Suing CA PD for not releasing drug property?

What is the name of your state? CALIFORNIA
After my possession case for marijuana was dismissed, I sought the return of my $250 marijuana bubbler (a bong-pipe, in essence) since a California Court of Appeals decision (4th district, div. 2 ) on April 8th of '03 seems to have asserted the legality of devices used to smoke marijuana. I want to know if, once the DA gets around to finially sending a release of property notice sometime next week to the Scotts Valley PD, I will have a case against the police dept. to get either my pipe back, or the $250+fees+extra expenses like gas b/c I now live in Reno, NV. I have spoken in detail with a seargent friend of mine who works there, as well as their property clerk. While the Sgt. was receptive, he said he couldnt do anything about it and the woman in charge of property was both discourteous and firm in her refusal to release it to me even once the notice is received, due to the fact that "resin" was inside it. Number 1, that "resin" is nothing more than gummed ash resulting from the water filtration, and Number 2, I don't even think resin matters b/c not only have police/ chp/ deputies on multiple stops and searches given my pipes back to me, full of resin, but the Appeals court decision seems to encompass all marijuana pipes, which would all be naturally resinated. Also, I offered to clean the piece spotlessly with isopropyl alcohol before they released it so as to assuage their concerns, yet they were still unreceptive to this idea, insitising they needed a release of prop. notice before they could even consider giving it back to me. Please let me know if you think I have a case (small claims???) against the PD, this is more a matter of principle for me than it is money. I think the appeals court's docket number is E031600, if anyone is interested in looking at the complete decision. The last line in the court's decision reads "We therefore conclude that the possession of a device for smoking marijuana, without more, is not a crime in California." Thanks, Stefan Reich

SmartGecko said:

What is the name of your state? CALIFORNIA
After my possession case for marijuana was dismissed, I sought the return of my $250 marijuana bubbler (a bong-pipe, in essence) since a California Court of Appeals decision (4th district, div. 2 ) on April 8th of '03 seems to have asserted the legality of devices used to smoke marijuana. I want to know if, once the DA gets around to finially sending a release of property notice sometime next week to the Scotts Valley PD, I will have a case against the police dept. to get either my pipe back, or the $250+fees+extra expenses like gas b/c I now live in Reno, NV. I have spoken in detail with a seargent friend of mine who works there, as well as their property clerk. While the Sgt. was receptive, he said he couldnt do anything about it and the woman in charge of property was both discourteous and firm in her refusal to release it to me even once the notice is received, due to the fact that "resin" was inside it. Number 1, that "resin" is nothing more than gummed ash resulting from the water filtration, and Number 2, I don't even think resin matters b/c not only have police/ chp/ deputies on multiple stops and searches given my pipes back to me, full of resin, but the Appeals court decision seems to encompass all marijuana pipes, which would all be naturally resinated. Also, I offered to clean the piece spotlessly with isopropyl alcohol before they released it so as to assuage their concerns, yet they were still unreceptive to this idea, insitising they needed a release of prop. notice before they could even consider giving it back to me. Please let me know if you think I have a case (small claims???) against the PD, this is more a matter of principle for me than it is money. I think the appeals court's docket number is E031600, if anyone is interested in looking at the complete decision. The last line in the court's decision reads "We therefore conclude that the possession of a device for smoking marijuana, without more, is not a crime in California." Thanks, Stefan Reich

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**A: duplicate pothead post.

don't be a fool... you're asking for trouble.

your bong was full of resin... that's like some crackhead asking for his crackpipe back. that thing is FULL of illegal resin.

That must be some Crazy Horse this idiot was shooting

How to get your bong back

Dear Stefan (dude)

Please pay no attention to the prior boneheads (since they are obviously not bongheads), who utterly failed to respond to your most excellent question and ridiculed you for asking it. Had they in fact known the law (or read the case you cited), they would have realized that you are quite correct, dude.

Possession of a "bong" is not against the law, and I totally think that includes the resin on it. This is because "marijuana" has been decriminalized and its definition includes "the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin." (H & S Code § 11018).

