Another State Appellate Court Holds That the Police Must Return Medical Marijuana That Was Seized from a Qualified Patient

January 18, 2013 | Joe Elford

Although the case of Arizona v. Okun arises out of Arizona, the patient whose marijuana was seized is from California. While driving across the California-Arizona boarder at Yuma, qualified California medical marijuana patient Valerie Okun was stopped at a border patrol checkpoint and her medical marijuana was seized. Because Arizona law includes protections for medical marijuana patients from other states, the charges against Okun were dropped, so she asked for her marijuana back, and the cops refused. This had been an all too familiar story in California as well, until the Court of Appeal resolved the issue in favor of medical marijuana patients in the Americans for Safe Access-litigated case Garden Grove v. Superior Court (Cal. App. 2007) 68 Cal.Rptr.3d 656.

As in California’s Garden Grove opinion and Oregon’s State v. Kama (Or. App. 2002), the court found that state law mandates the return of marijuana where it is shown that it is lawfully possessed under the state’s medical marijuana laws. Relying on these cases, the court held that federal law does not require a contrary outcome, since a federal immunity provision, 21 U.S.C. section 885(d), provides immunity to state and local police who lawfully administer state law relating to controlled substances. Thus, the immunity provision allows for harmony between state and federal laws. The Okun court went on to deny standing to the State of Arizona in arguing that federal law preempts state law.

Chalk up another victory to medical marijuana patients who have been harassed by the police.