The Compassionate Coalition

SR police refusing court order to return pot
Marijuana deemed medicinal under state law, but
federal law prevents police from dispensing
By JEREMY HAY
THE PRESS DEMOCRAT
Source: http://www1.pressdemocrat.com/apps/pbcs.dll/article?AID=/20070130/NEWS/701300303/1033/NEWS01

In the latest skirmish across the confused terrain of medicinal marijuana law, Santa Rosa police are refusing a judge's order to return a large amount of marijuana seized by detectives.

The facts are these:
Shashon Jenkins was growing marijuana and selling it. Santa Rosa police arrested him and took the marijuana. A judge said there was evidence enough to try him. But then Jenkins' attorney produced evidence he was a medical marijuana user and caregiver.

Deputy District Attorney Scott Jamar agreed in court and he dropped the case.

And from Sonoma County Judge Lawrence Antolini came this: "It is hereby ordered that all items seized on October 16, 2006, by members of the Santa Rosa Police Department, including marijuana, be returned forthwith" to Jenkins.

But police said no.

"We're not a dispensary, we're not going to give out marijuana," Police Sgt. Eric Litchfield, who supervises the detectives who arrested Jenkins, said in an interview.

Antolini has ordered police back to court March 6 to explain why they shouldn't be held in contempt of court for disobeying his order.

Litchfield said Jenkins has "always been very civil and polite," but federal law, which doesn't recognize medical marijuana use, prohibits him from returning Jenkins' cannabis, about 18 pounds worth.

"It's illegal," Litchfield said. "We've never given marijuana back."

Such showdowns have become familiar since California voters in 1996 passed Proposition 215, which authorized medical use of marijuana.

"This is a problem that is literally all over the state of California," said Martin J. Mayer, chief legal counsel to the California Police Chiefs Association.

Last year, a federal judge dismissed a lawsuit by Pismo Beach seeking a court ruling relieving it of a state judge's order that the city's police department return some marijuana.

In that case, Mayer said, the judge ruled that because police had yet to return the marijuana, they hadn't been exposed to the federal prosecution that they'd argued the court order put them in jeopardy of.

A similar case, involving the Garden Grove Police Department's refusal of a judge's order to return pot, is in Superior Court, he said.

"The order of a judge to a peace officer to return marijuana even though the case was dismissed pursuant to Prop. 215 creates a rock and a hard place for law enforcement because it is unquestionably a violation under a federal law," Mayer said. "In fact, it's a felony."

Such disputes have only increased since the U.S. Supreme Court ruled in 2005 that the federal overnment still can prohibit possession of marijuana in states that have approved its use for medical purposes.

"The issue really is the conflict between federal law and our state and local laws," said Amy Chapman, the Sonoma County public defender who represented Jenkins.

"For Mr. Jenkins, this is absolutely about medical marijuana," she said. "The police, they feel it would be illegal."

On Monday, Jenkins retrieved his computer, cell phone and cash from the Police Department, which has boxed up his pot in its evidence locker. He also hasn't been able to get back his marijuana-growing equipment, which he valued at about $5,000.

"It's a slap in the face," said Jenkins, 26, who said he's used marijuana to relieve anxiety and chronic pain for about six years and supplies about 10 other people with pot he grows.

Jenkins, who has moved to Sonoma from Santa Rosa, sells pre-paid legal insurance.

Oakland attorney William Panzer, who co-wrote Proposition 215 and is involved in two medical marijuana cases working their way through Sonoma County courts, described the Police Department's
stance as, well, balderdash, although in less polite terms.

"It's the cops saying we don't like this law, we don' want to follow it," Panzer said, referring to Proposition 215.

Under the federal controlled substance act, he said, agencies like Santa Rosa police are immune from prosecution if they are enforcing legal statues, such as Proposition 215.

Besides, he said, fear of federal prosecution is a red herring.

"I am personally aware of many, many, many cases where cannabis has been returned by police to an individual, and I'm not aware of one police officer who has been prosecuted," he said.

Mayer said he's unaware of any either but cited "the sense of the difficulty when you ask a peace officer to commit a crime."

For example, in the Pismo Beach case, he said, "In all candor, we didn't expect there would be (federal prosecution), but this is a matter of principle."

Also, he said, "it's a matter of law, we have a conflicting set of laws. Until or unless congress changes the rules, it's still a crime."

In the meantime, he said, police departments unwilling to obey judge's orders have in some cases given the marijuana to federal Drug Enforcement Administration agents for destruction and in other cases to judges who have returned it.

"Don't ask me where," Mayer said. "I won't tell you."