CdwJava
Senior Member
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
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