Update: Court Considers Medical Marijuana Seizures

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Garden Grove police are appealing a judge's decision to return the drug to a patient. A Huntington Beach man wants the appeals court to ask police to return his marijuana.

If police officers seize marijuana legally kept by a medical marijuana patient, should they have to give the property back?

That was the central question today before a three-justice panel of the state's Fourth Appellate District in Santa Ana, which heard arguments of two local cases that medical marijuana advocates say reflect a statewide problem: Judges vary in their rulings on whether medical marijuana patients should be given back the drug.

Felix Kha of Garden Grove had eight grams seized from him in June 2005 during a traffic stop. Criminal charges were later dismissed after Kha proved he had a prescription for the drug – which he uses for back pain.

Kha then asked a judge to make Garden Grove police give him back the marijuana. Orange County Judge Linda Marks agreed, and ordered the department to return it.

But the city of Garden Grove disputed Marks' ruling, and filed an appeal. Magdalena Lona-Wiant, an attorney for Garden Grove, argued police shouldn't be forced to give medical marijuana back – since marijuana is illegal under federal law, though legal in California for medicinal purposes.

"Officers have to follow both state and federal law,'' she said.

The city also wants the appellate court to rule the marijuana should be destroyed, she added.

Not all law enforcement agencies agree. Last November, then-state Attorney General Bill Lockyer had filed a brief in support of Kha getting his marijuana back.

Today, Kha, 22, attended the hearing. He is pursuing the case with the legal assistance of Americans for Safe Access, a pro-medical marijuana nonprofit group.

"All police need to do is to follow the law,'' he said.

Besides the Kha case, justices heard about what happened to Jim Spray of Huntington Beach. Police confiscated five ounces of marijuana from Spray, as well as his growing equipment in November 2005. He had a prescription for the drug, also for back pain. But Orange County Superior Court Judge Daniel T. Brice, ruled he shouldn't get his marijuana back.

"The people have spoken in their voting record for support of medical marijuana,'' said Spray, who also attended the hearing. "This vacillation from city to city and various judges shouldn't be happening."

But Orange County Deputy District Attorney Stephan Sauer argued the appellate panel shouldn't overturn the lower court's ruling – which was made before prosecutors made the decision to not prosecute Spray.

Instead, he suggested Spray file another motion for the return of property, and that a judge should hold a hearing on whether Spray legally possessed the drug.

A ruling on both cases is expected within 90 days.



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Source:
Author: RACHANEE SRISAVASDI
Contact: rsrisavasdi@ocregister.com
Copyright: 2007 The Orange County Register
Website: Appellate court considers medical marijuana seizures by police