MARIJUANA WHICH “EXCEEDS REASONABLE AMOUNT NEEDED FOR PERSONAL MEDICAL PURPOSES” CAN BE DESTROYED
On June 28, 2013, the California Court of Appeal, First Appellate District, held in the case ofLittlefield v. County of Humboldt, that law enforcement can destroy marijuana when it can be shown that the arrestee did “not posses [the] marijuana for his personal medical purposes.”
It should be noted that this case was, originally, not certified for publication. Based, in part, upon a request for publication prepared by JONES & MAYER, as general counsel to the California State Sheriffs’ Association, the Court reconsidered its decision and ordered publication on July 25, 2013.
Facts
The Court noted that “(t)hefacts are largely undisputed. Humboldt County Sheriff’s deputies, assisted by CAMP (Campaign Against Marijuana Planting) agents, conducted open field marijuana eradication operations in a remote area of Humboldt County. Following aerial surveillance, deputies and CAMP agents entered a garden that contained 118 marijuana plants ranging from three to eight feet tall with an average diameter of six to seven feet. The flowering plants were heavily laden with buds. A loaded rifle with an attached 50 round “banana clip” was found in a small tent inside the garden.” A second plot was discovered with an additional 96 flowering marijuana plants.
Several medical marijuana recommendations were posted at the property, including recommendations for Littlefield, which “indicated the use of up to two ounces of cannabis per day, the equivalent of 45.6 pounds per year.” Littlefield arrived during the search and argued that the recommendations allowed them to posses the marijuana. A deputy conferred with Sgt. Wayne Hanson who informed him that, in his opinion, “the recommendations were invalid and the marijuana should be seized. Hanson determined that the aggregated canopies of both gardens clearly exceeded the 100 square foot canopy per person limitation determined to be reasonable under County guidelines for medical marijuana prosecutions.”
The total canopy of the two gardens was approximately 5,862 square feet, or 977 square feet of canopy per person, nearly 10 times more than the 100 square foot canopy considered reasonable under the guidelines.
The combined weight of the marijuana in both fields was approximately 1,508 pounds. The Court noted, in a footnote, that “(t)his is approximately 24,128 ounces per person, or enough of a supply for two ounces of cannabis daily for six people for five and one-half years.”
Subsequently, all of the marijuana in excess of ten pounds was destroyed. The remainder was held by the Sheriff’s office as evidence.
“No arrests or criminal charges resulted from the raid, but the Littlefields sued the County for damages for, among other things, the replacement value of the confiscated cannabis, physical and mental suffering, emotional distress, and medical expenses. Plaintiffs estimate its replacement value between $683,724 and $1,367,448.” The trial court concluded that the seizure and destruction was lawful and granted summary judgment for the County.
“While plaintiffs assert that the mere presentation of a medical marijuana recommendation immunizes a qualified user from arrest, seizure or prosecution, independent of the quantity, the case law has not quite caught up with such an unequivocal assertion. The First District in People v. Strasburg,(2007) 148 Cal.App.4th 1052 . . . states: ‘the status of [a] qualified patient does not confer an immunity from arrest. Law enforcement officers may arrest a qualified patient for marijuana offenses where they have probable cause, based on all of the surrounding facts including qualified patient status, when they have reason to believe, for instance, that the arrestee does not possess marijuana for his personal medical purposes.’” Plaintiffs appealed to the Court of Appeal.
Seizure and Arrest
The Court of Appeal found that the seizure was supported by probable cause. “Over15 years ago in People v. Trippet, (1997) 56 Cal.App.4th 1532, Division Two of this district declined a criminal defendant’s invitation to interpret California’s medical marijuana statutes ‘as a sort of ‘open sesame’ regarding the possession, transportation and sale of marijuana in this state.’ We will do the same. To explain why, we revisit the interface between the Compassionate Use Act (CUA) and Medical Marijuana Program (MMP), which together enable the use and possession of medically indicated marijuana, and laws of considerably longer standing that more generally control the seizure and destruction of contraband.”
“The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee’s having a physician’s recommendation or approval. Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient’s ‘personal medical purposes.”’ (Emphasis in original.)
Referring to the California Supreme Court decision, People v. Kelly, (2010) 47 Cal.4th 1008, the Court of Appeal stated that, “Kelly invalidated the MMP’s restrictions on the quantity of medical marijuana that may legally be possessed as an unconstitutional legislative amendment to a voter enacted initiative, but left its collateral provisions in place. Therefore, as the trial court in this case observed, in the post-Kelly world we are once again left with the “reasonable amount” standard that controlled before the Legislature enacted the MMP. Fortunately, we are not without guidance on its meaning and application.”
