Appellate Court Strongly Vindicates Patients' Right to Medical Marijuana Seized by Police

Posted by on November 28, 2007

Santa Ana, CA -- A California Appeals Court ruled today in favor of Felix Kha, a medical marijuana patient from Garden Grove seeking the return of his 8 grams of medical marijuana that was seized by police. In a ruling that rejects law enforcement’s claim that federal law preempts the state’s medical marijuana law, the court asserted “we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property.

” The court further stated that, “it is not the job of the local police to enforce the federal drug laws…”

After more than 2 years, the appellate court has answered a divisive question pitting the State Attorney General against the California Police Chiefs Association. Both filed “friend of the court” briefs in the case on opposite sides of the issue, with the Attorney General in support of Kha. “It should now be abundantly clear to law enforcement across the state that it is not acceptable to seize the medicine of seriously ill patients,” said Joe Elford, who represented Kha as Chief Counsel with Americans for Safe Access (ASA), a national medical marijuana advocacy group. “And if, for whatever reason, a seizure occurs, the court has ensured that patients have a mechanism to get it back.”

Kha was cited for marijuana possession and had his medicine seized in June 2005, but after the case was dismissed in August 2005, an Orange County Superior Court judge ordered the return of his medicine. However, the City of Garden Grove not only refused to return Kha's unlawfully seized property, it also appealed the order, an unprecedented action by a California city.

Americans for Safe Access (ASA) has compiled reports from nearly eight hundred patient encounters with local or state police during a period of more than two years. These reports show a glaring trend: more than 90% of all encounters result in medicine seizure by police regardless of any probable cause. According to reports received by ASA, rampant seizure of medical marijuana from qualified patients and primary caregivers has taken place in 53 of California's 58 counties. These violations of state law occur in both urban and rural locales, in the north as well as the south, and by both city and county law enforcement.

The court’s ruling also affirms a policy change by the California Highway Patrol (CHP), which until 2005 held the record for the worst violator of Proposition 215. The CHP’s policy of mandatory seizure of medical marijuana was challenged in court by ASA, after which the state’s top law enforcement agency amply modified its policy. “Both today’s court ruling and the CHP policy should go a long way to restore patients’ rights in California,” continued Elford.

For further information, refer to:
Decision by the California Fourth Appellate District Court
Felix Kha's return of property case

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With over 30,000 active members in more than 40 states, Americans for Safe Access (ASA) is the largest national member-based organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. ASA works to overcome political and legal barriers by creating policies that improve access to medical cannabis for patients and researchers through legislation, education, litigation, grassroots actions, advocacy and services for patients and the caregivers.