SEIZED POT MUST BE RETURNED, POLICE SHOULD NOT ASSIST FEDS

Siskiyou County, Calif. - In late August, California Attorney General
Jerry Brown released new medical marijuana guidelines in August,
seeking to clarify how California law enforcement officers should deal
with various aspects of the issue.

Among the subjects addressed in the guidelines are returning marijuana
seized by police to legitimate medical users and cooperation between
federal and state law enforcement with regards to conflicting
marijuana laws. Brown recommends that California law enforcement
officers "not arrest individuals or seize [medical] marijuana under
federal law" and states that seized medical marijuana from legitimate
users must be returned upon an order from a court.

California voters legalized marijuana for medical purposes if
recommended as a treatment by a physician with the passage of
Proposition 215, the "Compassionate Use Act," in 1996.

Senate Bill 420 Medical Marijuana Program Act, passed in 2003, amended
Proposition 215, including setting possession limits of six mature
plants and eight ounces of dried pot.

SB 420 also allowed counties to set their own limits beyond the eight
ounces and six plants, which has led to a wide range of limits
throughout California.

Two recent Appellate Court decisions, People vs Kelly and People vs
Phomphakdy, struck down the possession amounts in SB 420 as having
unconstitutionally amended a proposition. According to the courts, a
proposition passed by the people may not be substantially amended
except by a further vote of the people. The Attorney General has
appealed the People vs Phomphakdy case to the California Supreme
Court, seeking to reinstate the limits.

The federal government, however, does not recognize California medical
marijuana laws and classifies marijuana as a Schedule I illegal drug,
the highest and most dangerous classification, along with heroin and
PCP. Medical marijuana patients have been arrested, doctors
recommending marijuana have been prosecuted, and medical marijuana
dispensaries have been raided and shut down with prison sentences
meted out to the proprietors.

How law enforcement deals with the conflict between state and federal
law has continued to be an issue with questions arising as to whether
police should return marijuana confiscated from medical users and at
what level they should cooperate with federal authorities in arresting
citizens with a marijuana recommendation.

In the new guidelines Attorney General Brown says the "incongruity
between federal and state law has given rise to understandable
confusion, but no legal conflict exists merely because state law and
federal law treat marijuana differently."

"Indeed, California's medical marijuana laws have been challenged
unsuccessfully in court on the ground that they are preempted by the
[federal] Controlled Substances Act," Brown says. "Neither Proposition
215, nor the MMP, conflict with the CSA because, in adopting these
laws, California did not 'legalize' medical marijuana, but instead
exercised the state's reserved powers to not punish certain marijuana
offenses under state law when a physician has recommended its use to
treat a serious medical condition."

Brown goes on to state that under the above conditions, California law
enforcement officers should respect state law.

"In light of California's decision to remove the use and cultivation
of physician-recommended marijuana from the scope of the state's drug
laws, this Office recommends that state and local law enforcement
officers not arrest individuals or seize marijuana under federal law
when the officer determines from the facts available that the
cultivation, possession, or transportation is permitted under
California's medical marijuana laws," Brown stated.

Siskiyou County Public Defender Lael Kayfetz agrees with Brown's
stance and says he is "walking a fine semantic line to implement the
clear desires of California voters." "The guidelines are an admonition
from the Attorney General to California peace officers that they are
California peace officers and should act according to California law
and let the federal government do what it is going to do," Kayfetz
said. "Brown is also a law enforcement officer. He cannot just
disregard what the federal government says. He is in a very difficult
position."

Siskiyou County Sheriff Rick Riggins said, "That's what our officers
are supposed to do."

"If medical marijuana users have their paperwork in order, our
officers leave them alone," Riggins said. "We stood down on the
amounts. We are waiting to see what happens in the Supreme Court.
We're back to 215 at this point. We are concentrating on the big
illegal gardens."

Riggins noted that, "I don't have a problem if somebody needs
it."

