Vol. 22 No. 16- The Court to California Cops: “Give Back The Dope”

December 3, 2007

On November 28, 2007, the California Court of Appeal (Fourth Appellate District) ruled, in the case of City of Garden Grove v. Superior Court of Orange County (Kha) , that once a charge of possession of marijuana has been dismissed by a court, pursuant to Proposition 215, the arresting agency must return the property to the person charged with the possession.

Following a traffic stop of Felix Kha the police seized approximately one third of an ounce of marijuana, for which he had a doctor’s recommendation.  As a result, the prosecutor dismissed the possession charge and the court ordered the return of the marijuana.  The City challenged the order on the basis that such action would violate the federal law.

The City did not challenge the constitutionality of Proposition 215; it merely challenged the court’s order to return the drug.

The firm of Jones & Mayer filed an amicus brief on behalf of the California State Sheriffs’ Association (CSSA), the California Police Chief’s Association (CPCA), the California Peace Officers’ Association (CPOA), the California District Attorneys Association (CDDA), and sixteen (16) individual California cities, supporting the position of Garden Grove .

The Court of Appeal points out that, …the Attorney General of California sought leave to file an amicus curiae brief (on behalf of Felix Kha).” The Court then states, Contrary to the Attorney General’s position, these local law enforcement associations urge us to overturn the trial court’s ruling .”  

The Court continues to refer to the amicus brief by noting that law enforcement insists that “… ordering the return of Kha’s marijuana is not only legally improper, it would undermine police morale and effectiveness and send the wrong message to local law enforcement officers who are involved in the interdiction of illegal drugs.”

(Emphasis added.)

Unfortunately, the Court held that “…we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound…” to return the drug to Kha.

City vs. State

The Court acknowledged that the “City sees itself caught in the middle of a conflict between state and federal law – a position with which we can certainly sympathize – on the issue of medical marijuana and does not want to be perceived as facilitating a breach of federal law by returning Kha’s marijuana to him.”

The Court also noted that “the City is not contesting the right of qualified patients to use medical marijuana pursuant to state law ;  it just does not want to be in the position of having to return marijuana to such a patient once it has been lawfully seized by a member of its police force.” (Emphasis added.)

The Court then sets forth California ‘s position. “Siding with the trial court, the Attorney General contends: (1) the City lacks standing to challenge the [trial] court’s order; (2) Kha’s possession of marijuana was legal under state law; (3) state law favors the return of lawfully possessed marijuana;…” in addition to several other points.

Ironically, as to the third point raised by the Attorney General, Proposition 215 does not require, nor even comment about, the return of seized marijuana (unlike the law in Oregon which doescall for its return).

Standing to Sue

The Court of Appeal, reluctantly, ruled that a city has standing to challenge a state court’s order to return the drug, despite the position taken by the Attorney General that it does not have standing.  It notes that the state and Kha disagree with amici (the law enforcement associations and 16 cities) on this issue.

The Court points out that the city is merely the custodian of property seized during an arrest and must return it if charges are dismissed and the property is not, per se, contraband. “(I)f the court determines the defendant was in lawful possession of the drugs, then they might not be destroyed at all.  It is up to the court to decide whether destruction is appropriate in a given case; the police role is limited.”

The Court notes that “in seeking to cobble together a standing argument, the City claims the legalization of medical marijuana has contributed to a marked increase in violent crime in Garden Grove and other cities throughout the state, thereby impacting the City’s citizenry and its police force.”  However, the Court states that the City provided no evidence to support that claim.

The Court also rejects the City’s argument that it would be “aiding and abetting a violation of federal law if its officers return Kha’s marijuana to him.”  The Court held that to be guilty of aiding and abetting one must have an intent to aid in the commission of a crime and since the City, obviously, is reluctantly returning the drug, it isn’t guilty of such an offense.

Additionally, the Court held that the federal immunity statute [21 U.S.C. sec. 885 (d)] protects officers from federal prosecution for returning the drug because they would be “…lawfully engaged in the enforcement of [a] law or municipal ordinance relating to controlled substances.”

The Court concludes that, “in short, it seems the City and its police officers really have nothing to lose by returning Kha’s marijuana to him. The possession charge against Kha having been dismissed, the marijuana is not needed as part of an ongoing criminal prosecution.”  Continuing, the Court ruled that, “simply put, it does not appear the City would be adversely affected if its officers carried out the trial court’s order in this case.”

Nonetheless, the Court found that the City had standing to bring this action because of the conflict between state and federal law and “courts have recognized that … state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds.”

Return of the Marijuana

The Court ruled that the drug must be returned because: (1) the City is not authorized to enforce the federal law since possession of marijuana, under these circumstances, is not also a violation of state law; (2) the preemption clause of the federal constitution doesn’t apply; (3) states have a “great latitude under their police powers to legislate as to the protection of the lives, limbs, comfort, and quiet of all persons;” (4) “Congress enacted the CSA [Controlled Substances Act] to combat recreational drug abuse and curb drug trafficking;” and (5) “its goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states.”

Therefore, ruled the Court, “it is …unreasonable to believe returning marijuana to qualified patients who have had it seized by local police will hinder the federal government’s enforcement efforts.”

The Court held that Kha “is a qualified patient whose marijuana possession was legally sanctioned under state law. That is why he was not subjected to a criminal trial, and that is why the state cannot destroy his marijuana. It is also why the police cannot continue to retain his marijuana.  Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him.”


If an officer stops one in possession of marijuana and seizes the drug, the drug will be returned to that person, if and when a court dismisses the underlying charge of drug possession and/or if the prosecutor refuses to file criminal charges against that person.  Until and unless the City of Garden Grove petitions the California Supreme Court for review, and the Court accepts it for review, this case is the “law of the land.”

As always, and especially in a case with as much significance as this one, it is imperative that you secure advice and guidance from your agency’s legal counsel as to how you will proceed.  If you wish to discuss this memo in greater detail, please don’t hesitate to contact me at (714) 446-1400 or by e-mail at mjm@jones-mayer.com.