Vol. 23 No. 23- U.S. Supreme Court Rejects Garden Grove Case

December 04, 2008

On December 1, 2008, the United States Supreme Court refused to review the case ofGarden Grove v. Superior Court (Kha).  This case, as many of you will recall, involved the seizure of marijuana from Felix Kha, following a traffic stop.  He subsequently produced a doctor’s recommendation in court, resulting in the charge of possession being dismissed pursuant to Proposition 215.  The superior court judge then ordered the City of Garden Grove to return the marijuana to Mr. Kha, which the City refused to do on the basis that it would be a violation of federal law.

The City challenged the court’s order but did not claim that Proposition 215 was unconstitutional.  The City merely argued that the court’s order to return the marijuana would be a violation of federal law since Mr. Kha was not authorized, under federal law, to possess marijuana, even for medical use. As counsel for the California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA), and the California Peace Officers Association (CPOA) we prepared and submitted an amicus curiae brief from the three associations, supporting the City’s position.

The case worked its way through the state court system with the Superior Court and the Court of Appeal ruling that it was not an unlawful order and, ultimately, the California Supreme Court refused to accept it for review.  As noted above, the U.S. Supreme Court has now done the same thing.  The U.S. Supreme Court gave no reason for its action, it just refused to accept the case.  As a result, the efforts to appeal the superior court’s order to return the marijuana have been exhausted.


It is still unlawful to possess, transfer, or use marijuana under California law.  However, there is a defense to arrest, confiscation of the drug, and/or prosecution (under California law), if one can prove that he or she is a qualified patient or caregiver, under California’s Compassionate Use Act (CUA).  It is an affirmative defense but, pursuant to SB 420, which was passed to assist in the implementation of the CUA, arrest can be avoided if appropriate proof of qualified patient status is provided to the officer.  That can be in the form of a valid recommendation from a physician or a county issued identification card which is provided to those who present such proof to the county in which they reside.

If one is in possession of marijuana but does not have proof that he or she is a qualified medical marijuana patient, the officer can still cite and/or arrest the person (depending on the amount of drug involved) and seize the marijuana as evidence.  It would then be incumbent on the defendant to prove to the court his or her legitimate medical status.  Once that has been accomplished, and if the court issues an order to the law enforcement agency to return the marijuana, it must be returned.  This process is also set forth in the recently published guidelines from the Attorney General’s Office dealing with medical marijuana.

With the rejection of the case by the U.S. Supreme Court the fight is over regarding this aspect of California’s medical marijuana law.  As strange as it may seem, the state has the right to decide to not prosecute someone, under California law, for the cultivation, use and possession of the drug, even though it is a felony under federal law.  The federal government, however, is still able to arrest and prosecute anyone for the cultivation, possession and/or use of the drug … it’s up to them.

As always, we urge that you confer with your agency’s legal counsel for advice and guidance on this legal issue.  If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1440 or via e-mail at mjm@jones-mayer.com.