Ariz. Cops Ordered to Return Medical Marijuana to Patients

July 15, 2013

Josh Crank, Lawyers.com

Arizona authorities must return medical marijuana they seize from authorized patients, according to a decision from the Arizona Supreme Court.

The state’s high court refused to hear the appeal of the Yuma County Sheriff’s Office, which argued that returning medical marijuana to a patient would put it in violation of the federal Controlled Substances Act.

The case involves California medical marijuana patient Valerie Okun, whose medical marijuana was confiscated at a Border Patrol checkpoint near Yuma in 2011. Arizona’s medical marijuana statute recognizes the laws of other states, so Yuma authorities had no choice but to drop the charges after Okun showed her California medical marijuana ID. But when she asked the sheriff’s office for her marijuana back, Yuma County Sheriff Leon Wilmot said no.

An Arizona Superior Court ordered the sheriff’s office to return the marijuana, but it refused again and filed an appeal. The Arizona Court of Appeals affirmed the lower court’s order, noting in its decision that “the Sheriff is immune from prosecution under the federal law for acts taken in compliance with a court order.”

Sheriff Stands His Ground

Even though every Arizona court has ruled against Wilmot, he’s sticking to his guns, appealing the case to the Supreme Court of the United States.

“It has to do with the courts telling me to commit a crime,” said Wilmot in a report published in the Arizona Daily Star. “As far as I’m concerned, that’s not how we do business.”

Kris Hermes, a spokesperson for the medical marijuana advocacy group Americans for Safe Access, welcomed the Arizona Supreme Court decision and criticized the legal argument behind the appeals.

“It’s ridiculous to assert that law enforcement officials are under some threat of arrest or prosecution,” Hermes said. “They probably handle marijuana on a regular basis. Does that make them criminals for handling it? To say so is certainly disingenuous.”

Same Story, Different Cops

Hermes said Okun’s story is similar to a California case the U.S. Supreme Court declined to hear in 2008. That case involved Felix Kah, a medical marijuana patient who was pulled over while driving in Garden Grove, Calif. in 2005. Garden Grove police searched his car without consent and found medical marijuana, which they seized. The charges were dismissed weeks later, but police refused to return the marijuana, arguing that the state medical marijuana statute was preempted by federal law.

Just as in Arizona, a Superior Court ordered the cops to return the pot. And just as in Arizona, the city appealed. In this case, California Attorney General Bill Lockyer filed an amicus (“friend of the court”) brief in support of Kha. The California Court of Appeals ultimately upheld the lower court’s order and, sure enough, the California Supreme Court refused to take it up several months later.

“The landmark appellate ruling held that local officials could not use federal law as a reason to circumvent or refuse to uphold state law,” Hermes said, adding that the U.S. Supreme Court’s refusal to hear the appeal “underscores how much the federal courts want to leave these issues of state law to the state courts.”

As for why some local law enforcement agencies resist their responsibility to uphold state laws that conflict with federal laws, Hermes says “it’s an evolution.”

“Law enforcement is dragged kicking and screaming into upholding state law.”



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