City of Garden Grove v. Superior Court, No. G036250.

CourtCalifornia Court of Appeals
Writing for the CourtBedsworth
Citation157 Cal.App.4th 355,68 Cal.Rptr.3d 656
PartiesThe CITY OF GARDEN GROVE, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Felix Kha, Real Party in Interest.
Decision Date28 November 2007
Docket NumberNo. G036250.
68 Cal.Rptr.3d 656
157 Cal.App.4th 355
The CITY OF GARDEN GROVE, Petitioner,
v.
The SUPERIOR COURT of Orange County, Respondent;
Felix Kha, Real Party in Interest.
No. G036250.
Court of Appeal, Fourth District, Division 3.
November 28, 2007.

[68 Cal.Rptr.3d 658]

Woodruff, Spradlin & Smart, John R. Shaw, Magdalena Lona-Wiant and Douglas C. Holland, Orange, for Petitioner.

No appearance by Respondent.

Joseph D. Elford, for Real Party in Interest.

Jones & Mayer, Martin J. Mayer and Krista MacNevin Jee, Fullerton, for the California State Sheriffs' Association, the California Police Chiefs' Association, and the California Peace Officers' Association; the California District Attorneys Association; the City of Bakersfield, the City of Burbank, the City of Costa Mesa, the City of Dixon, the City of Exeter, the City of Huntington Beach, the City of La Habra, the City of Newport Beach, the City of Ontario, the City of Placentia, the City of Redding, the City of Santa Clara, the City of Tulare, the City of Visalia, the City of Whittier and the City of Yreka, as Amici Curiae in support of Petitioner.

James Humes, Chief Assistant Attorney General, Stacy Boulware Eurie, Assistant Attorney General, Christopher E. Krueger and Teri L. Block, Deputy Attorneys General, for Attorney General Bill Lockyer as Amicus Curiae in support of Respondent and Real Party in Interest.

OPINION

BEDSWORTH, Acting P.J.


We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed. This request is terra incognita, as will be most of the many confusing aspects of the current tension between California marijuana laws and those of the federal government. Our conclusions are therefore more a matter of analytical accouchement than precedential accretion. But we are convinced by the Attorney General's argument that governmental subdivisions of the state are bound by the state's laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less. Accordingly, we deny the City's petition.

During a traffic stop, Garden Grove police seized about a third of an ounce of marijuana from real party in interest Felix Kha. However, because Kha had a doctor's approval to use marijuana for medical reasons, the prosecutor dismissed the drug charge he was facing. The trial court then granted Kha's motion for return of property and ordered the Garden Grove Police Department to give him back his marijuana.

68 Cal.Rptr.3d 659

Petitioner, the City of Garden Grove, seeks a writ of mandate compelling the trial court to reverse its order. It does not contest the dismissal of the underlying drug charge, nor does it frontally challenge California's medical marijuana laws. Rather, it contends Kha is not entitled to the return of his marijuana because that drug is generally prohibited under federal law. It asks us to make the marijuana's confiscation paramount.

FACTS

This case was resolved without the presentation of any formal evidence, and none of the proceedings were transcribed. Accordingly, the facts and procedural history are derived from the exhibits and declarations submitted in connection with the writ petition.

On June 10, 2005, Garden Grove police officers stopped Kha for failing to yield at a red light. Kha consented to a search of his car, and the officers seized a cloth bag from his front passenger seat. Inside the bag there was a smoking pipe and a plastic container labeled "Medical Cannabis." The officers opened the container and found 8.1 grams, or less than a third of an ounce, of marijuana.

Kha said he purchased the marijuana from "a lab in Long Beach" and used the drug because he suffers from severe pain. He also said he had a doctor's referral to use marijuana and gave the officers a piece of paper that "looked [to them] like a referral." Nonetheless, the officers seized the marijuana and cited Kha for unlawfully possessing less than one ounce of the drug while driving. (Veh.Code, § 23222, subd. (b).) They also cited him for running the red light. (Veh.Code, § 21453, subd. (a).)

TRIAL COURT PROCEEDINGS

Kha pleaded guilty to the traffic violation, but he contested the drug charge. During a pretrial conference, he presented the court with a "Physician's Statement" from Dr. Philip A. Denney. Dated June 1, 2005, the statement authorizes Kha to use cannabis as medicine for an undisclosed "serious medical condition." It also contains Kha's acknowledgment that "cannabis remains illegal under federal law." After calling Dr. Denney's office to verify the information contained in the statement, the prosecutor dismissed the drug charge for lack of evidence. The prosecutor, however, opposed Kha's request to have the marijuana returned to him.

The trial court set a hearing on that matter for the following day, at which time Kha filed a formal petition for the return of his property, i.e., the marijuana. According to the prosecutor, the court "explained to the parties that the [drug] charge had been dismissed, the marijuana was, therefore, not illegally possessed, and that in the absence of any authority saying [the court] may not return the property, the property must be returned." The trial court therefore ordered the Garden Grove Police Department to return the marijuana to Kha.

CONTENTIONS

The City of Garden Grove (the City) petitions for a writ of mandate and/or prohibition directing the trial court to vacate its order and enter a new one denying Kha's motion for return of property. 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. Because marijuana possession is generally prohibited under federal law, the City contends the trial court's order is legally flawed and

68 Cal.Rptr.3d 660

constitutes an abuse of discretion. The City also maintains that to the extent state law authorizes or mandates the return of Kha's marijuana, it is preempted by federal law.

We invited and received an informal response from Kha. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) He claimed he is legally entitled to the return of his marijuana under state law and as a matter of due process. He also argued that federal law is not controlling in this proceeding and that the Tenth Amendment to the United States Constitution effectively prohibits federal interference with California's medical marijuana laws.

