COURT RULES POLICE MUST RETURN SEIZED MEDICAL MARIJUANA

Law enforcement officers must return marijuana they seize from people
who are in compliance with state law allowing possession of the drug
for medical purposes if drug charges are not pending and the
substance is no longer potential evidence, even if the person's
possession of the drug violates federal law, the Fourth District
Court of Appeal has ruled.

Upholding the decision of Orange Superior Judge Linda S. Marks, Div.
Three held unanimously Wednesday that the state may not seize
marijuana when a person who is entitled to possess the drug for
medical purposes under Proposition 215 does so under circumstances
permitted by that measure. The justices ordered the Garden Grove
Police Department to return less than one third of an ounce of
marijuana that it seized from Felix Kha after drug charges against
Kha were dropped.

Writing for the court, Justice William W. Bedsworth said:

"Even though state law is silent as to whether a qualified patient
like Kha is entitled to the return of his marijuana once criminal
charges against him have been dismissed, due process principles seem
to us to compel that result. Continued official retention of a
qualified patient's marijuana simply cannot be squared with notions
of fundamental fairness."

Traffic Stop

Police officers had seized the marijuana from Kha after stopping him
in 2005 for a traffic violation. The found the drug when Kha
consented to a search of his car.

Despite Kha's assertion that he had a doctor's approval to use the
drug to combat severe pain, the officers cited Kha for unlawfully
possessing less than one ounce of marijuana while driving. The
prosecutor dismissed the charge for lack of evidence after verifying
that Kha's physician authorizing Kha's use of the drug as medicine,
but opposed Kha's request to return the marijuana.

Representing himself, Kha petitioned for the return of his property
and Marks ordered the drug returned, explaining that, because Kha's
drug charge had been dismissed, the marijuana had not been illegally
possessed and had to be returned in the absence of any authority to
the contrary.

Characterizing itself as "caught in the middle of a conflict between
state and federal law," and not wanting to be perceived as
facilitating a breach of federal law, the city then petitioned the
court of appeal for a writ directing the trial court to vacate its
order and enter a new order denying Kha's motion for return of
property. The city contended that Marks' order was legally flawed and
preempted by federal law.

Due Process

After retaining counsel, Kha argued that he was legally entitled to
the return of his property under state law and as a matter of due
process, that federal law was not controlling, and that the Tenth
Amendment to the U.S. Constitution effectively prohibited federal
interference with California's medical marijuana laws. He was joined
in his argument by then-Attorney General Bill Lockyer, who filed a
brief in support of Kha as amicus curiae.

In opposition, a vast array of representatives of law enforcement,
including the associations of California sheriffs, police chiefs,
peace officers and district attorneys, and a number of individual
police departments, joined the city in urging the court to overturn
Marks' ruling.

Bedsworth concluded that public policy considerations and a lack of
consensus on the subject required the court to determine that the
city had standing to challenge Marks' order.

However, after determining that Kha's possession was legal under
state law, but not under federal law, he opined that there was no
conflict between the two simply because California chose not to
impose the same prohibition on the possession of marijuana for
medicinal purposes as Congress.

"Kha... is a qualified patient whose marijuana possession was legally
sanctioned under state law," he said. "That is why he was not
subjected to a criminal trial, and that is why the state cannot
destroy his marijuana. It is also why the police cannot continue to
retain his marijuana. Because Kha is legally entitled to possess it,
due process and fundamental fairness dictate that it be returned to him."

In arriving at this conclusion, Bedsworth rejected the city's
argument that police officers would be subject to prosecution by the
federal government for returning the drug to Kha.

"There can be little question the Garden Grove police would be acting
pursuant to their official duties, were they to comply with the trial
court's order to return Kha's marijuana to him," he wrote. "For that
reason, the chance they would be subject to federal liability for so
doing seems nugatory."

Representatives of the city did not return a call seeking comment.

But Kha's attorney, Joseph D. Elford, said that his client was
"absolutely delighted" with the ruling and called it "the strongest
vindication of the rights of medical marijuana patients we could
possibly hope for."

Elford also said that his client was not concerned about being
prosecuted by the federal government given the small quantity at
issue, noting that, when he told Kha about the ruling, Kha's first
question was, "when can I pick it up?"

Instead, Elford said, he expected the city would appeal to the Supreme Court.

Bedsworth was joined in his opinion by Justices Richard M. Aronson
and Richard D. Fybel.

The case is City of Garden Grove v. Superior Court (Kha), 2007 S.O.S. 6933.