Pubdate: Tue, 2 Dec 2008
Source: Los Angeles Times (CA)
Copyright: 2008 Los Angeles Times
Author: Christopher Goffard
Referenced: Supreme Court Order denying review
Referenced: Decision by the California Fourth Appellate District 
Note: Additional documents
Cited: Americans for Safe Access
Bookmark: (Marijuana - Medicinal)


Garden Grove Had Appealed a Ruling That Ordered the Return of Drug 
Seized From a Patient During a Traffic Stop.

More than three years after Garden Grove police seized a small amount 
of marijuana from a chronic pain patient, the U.S. Supreme Court on 
Monday refused to consider the city's argument -- which divided 
California's major law enforcement organizations -- that it should 
not have to give the drugs back.

Advocates cheered the development as a step forward for medical 
marijuana users to get their "medicine" back from police.

"This is our biggest legal victory to date, and we're very glad it's 
now become final," said Joe Elford, an attorney with Americans for 
Safe Access, an Oakland-based medical marijuana advocacy group.

City officials expressed disappointment and said their position was 
never to challenge the constitutionality of California's medical 
marijuana law, only whether police could be forced to return the drug.

Police pulled over Felix Kha, a Garden Grove resident, in June 2005 
for a traffic violation and found him in possession of one-third of 
an ounce of marijuana.

Though Orange County prosecutors dropped drug charges after a doctor 
confirmed that the cannabis was for medical use, police refused to 
return the drugs on the grounds that to do so violated federal drug 
distribution laws.

A judge in Orange County Superior Court sided with Kha, ordering the 
police to return his marijuana. But the city again refused and 
instead appealed to California's 4th District Court of Appeal. The 
court of appeal also sided with Kha, declaring that patients enjoy a 
federally protected property right to their medical marijuana.

Garden Grove argued that such a right doesn't exist since federal law 
makes marijuana possession illegal in almost all circumstances, and 
asked the California Supreme Court to look at the case, but in March 
the court refused.

Now, the U.S. Supreme Court's refusal to review the decision brings 
the case to a close.

Elford said his group has received hundreds of complaints from 
medical marijuana patients about local police seizing their drugs on 
the logic that "we'll take it from you and let the courts sort it out."

With the Kha case closed, he said, "There will be hundreds, if not 
thousands of patients who will no longer be subject to the 
confiscation of their medicine." Elford said that California, one of 
13 states that had declared medical marijuana to be legal, has as 
many as 300,000 valid medical marijuana patients.

A litany of the state's major law enforcement organizations opposed 
the return of Kha's marijuana, including the California State 
Sheriffs' Assn., the California Police Chiefs Assn., the California 
Peace Officers' Assn., and the California District Attorneys Assn., 
along with 15 cities or counties. But Atty. Gen. Jerry Brown 
supported Kha's position.

Lawyers for Garden Grove argued that California law didn't contain a 
specific provision for the return of medical marijuana, and contended 
that to return the drugs would violated federal law. M. Lois Bobak, 
an attorney for Garden Grove, called the U.S. Supreme Court's refusal 
to review the case a disappointment. She said police lawfully seized 
Kha's marijuana since, at the time he was pulled over, he could not 
prove he had a legal right to possess marijuana .

She said Garden Grove did not challenge the constitutionality of 
California's medical marijuana law, called the Compassionate Use Act.

"The only thing Garden Grove argued was that requiring police to 
return properly seized marijuana would conflict with federal law," 
Bobak said. "There's nothing in the Compassionate Use Act that says 
police have to return marijuana that is properly seized."

Elford said Kha's marijuana was never returned, and that his client 
moved out of Garden Grove as the case was making its way through the 
courts. Despite his victories, given the amount of marijuana 
involved, "it wasn't worth his while" to return and claim it now.

"I'm in good spirits today. I've been litigating this thing for over 
three years," Elford said Monday. "It's been a long, strange journey." 
- ---
MAP posted-by: Richard Lake