JUDGE REVERSES RULING, WON'T RETURN MARIJUANA

Bowing to police pressure, a San Francisco judge reversed himself Wednesday
and refused to release medical marijuana seized from a defendant.

Superior Court Judge Wallace Douglass said it's unclear whether California's
medical marijuana law conflicts with federal statutes regarding the return
of seized pot.

"It would be presumptuous of me to carve out an exception to federal law,"
Douglass said during a hearing.

Last month, the judge dismissed charges against Babu Lal for transportation
of marijuana for sale. He also ordered police to return the seized 1 1/2
ounces of pot and two vials of hashish oil.

Police balked and asked the judge to reconsider his order, arguing that the
marijuana was contraband as defined under the U.S. Controlled Substances
Act.

Sgt. Lilli Hitt told the court her officers could be accused by federal
authorities of distributing illegal drugs.

"The police department believes the easiest way out of this dilemma would be
for the court to change its order," Hitt told Douglass.

Defense attorney Brian Petersen countered that police were custodians of his
client's property and, with charges dismissed, should return it.

Petersen said that Lal possessed a doctor-issued card permitting him to buy
and possess pot for a medical condition as outlined with the passage of
Proposition 215.

"Federal law does not prohibit the possession of legal cannabis, because no
court has made that determination yet," the attorney said.

He argued that U.S v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 149
(2001) only held that a nonprofit group could not assert a medical necessity
defense.

"The Supreme Court didn't find that [Prop 215] violated or was preempted by
federal law," he said in court papers. "In other words, the federal courts
have not reached the issue raised here."

During the earlier hearing when Douglass dismissed the charges and ordered
the pot returned, District Attorney Terence Hallinan's office did not object
to either action.

At Wednesday's hearing, Assistant District Attorney Louise Ogden did not
speak to Petersen's claim that the pot should be released. But she said the
office's position was unchanged.

Derek St. Pierre, Petersen's co-counsel, expressed dismay that Hallinan, a
strong supporter of medical marijuana and the implementation of Prop 215,
did not show up.

"I'm surprised that Mr. Hallinan didn't come down and speak on this issue,"
St. Pierre said.

DA spokesman Reg Smith said his boss was at a press conference concerning
elder abuse in Bayview-Hunters Point at the time of the court hearing.

Petersen said he hadn't decided whether to file a writ with the court's
appellate division to try to overturn Douglass' ruling.

"This may be a good one to take up, but the issue will ultimately be decided
by federal courts," he said.