COPS JUST SAY NO TO JUDGE'S REEFER ORDER

When a San Francisco judge ordered police to give back medical marijuana
seized from Babu Lal, they refused.

The cops said they didn't want to be providers of an illegal drug.

That incident has left Superior Court Judge Wallace Douglass with a tricky
legal question: How will he balance individual property rights with police
arguments that they would be violating federal and state drug laws?

Wallace has set May 1 for a hearing to reconsider his order. The judge has
asked attorneys for Lal and the police to submit written briefs.

"We're going to do some more research," said defense attorney Brian Petersen
last week.

"Without trying to undercut the provisions of Proposition 215 [the medical
marijuana initiative], we want some procedures or protocol on how to return
drugs that we've confiscated," said police sergeant and attorney Reno
Rapagnani.

Petersen said his client, who has a valid medical marijuana use card, was
charged with the transportation for sale of marijuana, about 1 1/2 ounces
and two vials of hashish oil.

"He was told [by health officials], 'if you have this card, the cops won't
hassle you,'" Petersen said.

He said the felony was eventually reduced to a misdemeanor by the district
attorney. Then Petersen filed a motion to dismiss the case, People v. Lal,
2021260. When Assistant District Attorney Gregory Mendez did not object,
Douglass dismissed the charges.

Petersen said he then drafted an order for the judge directing police to
give back the marijuana and the hash oil to Lal. Douglass signed it on April
3. The prosecution agreed.

Lal went to the property room in the basement of the Hall of Justice to pick
up his stash, but officers refused to honor the judge's order.

"There are state and federal laws that prohibit us from furnishing marijuana
to anyone," Rapagnani said. "We're seeking declaratory relief."

He said there were "all kinds of quality control issues," which could put
police in jeopardy.

"What if we give the drugs back and the person has a [bad] reaction?" he
asked. "Are we civilly liable?"

District Attorney Terence Hallinan, a strong advocate of medical marijuana,
was unavailable for comment, but the DA's public information officer issued
a statement.

"Unwillingness by the police to return marijuana to a documented patient is
very troubling," Fred Gardner said. "If every confiscation, no matter how
inappropriate, is irreversible, then the police have pre-empted the roles of
prosecutor, judge and jury."

He added that cops were "meting out a form of punishment" to sick patients
rather than complying "with the medical marijuana law."

"Somebody must have taken Reefer Madness at face value," Gardner said.

Rapagnani, who is the acting lieutenant in charge of the police legal
office, said the judge's order presents a dilemma for cops.

"What law do we violate, state or federal [regarding furnishing drugs] or
the judge's order?" he asked.

Petersen said police were also concerned that the district attorney might
arrest an officer who gives Lal the drugs back.

"I said, 'if they do, I'll post the bail,'" the lawyer said.

Petersen worries that San Francisco cops will ask a U.S. magistrate to seize
the marijuana under federal controlled substance statutes.

"I'm just afraid that somebody else is going to take it away," he said.

Petersen said his client is an immigrant from India who holds a valid green
card. With the charges dismissed, Lal is no longer "in peril" of being
deported.

"He did everything he was supposed to do" to get the medical marijuana card
from the city health department, Petersen said.

Petersen said he has contacted defense attorneys in Santa Cruz, who ran into
similar problems with cops there who seized stashes meant for medicinal use.

"In Santa Cruz, the judge ordered the cops to give the marijuana to the
court clerk," the attorney said. The clerk then gave the pot back to the
defendant.

"A judge may have immunity from prosecution," Petersen said. "I think these
are interesting issues."