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Judge Reverses Order To Return Pot

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In closely watched case, Antolini sets hearing on medical-pot possession

A Sonoma County judge reversed himself Tuesday and said Santa Rosa police - for now - don 't have to return 19 pounds of pot seized from a medical marijuana user.

Postponing a decision on whether police are obligated to return the marijuana to Shashon Jenkins, 26, of Sonoma, Judge Lawrence Antolini said he will hold a hearing to determine if Jenkins was legally entitled to possess the marijuana in the first place.

Assistant City Attorney Mike Casey agreed that the city wouldn't destroy the marijuana in the meantime.

Police arrested Jenkins in October and seized 19 pounds of pot, which officers testified is worth at least $60,000.

Prosecutors dropped the charges after Jenkins produced a doctor's approval and other documentation that show he has a prescription to use medical marijuana and grows it for a group of others.

Antolini will set a hearing date this week to hear arguments on whether Jenkins legally possessed the marijuana.

Tuesday's decision came after Antolini ordered police to return to Jenkins "all items seized on Oct. 16, 2006, by members of the Santa Rosa Police Department, including marijuana" after the criminal case was dismissed.

When police balked, arguing it was a violation of federal law to give marijuana to someone, Antolini ordered the city to court to explain why it was defying his order.

On Tuesday , Casey asked the judge to reconsider his order to return the marijuana, which Antolini did, at least temporarily.

But the judge appeared eager to push the evolution of medical marijuana case law, several times referring to conflicting local, state and federal laws and appellate court rulings on the issue.

"Let's do it," he said. "Sooner or later, someone's going to have to make some rulings."

Medical marijuana advocates are keeping an eye on Antolini's decisions.
"This case has statewide ramifications," said Aaron Smith, the statewide coordinator for Safe Access Now, a medical marijuana advocacy group. "Everyone is closely watching it."

In a similar case pending in Sonoma County courts, Sonoma County Sheriff's deputies have refused to return 25 pounds of marijuana taken from the home of an employee of Marvin's Garden, a medical marijuana cooperative in Guerneville.

In that case, Judge Raima Ballinger has told county attorneys that it is up to the court to decide whether the marijuana should be returned and that the job of the Sheriff's Department was to act as custodian of the confiscated property.

A hearing is scheduled for May in that case.

Both cases are products of Proposition 215, the Compassionate Use Act approved by voters in 1996, which authorized the use of marijuana for medical use. Since then, California counties have set their own limits for what amount of the drug users and caregivers should be allowed to have.

But federal law still doesn't recognize any legal use for marijuana. And law enforcement agencies throughout the state have challenged court decisions granting the return of marijuana with the routine return of otherwise legal property seized during investigations.

During Tuesday's hearing in the Jenkins case, Antolini cited two recent appellate court decisions regarding medical marijuana and whether - and how much of it - should returned if it can be shown the owner committed no crimes.

"It seems to me the unlawfulness is something that needs to be addressed, formally addressed," he said.

But if it should be returned, how much should be returned, Antolini asked aloud.

"If in Sonoma County you can have 3 pounds, in Marin County it's 1 pound, in San Francisco it's 6 pounds, and Orange County says you can have none, is that equal protection of the law?" he said.

Antolini also noted Oregon's law, which specifically requires the return of medical marijuana.

"As a judge, all I'm trying to do is follow the law," he said. "Are there cases, or are we interpolating statutes? If (California's law) is left blank, isn't that a legislative job, unless the courts are going to be inventing law?"

Source: The Press Democrat (Santa Rosa, CA)
Author: Lori A. Carter
Contact: letters@pressdemo.com
Copyright: 2007 The Press Democrat
Website: Santa Rosa Press Democrat
 
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