Pubdate: Fri, 30 Nov 2007
Source: Recorder, The (CA)
Copyright: 2007 ALM Properties, Inc.
Contact: http://www.law.com/jsp/ca/emailContact.jsp?id=CalLaw_Editor
Website: http://www.law.com/jsp/ca/index.jsp
Details: http://www.mapinc.org/media/652
Author: Mike McKee
Referenced: the opinion 
http://www.courtinfo.ca.gov/opinions/documents/G036250.PDF
Related: Brief Bank http://drugsense.org/url/3063rABP
Cited: Americans for Safe Access http://www.americansforsafeaccess.org
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/topic/Americans+for+Safe+Access

COURT TO CITY: RETURN POT USER'S STASH

Medical pot-using patients won a major victory Wednesday when a 
California appeal court ruled that Garden Grove cops must return the 
marijuana they confiscated from a Southern California man during a 
traffic stop.

The man's attorney, Joseph Elford, chief counsel for the 
Oakland-based Americans for Safe Access, was almost breathless from 
excitement in confirming that the ruling was the first published 
decision in which a California appellate court ordered the return of 
doctor-approved medical marijuana.

"This is a huge case for us," Elford said. "It's probably the 
greatest legal victory for medical marijuana patients in California to date."

He was especially happy that the court took the extra step of 
declaring that medical marijuana patients are not criminals under 
state law, and that local police officers aren't supposed to be in 
the business of enforcing federal laws that criminalize pot possession.

Felix Kha was pulled over by Garden Grove police officers on June 10, 
2005, for running a red light.  While searching his car, officers 
found 8.1 grams of marijuana in a container labeled "medical 
cannabis." They charged Kha with possession.

After confirming that Kha's doctor had recommended marijuana for 
severe pain, prosecutors dismissed the possession charge, but refused 
to return Kha's pot.  Orange County Superior Court Judge Linda Marks 
ruled, however, that the marijuana should be returned because there 
was no illegal possession, considering charges had been dropped.

The city of Garden Grove appealed, arguing that, consistent with 
federal drug policy, Kha's marijuana must be destroyed. A host of 
other cities, as well as several law enforcement organizations, 
signed on as amici curiae, arguing that the judge's decision would 
undermine police morale and send the wrong message to officers 
involved in the war on drugs.

Kha, meanwhile, had the backing of the California attorney general's 
office, which said in an amicus brief that Kha's possession of 
marijuana for medical use was legal under state law and that federal 
law didn't preclude returning his pot.

In a 41-page opinion, Santa Ana's 4th District Court of Appeal agreed 
with Kha and the AG's office.

"Withholding small amounts of marijuana from people like Kha who are 
qualified patients under the [Compassionate Use Act] would frustrate 
the will of the people to ensure such patients have the right to 
obtain and use marijuana without fear of criminal prosecution or 
sanction," Justice William Bedsworth wrote. "It would also ... be 
inconsistent with due process, as well as other provisions of the law 
that contemplate the return of lawfully possessed property."

Justices Richard Aronson and Richard Fybel concurred.

The justices also took exception with the law enforcement amici's 
characterization of Kha as a criminal defendant.

"Kha is clearly not a criminal defendant with respect to the subject 
marijuana," Bedsworth wrote. "Since the prosecution dismissed the 
drug charge he was facing, he is nothing more than an aggrieved 
citizen who is seeking the return of his property. The terms 
'criminal' and 'defendant' do not aptly apply to him."

In addition, the court pooh-poohed the law enforcement amici's 
arguments that police are generally charged with enforcing "the law 
of the land," including federal laws.

"We appreciate these considerations and understand police officers at 
all levels of government have an interest in the interdiction of 
illegal drugs," Bedsworth wrote. "But it must be remembered it is not 
the job of the local police to enforce the federal drug laws as such."

By complying with the court order to return Kha's pot, Bedsworth 
added, Garden Grove officers "will actually be facilitating a primary 
principle of federalism, which is to allow the states to innovate in 
areas bearing on the health and well-being of their citizens."

The ruling is The City of Garden Grove v. Superior Court (Kha), G036250. 
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MAP posted-by: Richard Lake