In re: Johnny O (2003) 107 Cal. App. 4th 888; 132 Cal. Rptr. 2d 471; 2003 Cal. App. LEXIS 507, definitely decided (as you stated) that "possession of a device for smoking marijuana, without more, is not a crime in California." But, dude! When was your possession of marijuana case filed and dismissed? Did you go to trial? What were you charged with? Timing is everything in the law, especially since you ask a time-sensitive question.

The rightous thing to do dude is to go talk to a local lawyer - since you live in Reno now, you prolly wanna go to a Scotts Valley criminal lawyer. Why are you relying on what the cops tell you to do? They charged you with a crime and took your bong, all against the law of California!

In order to obtain return of property seized by police, you must make a motion to the court in which your case was dismissed within 60 days, or your bong will go up in smoke. Check it out -

The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both "houses" and "effects." United States v. Jeffers (1951) 342 U.S. 48, 51 [72 S. Ct. 93, 95, 96 L. Ed. 59]. An arresting officer may seize those fruits and evidences of crime or those contraband articles which are in plain sight or in his or her immediate and discernible presence at the time of arrest. Weeks v. United States (1914) 232 U.S. 383, 392 [34 S. Ct. 341, 344, 58 L. Ed. 652].

Persons may not be deprived of property without due process of law, nor may the Legislature expropriate private property by mere legislative enactment. Cal. Const., art. I, § 15; People v. Beck (1994) 25 Cal. App. 4th 1095 [31 Cal. Rptr. 2d 44]. "The right to regain possession of one's property is a substantial right which may not be dependent upon the whim and caprice of a court. . . ." Franklin v. Municipal Court (1972) 26 Cal. App. 3d 884, 896 [103 Cal. Rptr. 354]. Continued official retention of legal property with no further criminal action pending violates the owner's due process rights. People v. Superior Court (1972) 28 Cal. App. 3d 600, 619 [104 Cal. Rptr. 876].

A criminal defendant may move for return of property before trial on the ground the seizure was unreasonable. Penal Code § 1538.5. A defendant may also bring a nonstatutory motion for return of property seized by warrant or incident to arrest which was not introduced into evidence but remained in possession of the seizing officer. Gershenhorn v. Superior Court (1964) 227 Cal. App. 2d 361, 364-365 [38 Cal. Rptr. 576].

The court may order the return of an exhibit to its owner prior to the final determination of the action upon stipulation of the parties or upon notice and motion, if no prejudice will be suffered by either party and a complete photographic record is made of the released exhibit. Penal Code § 1417.2. After property is filed or introduced in a criminal action, it may be returned to the owner, destroyed, sold, or retained by the county for public use, depending on the property's character. Property may also be forfeited to or destroyed by the state if used in the manufacture, sale, delivery, import or export of controlled substances in violation of the California Uniform Controlled Substances Act (Health & Saf. Code, § 11000 et seq.)

Penal Code § 1417.5 provides: "Except as provided in Section 1417.6, 60 days after the final determination of a criminal action or proceeding, the clerk of the court shall dispose of all exhibits introduced or filed in the case and remaining in the clerk's possession, as follows:

"(a) The court shall, on application of the owner or any person entitled to possession of the exhibits or an agent designated in writing by the owner, order the release of any exhibits that will not prejudice the state. . . ."

Penal Code § 1417.6(a) provides: "(a) The provisions of Section 1417.5 shall not apply to any dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or any property of any kind or character whatsoever the possession of which is prohibited by law and that was used by a defendant in the commission of the crime of which the defendant was convicted, or with which the defendant was armed or that the defendant had upon his or her person at the time of the defendant's arrest.

Any of this property introduced or filed as an exhibit shall be, by order of the trial court, destroyed or otherwise disposed of under the conditions provided in the order no sooner than 60 days following the final determination of the criminal action or proceeding.

If the owner does not apply for return of the property and the property is valuable but not stolen or embezzled, it may be transferred to a county agency for sale or retained by the county for a public use (§ 1417.5, subd. (b)(2).) If the property is money or currency, it is deposited in the county treasury to become property of the county if unclaimed after two years. (§ 1420.) Unclaimed stolen or embezzled property is destroyed. (§ 1417.5, subd. (b)(1).) The destruction of an exhibit may not be ordered before the date when a criminal action or proceeding becomes final.

