LEGAL AFFAIRS Medicinal Marijuana

SEIZED POT A HOT POTATO FOR POLICE

Officers Fear Federal Prosecution If They Return Marijuana State Deemed
Medical

The conflict between state and federal law over medicinal marijuana is
forcing the courts to sort out an unexpected problem for police -- whether
officers could be prosecuted if they return pot seized from users who beat
criminal charges.

Proposition 215, approved by state voters in 1996, legalized growing and
using marijuana for medical purposes, with a doctor's recommendation. But
under federal law, marijuana used for any purpose is illegal.

In at least three cases in Northern California, police have balked at
returning marijuana to people who successfully pleaded that they shouldn't
be prosecuted because their pot use is covered under Proposition 215. Giving
back the pot, police argue, could leave them liable to prosecution under
federal law against distributing illegal drugs.

"There is no legal answer to this conundrum," said Rory Little, a professor
at the University of California's Hastings College of the Law in San
Francisco and a former federal prosecutor. "It's all about strategy, not
law."

CATCH-22 IN SHERIFF'S EYES

In Yuba County, Sheriff Virginia Black defied an order by a judge last week
to return 37 medicinal marijuana plants to Doyle and Belinda Satterfield,
who were arrested in August but later had marijuana charges against them
dismissed.

"If I deliver marijuana to the Satterfields, technically I place myself in
violation of federal law, and I'm not inclined to do that," Black said. "So
I find myself in a Catch-22."

Jesse Choper, a constitutional law professor at UC Berkeley's Boalt Hall
School of Law, agreed with the sheriff. "I think it's pretty clear to me
that they could be charged under federal law," Choper said. "It's unlikely,
but technically it's possible."

That leaves the Satterfields wondering whether they'll get their marijuana
back. Doyle Satterfield, 52, said he uses marijuana for insomnia and
arthritis,

and his wife has used it for chemotherapy treatments for breast cancer.

Belinda Satterfield, 51, said of the sheriff, "I think she's thinking she's
got more power than anybody else, that she's beyond the judge."

Doyle Satterfield's attorney, Justin Scott of Yuba City, said, "I think part
of the issue is that this hasn't come up around here before. I think the
sheriff is dead wrong."

Under state law, controlled substances are usually destroyed after trial, or
if charges are dismissed, unless they were found to be "lawfully possessed"
by the defendant.

That supports the return of medicinal marijuana. And in fact, onetime
defendants in Ventura, Placer, San Bernardino, Sonoma, Mendocino and San
Joaquin counties have all gotten their pot back, Scott said.

POLICE PROTECTED BY LAW

Defense attorneys say police are protected from prosecution by a section
under federal law. It says state and federal law-enforcement officials are
exempt from any civil or criminal liability if they are "lawfully engaged in
the enforcement of any law or municipal ordinance relating to controlled
substances."

Attorney Gerald Uelmen, a Santa Clara University law professor who is
defending local medical-marijuana clubs, said that under that section, law
enforcement has "complete immunity."

Uelmen said of police fears, "Absolute bull--."

Hollister attorney Gregory LaForge agreed, saying, "I don't think that law
enforcement has anything to be scared of. They're using the fact that they
can be prosecuted as an excuse."

On April 22, San Benito County Sheriff Curtis Hill returned 11 grams of
medicinal marijuana to LaForge's client Jack Campo, just hours before a
possible contempt ruling by a judge.

"Based on current state and federal law, police fears are unfounded,"
LaForge said. "If the court makes an order, everybody -- including you and
me and law enforcement -- has to abide by that court order."

One thing is clear, though, about the seized marijuana, Little said. "Cops
don't want this stuff. They just don't want to give it back without
protection.

It's 'better safe than sorry.' "

So what constitutes protection?

Choper said, "I don't think a judge can immunize an unlawful act under
federal law."

JUDGES COULD PLAY ROLE

Little said one solution could be for the police to hand over the seized pot
to a judge and let the court decide whether to release it to onetime
criminal defendants.

But leaving it up to the judge can also lead to plenty of legal hand-
wringing.

Last week, San Francisco Superior Court Judge Wallace Douglass agreed with
police that officers would be forced to violate federal law if authorities
returned marijuana and hash oil to a man from whom it had been seized in a
December traffic stop.

Douglass reversed his own ruling in making the decision. When the attorney
for the drugs' owner, Babu Lal, argued that police were unlikely to be
prosecuted, the judge asked, "It's all right for me to order the Police
Department to violate the law as long as they are immune from prosecution?"