Pubdate: Tue, 02 Sep 2003
Source: San Francisco Daily Journal (CA)
Contact:  2003 Daily Journal Corporation
Website: http://www.dailyjournal.com/
Details: http://www.mapinc.org/media/1141
Author: Pamela A. MacLean, Daily Journal Staff Writer
Note: Daily journal newswire article
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

PATEL RULES POT IS OFF-LIMITS TO THE FEDS

There Can Be No Interference In Medical Marijuana Cases In Which The Weed 
Is Returned To Its Owner.

SAN FRANCISCO - For the first time, a federal judge has made it clear that 
local sheriffs can't run to federal court to circumvent a state judge's 
order that they return seized medical marijuana to its owner.

In a groundbreaking decision, Chief U.S. District Judge Marilyn Hall Patel 
ruled Friday that federal courts have no authority to authorize seizure of 
pot controlled by a Humboldt County sheriff after a state judge ordered the 
reluctant sheriff to return the ounce of pot to its owner, Christopher Giauque.

"This court is without subject matter jurisdiction to revisit application 
of the Controlled Substances Act to precisely the same factual situation 
addressed and adjudicated by the state court," Patel concluded. In the 
Matter of Seizure of Approximately 28 Grams of Marijuana,

"Federal authorities may not muscle in on state proceedings in order to 
gain control over property seized by state police," Patel wrote.

"This is a landmark," said Dale Gieringer, the California coordinator of 
the National Organization for the Reform of Marijuana Laws. "This is the 
first time any federal court has ever ordered the return of marijuana" in a 
medical marijuana case, he said.

Federal authorities could appeal her order to the 9th U.S. Circuit Court of 
Appeals.

Matt Jacobs, spokesman for the San Francisco U.S. attorney's office, 
declined comment on the case and Justice Department attorney Mark Quinlivan 
did not return a call for comment. Quinlivan flew to California from 
Washington to argue in support of the seizure of Giauque's ounce.

More than a half-dozen superior court judges around California and at least 
one Oregon judge have ordered the return to the patients of medical 
marijuana seized by police.

Similar state cases have popped up in Shasta, Sutter, San Benito, San Luis 
Obispo, Mendocino and Sonoma counties, Gieringer said. In Sonoma, a judge 
ordered five pounds of marijuana returned, according to Gieringer.

"This is a major victory for medical marijuana patients and for state's 
rights," said Bryce Kenny of Arcata, Giauque's attorney. In a strange 
twist, Kenny said, his client is not around to celebrate the victory. 
Giauque disappeared on a remote mountain road two weeks ago and his pickup 
truck was found abandoned.

Kenny said the sheriff is investigating the case as a potential homicide 
because the truck was found in an area notorious for marijuana growing. "He 
may have run into the wrong people," Kenny said.

In 1996, California voters passed the Compassionate Use Act, which allows 
seriously ill patients to obtain and use marijuana for medical purposes. 
But federal law prohibits use and possession of marijuana for any use, 
regardless of medical need.

This has created a legal battleground between the states and the federal 
government, as federal drug agents continue to enforce federal narcotics laws.

In January 2001, Humboldt County Superior Court Judge W. Bruce Watson 
ordered Sheriff Dennis Lewis to return one ounce of marijuana seized from 
Giauque during a traffic stop. Giauque had a doctor's recommendation under 
the state's 1996 medical marijuana law to use pot to ease his neck pain.

The sheriff refused and was cited for contempt in May 2001 but that was 
stayed, according to Patel.

Prior to the contempt order, Lewis filed a complaint for declaratory relief 
in federal court against Giauque and the Drug Enforcement Administration 
asking the federal court to determine who should control the marijuana.

Giauque wanted the case dismissed based on the earlier state court order, 
and Patel agreed.

Central to Patel's holding are two cases. First is a Supreme Court case 
from 1935 holding that the first court assuming jurisdiction over property 
may exercise control to the exclusion of others. Penn Gen. Casualty Co. v. 
Pennsylvania ex rel. Schnader, 294 U.S. 189 (1935).

The second is a 1992 5th Circuit case holding that, in the absence of a 
state forfeiture action, the seizure of property by local police places the 
items under state court control and bars federal court interference. 
Scarabin v. DEA, 966 F.2d 989 (1992).

Voters in Humboldt County have elected a new county sheriff since Lewis 
refused to return Giauque's cannabis, in part for his handling of the case, 
according to Gieringer.

"The new sheriff may not have a problem with [the marijuana's] return," he 
said.
- ---
MAP posted-by: Jay Bergstrom