Top court refuses to review marijuana ruling

December 01, 2008

, Orange County Register

The U.S. Supreme Court refused Monday to review a lower court decision ordering Garden Grove police to return eight grams of marijuana seized from a patient who had been pulled over in a traffic stop, an attorney said.

The case involving Garden Grove resident Felix Kha that the nation's highest court refused to take up was a landmark ruling, issued on Nov. 28, 2007, by California's Fourth District Court of Appeal that held “it is not the job of local police to enforce the federal drug laws,” according to Joe Elford, chief counsel with Americans for Safe Access.

The city of Garden Grove appealed to the California Supreme Court, which refused to review the decision in March, then petitioned the U.S. Supreme Court.

Elford called the court's refusal to consider the case a victory in clarifying law enforcement's obligation to uphold state law regarding medical marijuana.

The lower court's 41-page decision found that the state's medical marijuana law was not preempted by federal law, Elford said.

The decision will result in better adherence to state medical marijuana laws by local police and will result in fewer needless arrests and seizures, advocates assert.

“It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law,” Elford said.

“Perhaps, in the future local government will think twice about expending significant time and resources to defy a law that is overwhelmingly supported by the people of our state.”

Lois Bobak, a private attorney whose firm represents the city on a contract basis, said the issue in the case was a narrow one.

“The U.S. Supreme Court didn't issue any kind of ruling, it just failed to review a lower-court decision,” Bobak said. “You can't read too much into that fact. The city felt it was important to pursue the legal principle that police shouldn't be put in a position of returning a substance that is contraband under federal law.”

Kha, 23, was stopped by police on June 10, 2005. He pleaded guilty to a traffic violation, but a charge of possessing marijuana while driving was dropped after he produced a doctor's note approving Kha's use, which he said was for severe back pain.

A judge ordered the return of the marijuana but the city saw itself as caught in the middle of a conflict between state and federal law.

Bobak said Kha did not have his doctor's note on him when police stopped him, which allowed police to properly seize it. The city argued that because the seizure was legal in light of Kha's failure to carry the note, the marijuana did not have to be returned.

Of the high court's refusal to take the case, Bobak said, “I think it gives clear direction to police if they confiscate (medical) marijuana and a person later establishes they qualify for it.”

The marijuana has not been returned but will be once the city gets the deny of review ruling.

A case challenging Anaheim's ban on dispensaries, an entirely separate issue, is pending before the Fourth District Court of Appeal, Elford

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