The court in People v. Trippet said, “we are not remotely suggesting that, even with a physician’s ‘recommendation or approval,’ a patient may possess an unlimited quantity of marijuana. The ballot arguments of the proponents . . . are simply inconsistent with the proposition that either the patient or the primary caregiver may accumulate indefinite quantities of the drug. The statute certainly does not mean, for example, that a person who claims an occasional problem with arthritis may stockpile 100 pounds of marijuana just in case it suddenly gets cold. The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. What precisely are the ‘patient’s current medical needs’ must, of course, remain a factual question to be determined by the trier of fact.”
In the instant case, the Court noted that “(t)he most salient fact here is the vast quantity of marijuana found growing on the Littlefields’ property. Even [Jason] Browne, plaintiffs’ medical marijuana expert, tacitly acknowledged that quantity can be considered in distinguishing between lawful and unlawful possession when he stated that ‘dispensaries generally do not provide ‘pounds’ of cannabis to their members at any given time . . . as it could rightly be perceived as diversion into the criminal market.’ On the undisputed facts, the trial court reasonably found that ‘[t]he amounts possessed were of such a quantity to lead a person of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. The amounts possessed were so well beyond the standards promulgated by state and local authorities to lead a reasonable person to believe that the marijuana was possessed for unlawful purposes.’”
Furthermore, said the Court, “when a user has a written recommendation from a physician, the Attorney General’s 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Guidelines) direct that police officers ‘should use their sound professional judgment to assess the validity of the person’s medical-use claim’ based on the totality of the circumstances, including the quantity of marijuana present and the presence of weapons.”
“We agree with the trial court that the County’s undisputed evidence established that the officers had probable cause, based on the amount of marijuana under cultivation and plaintiffs’ extremely generous medical marijuana recommendations, to believe the seized marijuana was unlawfully possessed.”
Destruction of the Plants
Health & Safety Code Section 11479 addresses the destruction of controlled substances without court order, as follows: “Notwithstanding Sections 11473 and 11473.5, at any time after seizure by a law enforcement agency of a suspected controlled substance, that amount in excess of 10 pounds in gross weight may be destroyed without a court order provided the agency satisfies specified requirements. Among those requirements are that the agency make a determination that it is not reasonably possible to preserve the suspected controlled substance in place, or to relocate it to another location.”
“The day after the raid, Deputy Cyrus Silva filed an affidavit stating that the ‘Sheriff of Humboldt County has determined that it is not reasonably possible to preserve the marijuana in place or at another location.’” The Court concluded that the affidavit met the statutory requirements, and the County’s compliance with section 11479 was sufficient.
HOW THIS AFFECTS YOUR AGENCY
As was articulated in the letter sent by CSSA urging publication of this decision, “this case involved interdiction by Sheriff’s deputies of a large marijuana grow consisting of over 200 fully developed marijuana plants that would yield approximately 1,508 pounds of marijuana upon harvest. Unfortunately, this is a scenario encountered all too frequently by California law enforcement officials, particularly the Sheriff members of CSSA who are responsible for policing the more rural counties within the State.”
“The Littlefield opinion provides invaluable guidance to law enforcement officials concerning the proper standards that they should apply with respect to seizure and potential destruction of the marijuana when confronted with claims by the growers of qualified patient status under the Compassionate Use Act and the Medical Marijuana Program Act.”
There are several significant aspects to this case. First, the County of Humboldt had guidelines in place setting forth a limit on the size of gardens (100 square feet) which were considered reasonable. Second, the deputies checked with their supervisor who was able to conclude that the amount of marijuana being cultivated was far more than the amount set forth in the doctor’s recommendation and, therefore, did not meet the “reasonable amount” standard. Third, the Sheriff immediately issued a memo setting forth justification for the destruction of the marijuana in excess of the 10 pounds referenced in the H&S code.
And, finally, the Court concluded that, “despite the posted medical marijuana recommendations, ‘[t]he amounts possessed were of such a quantity to lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. The amounts possessed were so well beyond the standards promulgated by state and local authorities to lead a reasonable person to believe that the marijuana was possessed for unlawful purposes.’”
All these factors were considered by the Court of Appeal in deciding that the arrest of the individuals, the seizure of the plants, and the destruction of the plants were in compliance with the law. It is important, therefore, that all of these elements be present when an agency engages in such law enforcement activity, since it will be necessary to justify those actions if challenged.
As with all legal issues, it is imperative that you seek out and secure advice and guidance from your agency’s designated legal counsel. As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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