Medical marijuana patient entitled to return of unlawfully seized cannabis

The California Third District Court of Appeals held that the police cannot keep marijuana seized off a bona fide medical marijuana patient who was charged and the charges later dismissed because he was, in fact, a patient. The state’s argument for federal preemption over marijuana prosecution was rejected [not to mention that it was highly disingenuous] as was the argument that returning the medical marijuana would violate public policy [which borders on the fantastic, considering California’s Compassionate Use Act]. This is a really interesting case. The opinion is 41 pages long, and here are only three of them. City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656 (3d Dist. 2007):

Like the City itself, amici also fear the Garden Grove police would be violating federal law by returning Kha’s marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended “to act as a pusher rather than a medical pofessional.” (Relying on United States v. Moore (1975) 423 U.S. 122.)

By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).

Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 10-12.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha’s marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)

That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.

By returning Kha’s marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court’s order comports with an officer’s dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const. art. XX, § 3.)