Pubdate: Fri, 30 Nov 2007
Source: Metropolitan News-Enterprise (Los Angeles, CA)
Copyright: 2007 Metropolitan News Company
Contact: http://www.metnews.com/lettertoeditor.htm
Website: http://www.metnews.com/
Details: http://www.mapinc.org/media/3326
Note: Accepts LTEs from subscribers only.
Author: Steven M. Ellis, Staff Writer
Referenced: the opinion 
http://www.courtinfo.ca.gov/opinions/documents/G036250.PDF
Related: Brief Bank http://drugsense.org/url/3063rABP
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

COURT RULES POLICE MUST RETURN SEIZED MEDICAL MARIJUANA

Law enforcement officers must return marijuana they seize from people 
who are in compliance with state law allowing possession of the drug 
for medical purposes if drug charges are not pending and the 
substance is no longer potential evidence, even if the person's 
possession of the drug violates federal law, the Fourth District 
Court of Appeal has ruled.

Upholding the decision of Orange Superior Judge Linda S. Marks, Div. 
Three held unanimously Wednesday that the state may not seize 
marijuana when a person who is entitled to possess the drug for 
medical purposes under Proposition 215 does so under circumstances 
permitted by that measure. The justices ordered the Garden Grove 
Police Department to return less than one third of an ounce of 
marijuana that it seized from Felix Kha after drug charges against 
Kha were dropped.

Writing for the court, Justice William W. Bedsworth said:

"Even though state law is silent as to whether a qualified patient 
like Kha is entitled to the return of his marijuana once criminal 
charges against him have been dismissed, due process principles seem 
to us to compel that result. Continued official retention of a 
qualified patient's marijuana simply cannot be squared with notions 
of fundamental fairness."

Traffic Stop

Police officers had seized the marijuana from Kha after stopping him 
in 2005 for a traffic violation. The found the drug when Kha 
consented to a search of his car.

Despite Kha's assertion that he had a doctor's approval to use the 
drug to combat severe pain, the officers cited Kha for unlawfully 
possessing less than one ounce of marijuana while driving. The 
prosecutor dismissed the charge for lack of evidence after verifying 
that Kha's physician authorizing Kha's use of the drug as medicine, 
but opposed Kha's request to return the marijuana.

Representing himself, Kha petitioned for the return of his property 
and Marks ordered the drug returned, explaining that, because Kha's 
drug charge had been dismissed, the marijuana had not been illegally 
possessed and had to be returned in the absence of any authority to 
the contrary.

Characterizing itself as "caught in the middle of a conflict between 
state and federal law," and not wanting to be perceived as 
facilitating a breach of federal law, the city then petitioned the 
court of appeal for a writ directing the trial court to vacate its 
order and enter a new order denying Kha's motion for return of 
property. The city contended that Marks' order was legally flawed and 
preempted by federal law.

Due Process

After retaining counsel, Kha argued that he was legally entitled to 
the return of his property under state law and as a matter of due 
process, that federal law was not controlling, and that the Tenth 
Amendment to the U.S. Constitution effectively prohibited federal 
interference with California's medical marijuana laws.  He was joined 
in his argument by then-Attorney General Bill Lockyer, who filed a 
brief in support of Kha as amicus curiae.

In opposition, a vast array of representatives of law enforcement, 
including the associations of California sheriffs, police chiefs, 
peace officers and district attorneys, and a number of individual 
police departments, joined the city in urging the court to overturn 
Marks' ruling.

Bedsworth concluded that public policy considerations and a lack of 
consensus on the subject required the court to determine that the 
city had standing to challenge Marks' order.

However, after determining that Kha's possession was legal under 
state law, but not under federal law, he opined that there was no 
conflict between the two simply because California chose not to 
impose the same prohibition on the possession of marijuana for 
medicinal purposes as Congress.

"Kha... is a qualified patient whose marijuana possession was legally 
sanctioned under state law," he said. "That is why he was not 
subjected to a criminal trial, and that is why the state cannot 
destroy his marijuana. It is also why the police cannot continue to 
retain his marijuana. Because Kha is legally entitled to possess it, 
due process and fundamental fairness dictate that it be returned to him."

In arriving at this conclusion, Bedsworth rejected the city's 
argument that police officers would be subject to prosecution by the 
federal government for returning the drug to Kha.

"There can be little question the Garden Grove police would be acting 
pursuant to their official duties, were they to comply with the trial 
court's order to return Kha's marijuana to him," he wrote. "For that 
reason, the chance they would be subject to federal liability for so 
doing seems nugatory."

Representatives of the city did not return a call seeking comment.

But Kha's attorney, Joseph D. Elford, said that his client was 
"absolutely delighted" with the ruling and called it "the strongest 
vindication of the rights of medical marijuana patients we could 
possibly hope for."

Elford also said that his client was not concerned about being 
prosecuted by the federal government given the small quantity at 
issue, noting that, when he told Kha about the ruling, Kha's first 
question was, "when can I pick it up?"

Instead, Elford said, he expected the city would appeal to the Supreme Court.

Bedsworth was joined in his opinion by Justices Richard M. Aronson 
and Richard D. Fybel.

The case is City of Garden Grove v. Superior Court (Kha), 2007 S.O.S. 6933. 
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MAP posted-by: Richard Lake