Court ruling to return marijuana may not be honored elsewhere

Attorneys who represent criminal defendants in marijuana cases say a San Francisco County Superior Court appellate division ruling is a pivotal decision in the wake of state voters legalizing the drug with Proposition 64 in 2016.

But they aren't equally confident courts around the state will honor the ruling.

The case began in January when Robert Smith was arrested in San Francisco on suspicion of making a threat with a gun. Police found almost 22 grams of marijuana in his backpack.

After criminal threat and disorderly conduct charges were dropped, Smith petitioned for the return of his marijuana from the San Francisco Police Department, but the lower court denied his request. Smith v. Superior Court of San Francisco, APP-18-008417 (S.F. Super. Ct. App., filed Aug. 16, 2018).

His case was taken up by Lara Bazelon, director of the Criminal Juvenile Justice and Racial Justice Clinical Programs at the University of San Francisco School of Law. She said the ruling "binds on all San Francisco County judges."

"But judges in other jurisdictions could continue to use the preemption arguments rejected by the appellate division here, leading to uneven enforcement of the law," Bazelon added. Bruce Margolin, a Beverly Hills attorney specializing in defending marijuana cases, said he thought courts and police departments were now likely to treat recreational marijuana the same way they have treated medical marijuana in the past.

"I've had courts return [medical] marijuana on a number of occasions," Margolin said, noting once a judge did it personally when a police officer refused.

He added, "Prop. 64 specifically says marijuana is not probable cause to search, is not contraband, and they cannot seize it unless there is some other incidental reason," such as it being used in a moving car.

The unanimous three-judge panel cited City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, the case that found police generally did have to return medical marijuana absent another crime.

"The argument [defendants] are violating the federal Controlled Substances Act has never been received very well by California courts," said Ronald Richards, also a Beverly Hills attorney who regularly defends marijuana cases.

The six-page opinion also noted law enforcement officers are exempted from the law, meaning returning Smith's property would not constitute "distributing marijuana."

Acting Presiding Judge Linda Colfax, writing for the panel, found none of the exemptions to the U.S. Constitution's supremacy clause were triggered. These include if the federal government was already occupying a regulatory space or if state law was in direct conflict with the federal law.

Colfax found the state law could be preempted if Congress modified the law to explicitly proclaim the relevant state actions are in conflict.

But Richards said such a change would quickly be challenged under the 10th Amendment.

"It would be a severe expansion of federal authority if they started making laws saying states have no ability to regulate their own populations," Richards said.

Bazelon agreed, saying, "Other states have legalized marijuana without prompting a federal legislative reaction, and as a practical matter, I don't think the votes are there to pass any such law."

The San Francisco County district attorney's office said it is not a party in the case. A call to the attorney for the San Francisco Police Department was not returned.