how do i get my property back if the case was dismissed?

[CdwJava]

Paraphernalia associated with the smoking of marijuana is generally not criminal by itself, so should be able to be released upon order of the court or by direction of the D.A. And precisely WHAT pipe or "device" is worth $500?!?

The marijuana is a stickier question, and there is currently litigation working its way through the court on actually returning marijuana. Many agencies believe that the return of marijuana violates federal law and will not do so. The CHP, however, generally will comply with the return of the substance with a court order or DA approval. Given the fact that marijuana possession and distribution is against federal law, and judges are granted almost absolute immunity, the DA tends to defer that back to the courts for marijuana cases rather than writing a "permission" slip to the local agency.

Here is the current direction from the CA Attorney General:

7. Return of Seized Medical Marijuana: 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. 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. State law enforcement officers who handle controlled substances in the
course of their official duties are immune from liability under the CSA. (21 U.S.C.
§ 885(d).) Once the marijuana is returned, federal authorities are free to exercise
jurisdiction over it. (21 U.S.C. §§ 812(c)(10), 844(a); City of Garden Grove v.
Superior Court (Kha) (2007) 157 Cal.App.4th 355, 369, 386, 391.)​

And, note that what some law enforcement agencies are doing is notifying the feds that they will be returning the dope and allowing the feds to take whatever action they wish. While it is unlikely that the feds will concern themselves with 7 grams of marijuana, it IS a possibility that you could be scooped up by the feds when you leave the CHP office.

It might not be worth it to get the marijuana back ... just in case.

- carl

 

[tranquility]

Carl, for the phony pot-as-medicine crowd, there are some bong/waterpipe/whatevers, that are artsy and complicated and can cost a lot.

For the real pot-as-medicine crowd, there are devices which heat the marijuana to the point of vaporizing the canabinoids without combustion. These vaporizers can be expensive.

The marijuana is a stickier question, and there is currently litigation working its way through the court on actually returning marijuana. Many agencies believe that the return of marijuana violates federal law and will not do so.

In the fourth appellete district of California I believe the question has been decided in favor of returning the marijuana. The case involved the Garden Grove police department, but I don't recall the cite offhand.

 

[CdwJava]

Carl, for the phony pot-as-medicine crowd, there are some bong/waterpipe/whatevers, that are artsy and complicated and can cost a lot.

I have seen some fancy ones, but never knew they came anywhere NEAR $500!

For the real pot-as-medicine crowd, there are devices which heat the marijuana to the point of vaporizing the canabinoids without combustion. These vaporizers can be expensive.

That sounds much more effective for those who truly want to use their pot as medicine, instead of a Prop 215 card as a dodge to get high.

In the fourth appellete district of California I believe the question has been decided in favor of returning the marijuana. The case involved the Garden Grove police department, but I don't recall the cite offhand.

It is, and I have the full decision here somewhere, but I know the decision is being mulled over to appeal it (and it may have already BEEN appealed). Recently, most every law enforcement agency and government entity in the state has been approached about supporting Garden Grove (at least I THINK the request came from GG) in their appeal, and I know the agencies in my part of the state have by and large signed on. I also believe that there is another agency that has a similar case coming down the pipe as well.

I have also heard (and believe this may be the policy of my agency if it comes down to it) that rather than turn marijuana over to a person, the agency will turn it over to the court who can then do with it what they will. A COURT has absolute immunity ... an individual law enforcement officer does not. I know of a few Chiefs that have outright said they will defy any court order that encourages them to ostensibly violate federal law, because STATE appellate courts opinions aside, their legal counsels are telling them that such an act CAN violate federal law should the feds ever want to push it.

- Carl

 

[tranquility]

I know of a few Chiefs that have outright said they will defy any court order that encourages them to ostensibly violate federal law, because STATE appellate courts opinions aside, their legal counsels are telling them that such an act CAN violate federal law should the feds ever want to push it.

I hope the judges who are ignored put the chief who violates the legal court order in jail.

 

[CdwJava]

I hope the judges who are ignored put the chief who violates the legal court order in jail.

I doubt that will happen because there is legal opinion that the order would be placing the Chief or the property clerk at risk. Per the AG that is not the case, but if my own legal counsel said otherwise, I'd be happy to comply with the spirit of the order and turn the contraband over to the court to return it to the defendant rather than risk jeopardy myself. The judge is immune from prosecution - the Chief is not. And an order by the court to commit a criminal act is not a lawful order ... at least that will be the interpretation that will be taken. So until a federal court rules that law enforcement is exempt from prosecution, you can expect that this step will eventually be taken if these orders come down the pipe.

- Carl

 

[HomeGuru]

I want my freakin pot back and I have a legal right to demand it.

 

[tranquility]

I doubt that will happen because there is legal opinion that the order would be placing the Chief or the property clerk at risk.

