supreme Court has ruled that the federal government can enforce its ban on marijuana use and distribution against California dispensaries, suppliers and patients, but has not struck down the state law.

Another state appeals court, in San Diego, is considering arguments by several counties that the state's requirement that they issue identification cards to medical marijuana users violates federal drug laws. The state Supreme Court heard arguments Nov. 6 in the case of a Sacramento company that cited federal law in firing an employee who used medical marijuana at home.

The Garden Grove case involved Felix Kha, who had about a third of an ounce of marijuana in his car when police stopped him for running a red light in 2005. He showed officers a doctor's note for the marijuana, but they confiscated it and cited him for possessing the drug while driving.

Kha admitted the traffic violation, but the drug charge was thrown out because he had a right under state law to possess and transport marijuana for medical use, the court said. Elford, Kha's lawyer, said police have kept the marijuana while the city appealed an Orange County judge's order to return it.

The appeals court said the marijuana was Kha's property and he is entitled to recover it, just like someone whose car was wrongly seized by police.

Federal laws override state laws when the two conflict, Bedsworth said, but federal drug policy is not threatened by "the return of marijuana to a qualified user whose possession of the drug is legally sanctioned under state law."



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