Court Orders Police to Return Marijuana
November 29, 2007
Rebecca Cathcart, New York TimesA California appeals court has ordered the police in Garden Grove to return marijuana that was seized from a man during a routine traffic stop, ruling that enforcement of federal drug laws did not supersede the state’s allowance of marijuana for medicinal purposes.
The man, Felix Kha, had a doctor’s prescription for the marijuana, which he used for the treatment of chronic pain.
In the ruling issued Wednesday, a three-judge panel from the state’s Fourth District Court of Appeals cited constitutional principles of federalism and power-sharing between state and national governments in ordering the marijuana returned. California law allows for the prescription and possession of medical marijuana in amounts of less than eight ounces.
Police officers pulled over Mr. Kha in Garden Grove, south of Los Angeles, in 2005 for running a stop sign. When they asked him if he was in possession of any illegal substances, Mr. Kha, now 22, said he had marijuana prescribed to him by a doctor. Officers seized the marijuana, about a quarter of an ounce, and cited Mr. Kha for possession of marijuana and a traffic violation.
Mr. Kha pleaded guilty to running the stop sign and asked the judge for the return of his marijuana. After hearing proof of the authenticity of the doctor’s note, he was given permission to retrieve the marijuana.
But the Garden Grove Police Department refused to return it when Mr. Kha presented them with the court order, said his lawyer, Joe Elford of Americans for Safe Access, a group that advocates medicinal uses of marijuana.
“He had to go to court three times to get this order,” Mr. Elford said. “When the police have no probable cause to believe that people are violating state law, they shouldn’t be seizing their medical marijuana or citing them.”
The Garden Grove police took the case to the appeals court, where it remained until this year, when judges denied the department’s petition and upheld the original order. The California State Sheriffs’ Association, the California Peace Officers’ Association and the California Police Chiefs Association each filed briefs in support of the Garden Grove police. One brief, filed in 2006, stated that the court’s decision would have “a profound impact” on law enforcement officers in California.
“We have a state court ordering a peace officer to do something that is in direct violation of federal law,” said Martin Mayer, a lawyer for the three associations. “That puts officers between the proverbial rock and a hard place and undermines the role that they perform.
“We’re hoping,” he added, “that the City of Garden Grove will petition the California Supreme Court for a review.”
Garden Grove has not said whether it will take the case further, Mr. Mayer said.
Medical marijuana “remains illegal contraband under federal law,” according to the 2006 brief, “and, by virtue of that characterization, is not subject to return under state law.” Until 2005, the California Highway Patrol had a policy of seizing marijuana despite the display of a doctor’s recommendation. After a lawsuit filed by Americans for Safe Access, the patrol revised its seizure policy.