JUDGE REVERSES ORDER TO RETURN POT

In Closely Watched Case, Antolini Sets Hearing On Medical-Pot Possession

A Sonoma County judge reversed himself Tuesday and said Santa Rosa
police - for now - don 't have to return 19 pounds of pot seized from
a medical marijuana user.

Postponing a decision on whether police are obligated to return the
marijuana to Shashon Jenkins, 26, of Sonoma, Judge Lawrence Antolini
said he will hold a hearing to determine if Jenkins was legally
entitled to possess the marijuana in the first place.

Assistant City Attorney Mike Casey agreed that the city wouldn't
destroy the marijuana in the meantime.

Police arrested Jenkins in October and seized 19 pounds of p ot,
which officers testified is worth at least $60,000.

Prosecutors dropped the charges after Jenkins produced a doctor's
approval and other documentation that show he has a prescription to
use medical marijuana and grows it for a group of others.

Antolini will set a hearing date this week to hear arguments on
whether Jenkins legally possessed the marijuana.

Tuesday's decision came after Antolini ordered police to return to
Jenkins "all items seized on Oct. 16, 2006, by members of the Santa
Rosa Police Department, including marijuana" after the criminal case
was dismissed.

When police balked, arguing it was a violation of federal law to give
marijuana to someone, Antolini ordered the city to court to explain
why it was defying his order.

On Tuesday , Casey asked the judge to reconsider his order to return
the marijuana, which Antolini did, at least temporarily.

But the judge appeared eager to push the evolution of medical
marijuana case law, several times referring to conflicting local,
state and federal laws and appellate court rulings on the issue.

"Let's do it," he said. "Sooner or later, someone's going to have to
make some rulings."

Medical marijuana advocates are keeping an eye on Antolini's decisions.

"This case has statewide ramifications," said Aaron Smith, the
statewide coordinator for Safe Access Now, a medical marijuana
advocacy group. "Everyone is closely watching it."

In a similar case pending in Sonoma County courts, Sonoma County
Sheriff's deputies have refused to return 25 pounds of marijuana
taken from the home of an employee of Marvin's Garden, a medical
marijuana cooperative in Guerneville.

In that case, Judge Raima Ballinger has told county attorneys that it
is up to the court to decide whether the marijuana should be returned
and that the job of the Sheriff's Department was to act as custodian
of the confiscated property.

A hearing is scheduled for May in that case.

Both cases are products of Proposition 215, the Compassionate Use Act
approved by voters in 1996, which authorized the use of marijuana for
medical use. Since then, California counties have set their own
limits for what amount of the drug users and caregivers should be
allowed to have.

But federal law still doesn't recognize any legal use for marijuana.
And law enforcement agencies throughout the state have challenged
court decisions granting the return of marijuana with the routine
return of otherwise legal property seized during investigations.

During Tuesday's hearing in the Jenkins case, Antolini cited two
recent appellate court decisions regarding medical marijuana and
whether - and how much of it - should returned if it can be shown the
owner committed no crimes.

"It seems to me the unlawfulness is something that needs to be
addressed, formally addressed," he said.

But if it should be returned, how much should be returned, Antolini
asked aloud.

"If in Sonoma County you can have 3 pounds, in Marin County it's 1
pound, in San Francisco it's 6 pounds, and Orange County says you can
have none, is that equal protection of the law?" he said.

Antolini also noted Oregon's law, which specifically requires the
return of medical marijuana.

"As a judge, all I'm trying to do is follow the law," he said. "Are
there cases, or are we interpolating statutes? If (California's law)
is left blank, isn't that a legislative job, unless the courts are
going to be inventing law?"