WACKY TABACKY CASE

Garden Grove police are ordered to return a suspect's marijuana. But
the ruling is not as strange as it sounds.

There's no denying that it sounds wacky: The California Court of
Appeal has upheld a lower court decision ordering the police to give
back the marijuana seized from a driver during a routine traffic
stop. This is likely to generate a wave of "Only in California"
jokes, but just because it's wacky doesn't mean it's wrong.

In 2005, Garden Grove police officers stopped Felix Kha for failing
to yield at a red light. Kha consented to a search of his car, and
police found one-third of an ounce of marijuana that Kha explained
was for medicinal purposes. Orange County prosecutors dismissed drug
charges against him after contacting his doctor, and Kha sought the
return of his property. The police refused, saying that returning the
drug would violate federal laws against marijuana distribution and
possession. The Superior Court of Orange County found for Kha, saying
the state never convicted him of possessing marijuana illegally and
therefore, under California law, the stash was not contraband. Garden
Grove appealed.

Can a city invoke federal law to justify its recalcitrance in
complying with state law? This is where things could have gotten
sticky. But the court correctly found that in this case federal law
did not take precedence over California law. The federal government
is perfectly free to seize Kha's marijuana if it chooses, the court
found, but medical marijuana is legal in this state and neither the
police nor the courts are charged with enforcing federal law. "We
would be astonished if prosecutors began filing federal charges in
state courts," the court wrote.

Numerous law enforcement agencies sided with Garden Grove in its
appeal, arguing that returning the marijuana to Kha was practically
anti-American. It would turn cops into criminals and damage the high
moral standing of local law enforcement, which often cooperates with
federal law enforcement. The court responded that police were not
likely to be prosecuted for distributing marijuana unless they
intentionally began dealing drugs, and that while it's fine for the
police to work with federal agencies, their more traditional duty is
to uphold state law.

As this page has previously noted, there is nothing like a polarizing
social issue during a period when conservatives hold sway in
Washington to convert liberals into champions of states' rights and
conservatives into zealous defenders of the federal government. But
the court deftly navigated this territory as well. By returning Kha's
marijuana, the court wrote, "Garden Grove police 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."