Which legal opinion is that?

Clearly, the chief is choosing to violate California law as expressed by controlling court authority and by opinion of the state Attorney General. Choosing because of a personal disagreement with the law. Criminals don't get to choose to follow what *they* perceive to be the "spirit" of the law. How come the police do?

 

[tranquility]

I want my freakin pot back and I have a legal right to demand it.

It's not a big old joke to a lot of people. It is a real medicine which substantively helps people in extreme situations.

True, there is fraud and abuse as to the laws purpose. If those who were opposed would have worked with those trying to pass the common-sense law, rather than crossing their arms, closing their eyes, plugging their ears and saying "no", maybe the law would be different. They didn't, it isn't.

 

[CdwJava]

Which legal opinion is that?

Pardon me, I should have probably termed it as through "advice of counsel" ... since this is the position taken by a number of agency's legal representatives, including - as I recall - my own.

Clearly, the chief is choosing to violate California law as expressed by controlling court authority and by opinion of the state Attorney General. Choosing because of a personal disagreement with the law. Criminals don't get to choose to follow what *they* perceive to be the "spirit" of the law. How come the police do?

Okay ... would YOU want to be the test case? I wouldn't. A federal drug rap would kinda be detrimental to my career. And since federal law tends to trump state law, if my legal counsel said I was at jeopardy for returning a controlled substance to someone not authorized it pursuant to federal law, I would likely heed the advice of counsel. In such an instance, I would turn the contraband over to the court.

Someone may well be the test case someday. Until it happens, and until either a federal agency pops a property clerk or executive of an agency, or until those parties are jailed on contempt charges by a state court, the issue is moot. Frankly, I doubt that any judge would jail a law enforcement executive or property custodian under these circumstances, but there is always that possibility.

Until the state and the feds work out the differences in this area, law enforcement and the courts in CA are going to be caught in the squeeze. The state says medical marijuana is legal, yet the feds can close down medical marijuana clinics ... obviously the state law does not reign supreme in this argument, yet. Until it does, law enforcement is going to be extremely wary about turning drugs back over to people even pursuant to a state court order so long as there is jeopardy attached.

- Carl

 

[tranquility]

What was the justification for you to come into possession of the drug in the first place? Because you have already come into possession without lawful purpose, haven't you already violated federal law?

Have you notified whoever gave you your oath of office you no longer swear to uphold the Constitution of the state of California?

I believe there is less fear on the part of the police chiefs and their council than there is disagreement with the law of the state. (Who, by the way, gives the power for them to even be police officers.) You can come here to claim legitimate concern about a federal conviction for following a court order, but I find that justification less than convincing. I hope those who continue to break the law of the state of California, with intent to do so, are removed from positions of responsibility of enforcing those laws. Advice of counsel or no.

 

[CdwJava]

What was the justification for you to come into possession of the drug in the first place? Because you have already come into possession without lawful purpose, haven't you already violated federal law?

When it is seized pursuant to arrest or discovery it is not unlawful possession - you know that.

Have you notified whoever gave you your oath of office you no longer swear to uphold the Constitution of the state of California?

My oath contains language that I shall uphold the Constitution of the United States which comes prior to any oath to the state of California.

You can choose to disagree with the reasoning behind the defiance all you wish. But, until the matter is settled at the federal level, there may well be a number of chief executives that will NOT directly return contraband to individuals - they will, instead, turn the contraband over to the court. I suspect the issue WILL come up again in the not too distant future. Until this matter is resolved by the feds - either by the granting of absolution, or by the overturning of 215 - this will continue to be a source of ire for the entire criminal justice system. The AG's recent guidelines (as of a couple weeks ago) have gone a long way to clarify certain issues, but they are still the AG's opinons - not that of a specific court, and certainly not that of the feds. The release of those guidelines MAY result in a change of opinion by agencies legal counsels as those opinions were issued some time back. Only time will tell.

Likewise, it is possible that the feds will be notified when any such return IS scheduled so that the feds can choose to take action should they so choose. Personally, I think that would be a hoot ... I guess that's my mean streak showing.

- carl

 

[CdwJava]

As a note, as of August 27th, our agency's legal advisor (and at least one other such law firm I could locate) have advised their clients to adhere to the current state law pending the outcome of any further challenges.

As I said, the previous notice could change with the recent decisions in Garden Grove and by the state appellate courts coupled with the AG's guidelines. Given that, I doubt there will be any wanton withholding of marijuana in defiance of court orders ... but, one can still expect the possibility of fed notification upon the return of marijuana.

- Carl

 

[tranquility]

When it is seized pursuant to arrest or discovery it is not unlawful possession - you know that.

