Case Name: City of Garden Grove v. Sup. Ct. Orange County, District: 4 DCA ,
Division: 3 , Case #: G036250
Opinion Date: 11/28/2007 , DAR #: 17553
Health and Safety Code section 11473.5, subdivision (a), permitting the return of controlled substances lawfully possessed by the defendant, is consistent with the Compassionate Use Act [CUA] (Health & Saf. Code, sec. 11362.5) and is not superseded or preempted by federal drug laws. Following a traffic stop by Garden Grove Police officers for failing to yield at a right light, Mr. Kha consented to a search of his car and a small amount of marijuana was seized from a cloth bag. Marijuana possession charges were subsequently dismissed by the prosecution when Mr. Kha provided a statement from his doctor authorizing the use of medical marijuana and the trial court then granted Mr. Kha¢s motion for return of the marijuana. The City of Garden Grove filed the instant petition for writ of mandate/prohibition, challenging the order. The court found the city had standing because constitutional concerns respecting the relationship between state and federal law were implicated and the city would not otherwise be able to obtain judicial review of the trial court¢s order. The court then ruled that for purposes of state law, Mr. Kha, by virtue of meeting the criteria of the CUA, was in legal possession of the marijuana. The City argued that the federal Controlled Substance Act [CSA], prohibiting marijuana possession, nevertheless, justified destruction of Mr. Kha¢s property legally held under the state law. But judicial enforcement of the CSA is precluded because possession of medical marijuana does not constitute an offense under both federal and state laws. (People v. Tilehkooh (2003) 113 Cal.App.4th 1433 [state courts have no authority to enforce federal statutes].) The court also rejected the claim that the supremacy clause [Article VI of the U.S. Constitution] allowed the court to find the federal drug laws preempted state law insofar as allowing return of medical marijuana to qualified users. There is an assumption against preemption and in enacting the CSA, Congress made it clear that it did not intend to preempt the states on the issue of drug regulation. (Gonzales v. Oregon (2006) 546 U.S. 243, 251.) Although the court found against preemption, it made it clear that the CUA does not exempt medical marijuana possession from federal prosecution. Finally, the court found that under the 14th Amendment of the U.S. Constitution, due process does not permit police to retain a person¢s legally possessed property and Mr. Kha¢s property was ordered returned to him. In light of the finding that federal law does not control in this case, the court did not reach the argument that destruction of Mr. Kha¢s marijuana would violate the Tenth Amendment which reserves residual powers of the federal government to the states.