Anyways dude, Johnny O is still fairly new and I have no idea how it will be interpreted by the lower courts, especially with regard to return of marijuana paraphrenelia. But I think that you would have a good argument for return of the bong, since it is not illegal to possess it (and so its destruction should be equally illegal). But you better get a court order and not rely on the cops, because if you do not assert your rights, you will waive them ... and then your $250 water extravaganza will truly go up in smoke.

OK Dude?

(my parody, for those who have no sense of humor, is only for dramatic effect, and is not meant to encourage or condone the use of drugs, but I do encourage and promote the use of your brain cells and some common sense)

hey Einstein... if bongs are legal why is Tommy Chong in federal prison?

Tommy Chong

Because he PLED GUILTY to federal charges for interstate sale under an obscure federal law, after his bong manufacturing business was essentially entrapped by the Feds to send a large order across state lines. Chong regrets pleading guilty and now thinks he should have fought it. Read about it -

http://www.lacitybeat.com/article.php?id=442&IssueNum=26

But the question above appears to be a State case for possession that was dismissed, not a Federal case for interstate distribution. Federal and state charges are different, thats why you can be prosecuted under state law and then again under federal law.

Re: How to get your bong back

GoforLaw said:

"marijuana" has been decriminalized

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where do you live... Uzbekistan?

Yes, although the term is a bit simplistic, for all practical purposes it is correct - mere possession of less than an ounce is a misdemeanor punishable by only a $100 fine, and there is no jail time imposed. In fact, diversion to education and rehabilitation prgrams is the only option. H & S Code 11357. When people talk about "decriminalization" it is meant to indicate that there is no jail time (i.e. focus on the criminal punishment), not that there isnt some law making it illegal. On top of that Prop 215 (medical marijuana) places significant restrictions on prosecution in case of doctor recommended marijuana use.

So, please dont try to quote me out of context and go ask your law professor for advice before you start criticising. Here is a link to a web page that has a good summary of CA statutes and decisions about marijuana. Learn something!

http://www.chrisconrad.com/expert.witness/calmjlaws.shtml

I still don't see how police can be expected to turn over a legal item that is covered with contraband.

Gee, when I use "decriminalization" I use it to mean making something that was formally an illegal activity a legal one. Like selling beer on Sundays, or tying an elephant to a parking meter.

Silly me.

Smoking marijuana is legal in CA?

So I can smoke a joint in front of my local police station without criminal sanction? No.

It's still illegal yet the criminal sanctions have been reduced from a felony to a misdemeanor.

Speeding is a misdemeanor subject to criminal sanctions... this is analagous to marijuana possession. It's still illegal.

"decriminalization" is a legal "term of art," but then you wouldnt really know what that is, right? i never said marijuana use was legal. try reading things and analyzing them - you will need this skill if you intend to pass the bar

"decriminalization
n. the repeal or amendment of statutes which made certain acts criminal, so that those acts no longer are crimes subject to prosecution. Many states have decriminalized certain sexual practices between consenting adults, "loitering" (hanging out without any criminal activity), or outmoded racist laws against miscegenation (marriage or cohabitation between people of different races). Currently, there is a considerable movement toward decriminalization of the use of some narcotics (particularly marijuana) by adults, on various grounds, including individual rights and contention that decriminalization would take the profit out of the drug trade by making drugs available through clinics and other legal sources."

"Possession of marijuana is a misdemeanor under California Health and Safety Code Section 11357. Possession of one ounce (28.5 gms) or less is punishable by a maximum $100 fine; jail time is possible for larger amounts or for hashish, which is an optional felony ("wobbler"). Possession offenders can avoid conviction by making a preguilty plea under Penal Code 1000, in which case their charges are dismissed upon successful completion of a diversion program. Possession offenses are expunged from the record after two years under Health and Safety Code Sections 11361.5 and 11361.7."

Wow... I hope you're not an alum of my school. But then again I would think that my school's ranking is high enough that it's graduates understand the definition of "decriminalized". Sure they're making the sentences more lenient... but according to H&S11357 it is still a crime.

UPDATE: Looked up "decriminalize" in Black's Legal Dictionary. It defines it as the legislative act of making a formerly illegal act legal. Since marijuana possession still warrants criminal sanctions, it is not legal. Since it is not legal, it has not been decriminalized.

NOTE: do not listen to GoforLaw ever again.