December 2007

State Appellate Court Holds that Police Department Must Return Lawfully Possessed Medical Marijuana

In City of Garden Grove v. Superior Court, the Court of Appeals for the Fourth Appellate District, Division Three, held that the City of Garden Grove ("City") must return lawfully possessed medical marijuana that was seized by the City's Police Department during a traffic stop after Defendant Felix Kha failed to yield at a red light. Defendant Kha was cited for running a red light and unlawfully possessing less than one ounce of marijuana while driving. Defendant Kha pleaded guilty to the traffic violation, but presented evidence to the trial court showing that he was authorized to use medical marijuana to treat an undisclosed "serious medical condition."  The drug charge was subsequently dismissed by the prosecutor, however, the prosecutor opposed Kha's request to have the seized marijuana returned to him.

For purposes of state law, the Court found that Kha was in lawful possession of the marijuana that was found in his car. Therefore, California Health and Safety Code Section 11473.5(a) mandates that the marijuana not be destroyed by order of the court. The Court also found that the City's police department would not be aiding and abetting a violation of federal law if its officers return Kha's marijuana to him because to be liable as an aider and abettor, a person must associate himself with the criminal venture and participate in it as in something that he wishes to bring about and seek by his actions to make it succeed. Although the Court recognized that Kha's possession of the marijuana is a violation of federal law, the Court found that the City has no intention to facilitate such a breach. The Court also found that the City's Police Department should be protected from federal liability if they return Kha's marijuana to him in compliance with a court order because federal law makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties.

The Court further held that principles of due process induce the return of lawfully possessed medical marijuana seized by police officers, although neither the Compassionate Use Act ("CUA") nor the Medical Marijuana Program ("MMP") expressly require it. The Court reasoned that possession of one's property is a substantive right and the retention of property without pending criminal action, violates the property owner's due process rights.

The City also argued that the Control Substances Act ("CSA") preempts the CUA and the MMP to the extent that California law authorizes the return of medical marijuana to qualified users. The Court rejected the City's contention by narrowly holding that "federal supremacy principles do not prohibit the return of marijuana to qualified user whose possession of the drug is legally sanctioned under the state law."  The Court found that Congress did not intent to preempt the states on the issue of drug regulation as evidenced by the statement in the CSA that federal drug laws do not generally preempt state law. The Court also found that the state law does not interfere with the federal government's authority to criminalize marijuana. As the Court explained, the purpose of the CSA is to combat recreational drug abuse and curb drug trafficking, while the purpose of the CUA is to provide access to and to regulate marijuana for medicinal use. The Court reasoned that Congress only intended to bar physicians from using their prescription-writing powers as means of engaging in illicit drug dealing and trafficking as conventionally understood and did not intend to regulate the practice of medicine generally. In invoking the preemption doctrine, the City did not challenge the constitutionality of the state law nor the right of Californians to access marijuana for medicinal purposes. Consequently, the Court did not address these issues.

Ellin Davtyan assisted in the writing of this post.