"I like that the new guidelines spell out what the doctors are
supposed to do," Riggins said.

The new guidelines state that a physician recommending medical
marijuana should do the following:

. Take a history and conduct a good faith examination of the patient;

. Develop a treatment plan with objectives;

. Provide informed consent, including discussion of side effects;

. Periodically review the treatment's efficacy;

. Consult as necessary; and

. Keep proper records supporting the decision to recommend the use of medical marijuana.

Siskiyou County District Attorney Kirk Andrus said the Attorney
General's suggestion that local authorities not arrest individuals or
seize marijuana under federal law "appears to conform to California
law."

"This is consistent with the practice in Siskiyou County as I
understand it, and is a common sense approach to the distinction
between state and federal law," Andrus said. "We have plenty of work
to do without making arrests or seizing substances to which only
federal law applies."

On the limits Andrus said, "Now that courts have agreed we will not be
enforcing those limits unless the California Supreme Court overturns
that decision when they review the decision."

"However, the AG seems to ignore the fact that much more of SB 420
also amends Proposition 215 and would likely be found unconstitutional
on the same principle if challenged in appellate court," Andrus said.
"This area of the law is very difficult for law enforcement and for
medicinal marijuana practitioners alike. Until given further direction
we will simply be following the language of Proposition 215 and
enforcing where people possess more than reasonably dictated by their
needs as defined in the body of the Initiative."

On the issue of returning seized marijuana, Brown says if a person
establishes to the satisfaction of the court they are legitimate
medical marijuana users, the marijuana must be returned.

"If a person whose marijuana is seized by law enforcement successfully
establishes a medical marijuana defense in court, or the case is not
prosecuted, he or she may file a motion for return of the marijuana,"
Brown states. "If a court grants the motion and orders the return of
marijuana seized incident to an arrest, the individual or entity
subject to the order must return the property."

In addition Brown says that law enforcement agencies who return the
marijuana are not liable for federal prosecution.

"State law enforcement officers who handle controlled substances in
the course of their official duties are immune from liability under
the Controlled Substances Act," Brown says.

Kayfetz agrees with the interpretation of returning seized marijuana
if it is found to be medically legitimate.

"The mandate from the Attorney General is clear," Kayfetz said. "If
the court orders it, the marijuana must be returned."

Sheriff Riggins says returning seized medical marijuana is "not
anything we haven't been doing."

"Once the court orders it, we will return it," Riggins
said.

Andrus said that the statute Brown cites - 21 U.S.C. ? 885(d) of the
federal Controlled Substances Act, which states that law enforcement
officers are immune from prosecution in handling illegal substances in
the course of their duties - is unclear. "The AG states that state law
enforcement officers who handle controlled substances in the course of
their official duties are immune from federal prosecution," Andrus
said. "However, the statute relied upon by the AG is not so clear and
does not seem to have been written with these circumstances in mind.
It would be arguable at best to suggest that a peace officer is
'engaged in the enforcement of [a] law ... relating to controlled
substances' when he is giving marijuana back to a private citizen. I
would not consider it clear based upon this federal statute that a law
enforcement officer may hand marijuana over to a private citizen."

Americans for Safe Access, an organization that defends the use of
medical marijuana, applauded the Attorney General's guidelines.

"Today we stand beside the Attorney General of California in his
effort to fully implement the state's medical marijuana law," said ASA
Chief Counsel Joe Elford. "We welcome this leadership and expect that
compliance with these guidelines will result in fewer unnecessary
arrests, citations and seizures of medicine from qualified patients
and their primary caregivers."

ASA is now calling for the federal government to come into "alignment"
with state medical marijuana laws.

"It is now up to Congress and the new President to align federal
policy with California and other medical cannabis states," said ASA
spokesperson Kris Hermes. "It is time to resolve the federal-state
conflict that serves only to undermine California and other states'
sovereignty and inflict harm on seriously ill patients and their care
providers."