Seized pot must be returned, police should not assist feds

Paul Boerger

In late August, California Attorney General Jerry Brown released new medical marijuana guidelines in August, seeking to clarify how California law enforcement officers should deal with various aspects of the issue.

Among the subjects addressed in the guidelines are returning marijuana seized by police to legitimate medical users and cooperation between federal and state law enforcement with regards to conflicting marijuana laws. Brown recommends that California law enforcement officers “not arrest individuals or seize [medical] marijuana under federal law” and states that seized medical marijuana from legitimate users must be returned upon an order from a court.

California voters legalized marijuana for medical purposes if recommended as a treatment by a physician with the passage of Proposition 215, the “Compassionate Use Act,” in 1996.

Senate Bill 420 Medical Marijuana Program Act, passed in 2003, amended Proposition 215, including setting possession limits of six mature plants and eight ounces of dried pot.

SB 420 also allowed counties to set their own limits beyond the eight ounces and six plants, which has led to a wide range of limits throughout California.

Two recent Appellate Court decisions, People vs Kelly and People vs Phomphakdy, struck down the possession amounts in SB 420 as having unconstitutionally amended a proposition. According to the courts, a proposition passed by the people may not be substantially amended except by a further vote of the people. The Attorney General has appealed the People vs Phomphakdy case to the California Supreme Court, seeking to reinstate the limits.

The federal government, however, does not recognize California medical marijuana laws and classifies marijuana as a Schedule I illegal drug, the highest and most dangerous classification, along with heroin and PCP. Medical marijuana patients have been arrested, doctors recommending marijuana have been prosecuted, and medical marijuana dispensaries have been raided and shut down with prison sentences meted out to the proprietors.

How law enforcement deals with the conflict between state and federal law has continued to be an issue with questions arising as to whether police should return marijuana confiscated from medical users and at what level they should cooperate with federal authorities in arresting citizens with a marijuana recommendation.

In the new guidelines Attorney General Brown says the “incongruity between federal and state law has given rise to understandable confusion, but no legal conflict exists merely because state law and federal law treat marijuana differently.”

“Indeed, California’s medical marijuana laws have been challenged unsuccessfully in court on the ground that they are preempted by the [federal] Controlled Substances Act,” Brown says. “Neither Proposition 215, nor the MMP, conflict with the CSA because, in adopting these laws, California did not ‘legalize’ medical marijuana, but instead exercised the state’s reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition.”

Brown goes on to state that under the above conditions, California law enforcement officers should respect state law.

“In light of California’s decision to remove the use and cultivation of physician-recommended marijuana from the scope of the state’s drug laws, this Office recommends that state and local law enforcement officers not arrest individuals or seize marijuana under federal law when the officer determines from the facts available that the cultivation, possession, or transportation is permitted under California’s medical marijuana laws,” Brown stated.

Siskiyou County Public Defender Lael Kayfetz agrees with Brown’s stance and says he is “walking a fine semantic line to implement the clear desires of California voters.”

“The guidelines are an admonition from the Attorney General to California peace officers that they are California peace officers and should act according to California law and let the federal government do what it is going to do,” Kayfetz said. “Brown is also a law enforcement officer. He cannot just disregard what the federal government says. He is in a very difficult position.”

Siskiyou County Sheriff Rick Riggins said, “That’s what our officers are supposed to do.”

“If medical marijuana users have their paperwork in order, our officers leave them alone,” Riggins said. “We stood down on the amounts. We are waiting to see what happens in the Supreme Court. We’re back to 215 at this point. We are concentrating on the big illegal gardens.”

Riggins noted that, “I don’t have a problem if somebody needs it.”

“I like that the new guidelines spell out what the doctors are supposed to do,” Riggins said.

The new guidelines state that a physician recommending medical marijuana should do the following:

• Take a history and conduct a good faith examination of the patient;

• Develop a treatment plan with objectives;

• Provide informed consent, including discussion of side effects;

• Periodically review the treatment’s efficacy;

• Consult as necessary; and

• Keep proper records supporting the decision to recommend the use of medical marijuana.

Siskiyou County District Attorney Kirk Andrus said the Attorney General’s suggestion that local authorities not arrest individuals or seize marijuana under federal law “appears to conform to California law.”

“This is consistent with the practice in Siskiyou County as I understand it, and is a common sense approach to the distinction between state and federal law,” Andrus said. “We have plenty of work to do without making arrests or seizing substances to which only federal law applies.”

On the limits Andrus said, “Now that courts have agreed we will not be enforcing those limits unless the California Supreme Court overturns that decision when they review the decision.”

“However, the AG seems to ignore the fact that much more of SB 420 also amends Proposition 215 and would likely be found unconstitutional on the same principle if challenged in appellate court,” Andrus said. “This area of the law is very difficult for law enforcement and for medicinal marijuana practitioners alike. Until given further direction we will simply be following the language of Proposition 215 and enforcing where people possess more than reasonably dictated by their needs as defined in the body of the Initiative.”

On the issue of returning seized marijuana, Brown says if a person establishes to the satisfaction of the court they are legitimate medical marijuana users, the marijuana must be returned.

“If a person whose marijuana is seized by law enforcement successfully establishes a medical marijuana defense in court, or the case is not prosecuted, he or she may file a motion for return of the marijuana,” Brown states. “If a court grants the motion and orders the return of marijuana seized incident to an arrest, the individual or entity subject to the order must return the property.”

In addition Brown says that law enforcement agencies who return the marijuana are not liable for federal prosecution.

“State law enforcement officers who handle controlled substances in the course of their official duties are immune from liability under the Controlled Substances Act,” Brown says.

Kayfetz agrees with the interpretation of returning seized marijuana if it is found to be medically legitimate.

“The mandate from the Attorney General is clear,” Kayfetz said. “If the court orders it, the marijuana must be returned.”

Sheriff Riggins says returning seized medical marijuana is “not anything we haven’t been doing.”

“Once the court orders it, we will return it,” Riggins said.

Andrus said that the statute Brown cites – 21 U.S.C. § 885(d) of the federal Controlled Substances Act, which states that law enforcement officers are immune from prosecution in handling illegal substances in the course of their duties – is unclear.

“The AG states that state law enforcement officers who handle controlled substances in the course of their official duties are immune from federal prosecution,” Andrus said. “However, the statute relied upon by the AG is not so clear and does not seem to have been written with these circumstances in mind. It would be arguable at best to suggest that a peace officer is ‘engaged in the enforcement of [a] law ... relating to controlled substances’ when he is giving marijuana back to a private citizen. I would not consider it clear based upon this federal statute that a law enforcement officer may hand marijuana over to a private citizen.”

Americans for Safe Access, an organization that defends the use of medical marijuana, applauded the Attorney General’s guidelines.

“Today we stand beside the Attorney General of California in his effort to fully implement the state’s medical marijuana law,” said ASA Chief Counsel Joe Elford. “We welcome this leadership and expect that compliance with these guidelines will result in fewer unnecessary arrests, citations and seizures of medicine from qualified patients and their primary caregivers.”

ASA is now calling for the federal government to come into “alignment” with state medical marijuana laws.

“It is now up to Congress and the new President to align federal policy with California and other medical cannabis states,” said ASA spokesperson Kris Hermes. “It is time to resolve the federal-state conflict that serves only to undermine California and other states’ sovereignty and inflict harm on seriously ill patients and their care providers.”