PATEL RULES POT IS OFF-LIMITS TO THE FEDS

There Can Be No Interference In Medical Marijuana Cases In Which The Weed
Is Returned To Its Owner.

SAN FRANCISCO - For the first time, a federal judge has made it clear that
local sheriffs can't run to federal court to circumvent a state judge's
order that they return seized medical marijuana to its owner.

In a groundbreaking decision, Chief U.S. District Judge Marilyn Hall Patel
ruled Friday that federal courts have no authority to authorize seizure of
pot controlled by a Humboldt County sheriff after a state judge ordered the
reluctant sheriff to return the ounce of pot to its owner, Christopher Giauque.

"This court is without subject matter jurisdiction to revisit application
of the Controlled Substances Act to precisely the same factual situation
addressed and adjudicated by the state court," Patel concluded. In the
Matter of Seizure of Approximately 28 Grams of Marijuana,

"Federal authorities may not muscle in on state proceedings in order to
gain control over property seized by state police," Patel wrote.

"This is a landmark," said Dale Gieringer, the California coordinator of
the National Organization for the Reform of Marijuana Laws. "This is the
first time any federal court has ever ordered the return of marijuana" in a
medical marijuana case, he said.

Federal authorities could appeal her order to the 9th U.S. Circuit Court of
Appeals.

Matt Jacobs, spokesman for the San Francisco U.S. attorney's office,
declined comment on the case and Justice Department attorney Mark Quinlivan
did not return a call for comment. Quinlivan flew to California from
Washington to argue in support of the seizure of Giauque's ounce.

More than a half-dozen superior court judges around California and at least
one Oregon judge have ordered the return to the patients of medical
marijuana seized by police.

Similar state cases have popped up in Shasta, Sutter, San Benito, San Luis
Obispo, Mendocino and Sonoma counties, Gieringer said. In Sonoma, a judge
ordered five pounds of marijuana returned, according to Gieringer.

"This is a major victory for medical marijuana patients and for state's
rights," said Bryce Kenny of Arcata, Giauque's attorney. In a strange
twist, Kenny said, his client is not around to celebrate the victory.
Giauque disappeared on a remote mountain road two weeks ago and his pickup
truck was found abandoned.

Kenny said the sheriff is investigating the case as a potential homicide
because the truck was found in an area notorious for marijuana growing. "He
may have run into the wrong people," Kenny said.

In 1996, California voters passed the Compassionate Use Act, which allows
seriously ill patients to obtain and use marijuana for medical purposes.
But federal law prohibits use and possession of marijuana for any use,
regardless of medical need.

This has created a legal battleground between the states and the federal
government, as federal drug agents continue to enforce federal narcotics laws.

In January 2001, Humboldt County Superior Court Judge W. Bruce Watson
ordered Sheriff Dennis Lewis to return one ounce of marijuana seized from
Giauque during a traffic stop. Giauque had a doctor's recommendation under
the state's 1996 medical marijuana law to use pot to ease his neck pain.

The sheriff refused and was cited for contempt in May 2001 but that was
stayed, according to Patel.

Prior to the contempt order, Lewis filed a complaint for declaratory relief
in federal court against Giauque and the Drug Enforcement Administration
asking the federal court to determine who should control the marijuana.

Giauque wanted the case dismissed based on the earlier state court order,
and Patel agreed.

Central to Patel's holding are two cases. First is a Supreme Court case
from 1935 holding that the first court assuming jurisdiction over property
may exercise control to the exclusion of others. Penn Gen. Casualty Co. v.
Pennsylvania ex rel. Schnader, 294 U.S. 189 (1935).

The second is a 1992 5th Circuit case holding that, in the absence of a
state forfeiture action, the seizure of property by local police places the
items under state court control and bars federal court interference.
Scarabin v. DEA, 966 F.2d 989 (1992).

Voters in Humboldt County have elected a new county sheriff since Lewis
refused to return Giauque's cannabis, in part for his handling of the case,
according to Gieringer.

"The new sheriff may not have a problem with [the marijuana's] return," he
said.