In its informal reply, the City argued for the first time that although the drug charge against Kha was dismissed, he is not entitled to the protections of California's medical marijuana laws. The City also reiterated its position that consistent with federal drug policy, Kha's marijuana must be destroyed.

On the heels of the parties' informal briefing, the Attorney General of California sought leave to file an amicus curiae brief. Indeed, the Attorney General claimed the City should have served him with its petition because it was challenging the very constitutionality of California's medical marijuana laws. (See Cal. Rules of Court, rule 8.29(c)(1).)

The City responded with a clarification of its position on the preemption issue. It represented it is not seeking to have the state's medical marijuana laws declared unconstitutional on preemption grounds. Instead, it is simply arguing those laws are preempted to the extent they require the return of federal contraband. In other words, for purposes of this proceeding, 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.

We ordered Kha to show cause why mandate should not issue and granted the Attorney General's request to file an amicus curiae brief. Siding with the trial court, the Attorney General contends: (1) The City lacks standing to challenge the court's order; (2) Kha's possession of marijuana was legal under state law; (3) state law favors the return of lawfully possessed marijuana; (4) federal law does not preclude the return of Kha's marijuana; and (5) under the Tenth Amendment, state courts cannot be compelled to implement federal drug laws. Kha's return to the City's petition echoes these points. His principal argument is that federal law does not override his right under state law and due process to the return of his property.

In its reply brief and in its answer to the Attorney General's amicus brief, the City reiterates its original arguments and continues to question Kha's right to possess marijuana under state law. The City also contends it has standing to challenge the trial court's order because it has a special interest in keeping marijuana off the streets and its police officers may be criminally liable if they return Kha's marijuana to him. The City further argues that while the Tenth Amendment prevents the federal government from ordering the City to take affirmative action to carry out federal law, its police force has the right to enforce federal law on its own accord by seizing and destroying Kha's marijuana.

Finally, we have received an amid curiae brief on behalf of the California sheriffs', police chiefs', and peace officers' associations.1 Contrary to the Attorney

68 Cal.Rptr.3d 661

General's position, these local law enforcement associations urge us to overturn the trial court's ruling. They insist 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...

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50 practice notes
  • Pack v. Superior Court of L. A. Cnty., No. B228781.
    • United States
    • California Court of Appeals
    • 4 Octubre 2011
    ...under obstacle preemption.30 (City of Garden 132 Cal.Rptr.3d 652 Grove v. Superior Court, supra, 157 Cal.App.4th at pp. 384–385, 68 Cal.Rptr.3d 656.) The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana (People v. Mower, supra, 28 Cal.4th at p.......
  • Pack v. Superior Court of L.A. Cnty., No. B228781.
    • United States
    • California Court of Appeals
    • 18 Enero 2012
    ...under obstacle preemption. 30[132 Cal.Rptr.3d 652]( CITY OF GARDEN grove v. superior Court, suPra, 157 Cal.App.4th at pp. 384–385, 68 Cal.Rptr.3d 656.) The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana ( People v. Mower, supra, 28 Cal.4th at......
  • Qualified Patients Ass'n v. City of Anaheim, No. G040077.
    • United States
    • California Court of Appeals
    • 1 Diciembre 2010
    ...impossible to comply simultaneously with both federal and state law. As we explained in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385, 68 Cal.Rptr.3d 656 ( Garden Grove ), "no conflict" arises "based on the fact that Congress has chosen to prohibit th......
  • County of San Diego v. San Diego Norml, No. D050333.
    • United States
    • California Court of Appeals
    • 31 Julio 2008
    ...clause "because ... the agencies experienced significant revenue loss"]; City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] [entity asserted materials it seized from medical marijuana user could not be returned because federal preemption princip......
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49 cases
  • Pack v. Superior Court of L. A. Cnty., No. B228781.
    • United States
    • California Court of Appeals
    • 4 Octubre 2011
    ...under obstacle preemption.30 (City of Garden 132 Cal.Rptr.3d 652 Grove v. Superior Court, supra, 157 Cal.App.4th at pp. 384–385, 68 Cal.Rptr.3d 656.) The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana (People v. Mower, supra, 28 Cal.4th at p.......
  • Pack v. Superior Court of L.A. Cnty., No. B228781.
    • United States
    • California Court of Appeals
    • 18 Enero 2012
    ...under obstacle preemption. 30[132 Cal.Rptr.3d 652]( CITY OF GARDEN grove v. superior Court, suPra, 157 Cal.App.4th at pp. 384–385, 68 Cal.Rptr.3d 656.) The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana ( People v. Mower, supra, 28 Cal.4th at......
  • Qualified Patients Ass'n v. City of Anaheim, No. G040077.
    • United States
    • California Court of Appeals
    • 1 Diciembre 2010
    ...impossible to comply simultaneously with both federal and state law. As we explained in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385, 68 Cal.Rptr.3d 656 ( Garden Grove ), "no conflict" arises "based on the fact that Congress has chosen to prohibit the possession of......
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    • United States
    • California Court of Appeals
    • 31 Julio 2008
    ...commerce clause "because ... the agencies experienced significant revenue loss"]; City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] [entity asserted materials it seized from medical marijuana user could not be returned because federal preemption principl......
  • Request a trial to view additional results
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    • The Journal of High Technology Law Vol. 22 Nbr. 2, July 2022
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    ...given to the federal government by the Constitution to the States and the people); City of Garden Grove v. Superior Court, 68 Cal. Rptr. 3d 656, 680 (Ct. App. 2007) (determining that California state law required return of property to medical marijuana user and was not preempted by the (38)......

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