Actually, you should read the law closely and figure out *why* that is the case, Carl. Then you will discover the problem when you fail to turn it over to the person as California law, the courts and advice from the AG direct. "Seized pursuant to arrest or discovery" is not the exception to intent to possess, it's just a rule of thumb. Intent to possess is the key and, for small amounts, federal law has transfer as the same as possession. Giving it to the courts is against state and federal law and you would not have a legal excuse to intent to possess any longer.

My oath contains language that I shall uphold the Constitution of the United States which comes prior to any oath to the state of California.

Post the language of your oath. I don't believe the oath is if/then's but and's. (Not specific words, but inclusive and not dependent.) Intentionally failing to follow California law is a violation of that oath. You should also review the concept of federalism. With the commerce clause, the federal government has stepped into all areas of life, but in theory, the U.S. Consititution gives states powers over all aspects not included. Drugs? Oh, yeah, right there in the commerce clause, I forgot.

Likewise, it is possible that the feds will be notified when any such return IS scheduled so that the feds can choose to take action should they so choose. Personally, I think that would be a hoot ... I guess that's my mean streak showing.

I guess the spirit of the law argument and the sincere good will of the police who follow their duties without bias are a bit outdated. I also see you don't agree with the community protector aspect of policing but the invading force theory instead. It also appears the argument over fear of what the feds will do you claim of a post or two ago was a bit of a canard.

As a note, as of August 27th, our agency's legal advisor (and at least one other such law firm I could locate) have advised their clients to adhere to the current state law pending the outcome of any further challenges.

I am so grateful private council has come to the conclusion that police authorized by the state and local government should follow the law of the state and local governments before those state and local governments take the logical and correct next action of firing officials who take the word of private council and violate their oath, the will of the people, state law, state courts and the state AG.

As I said, the previous notice could change with the recent decisions in Garden Grove and by the state appellate courts coupled with the AG's guidelines. Given that, I doubt there will be any wanton withholding of marijuana in defiance of court orders ... but, one can still expect the possibility of fed notification upon the return of marijuana.

That's fair. I hope the legislature or city governments or police departments who serve rather than rule come to a different conclusion and take steps to prevent this. Or, to force the turning over of *all* potential federal violations found like copyright, immigration and other laws where there is no disagreement over the legality of the action.

 

[CdwJava]

Okay ...

No, I don't need to spend time doing research to know why I can do what I do ... no, I don't have a copy of my oath here at home, and as no violation of state law occurred, the question is moot - plus, an unlawful order (if it were so) is not one I am bound to obey, anyway ... the "invading force" theory, as you put it, was a dying concept a dozen years before I got started in this business. And if the feds want to come get a guy who is coming to pick up his pot plants, that's their business - as long as I am not going to get hooked for turning it over to them.

Your assumption that people are violating their oaths and the law are a tad premature since no such decision has been reached, and legal theory appears to still be up in the air on the issue. Your bias in this area is clearly present as is mine. You buy into the Prop 215 idea, I do not. I believe the public was sold a bill of goods, but I follow the law as best as possible given the very murky ground it covers. The AG's guidelines finally give us something to fall back on, but it still does not entirely address the issue of large cultivations and grows. Agencies might be in the position of having to pay back tens of thousands of dollars for damaged "crops" when/if a grow is retroactively deemed to be that of a caregiver (i.e. no prior registration or permission was obtained pursuant to law).

YOU try operating under laws and guidelines that have changed a half dozen times in as many years, and where the policy and practice varies by county and individual DA and judge. It gets very frustrating. With luck, the AG's guidelines will help establish some baseline to work with ... until new case law appears. My county will be adopting its regulations based upon these guidelines and they appeared at a fortuitous time, because we had just begun discussing a county policy just a month earlier. Things will be a lot smoother at those meetings now.

- Carl

 

[tranquility]

You buy into the Prop 215 idea, I do not.

You call it the "Prop 215 idea", I call it THE LAW. If the police started trying to comply with the law on this matter rather than continue to fight it because of personal biases, perhaps there would be less variance and frustration. It's hard to really feel sorry for the group which is the main cause of the frustration for the frustration they feel.

and as no violation of state law occurred,

Actually, state law is clear on the matter. You just don't like it. The law does not become the law only after the U.S. Supreme Court determines it. In our discussion, the hypothetical was a judge ordered you to turn it over, then, that's the law. In reality, to the appellate level in California, the law is to give it back. The arguments you make here were made in briefs in front of the court, which rejected them. There has not been a protective order entered to delay the ruling. When do you consider a law the law?

Well, as to the Garden Grove decision where the appellate court said:
"the police cannot retain a person’s property
without running afoul of basic constitutional considerations." and then went on to describe those consitutional considerations. And concluded, "It is also why the police cannot continue to
retain his marijuana. Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him."

To that, the California Supreme Court said, on appeal:
"The petition for review is denied.
The request for an order directing depublication of the opinion is denied"

Keeping the marijuana *is* a violation of state law and, at least within California, a violation of the state and federal constitution..