State v. Okun, 1 CA–CV 12–0094.

• Court: Court of Appeals of Arizona
• Citation: 296 P.3d 998,651 Ariz. Adv. Rep. 4,231 Ariz. 462
• Docket Number: No. 1 CA–CV 12–0094.,1 CA–CV 12–0094.
• Parties: STATE of Arizona, Plaintiff/Appellant, v. Valerie Ann OKUN, Defendant/Appellee.
• Decision Date: 10 January 2013

231 Ariz. 462
296 P.3d 998
651 Ariz. Adv. Rep. 4

STATE of Arizona, Plaintiff/Appellant,
v.
Valerie Ann OKUN, Defendant/Appellee.

No. 1 CA–CV 12–0094.

Court of Appeals of Arizona,
Division 1, Department E.

Jan. 10, 2013.

[296 P.3d 999]

Jon R. Smith, Yuma County Attorney By Edward P. Feheley, Deputy County Attorney, Theresa W. Fox, Deputy County Attorney, Yuma, Attorneys for Appellant.

Donovan Law, PLLC By Michael J. Donovan, Yuma, Attorneys for Appellee.

OPINION
JOHNSEN, Judge.

¶ 1 Authorities stopped Valerie Okun entering Arizona near Yuma and seized marijuana and other contraband from her car. The State filed drug charges against Okun, but dismissed them after she produced proof she is permitted to possess marijuana for medical purposes under the Arizona Medical Marijuana Act. After the charges were dropped, the superior court granted Okun's request for the return of the marijuana. In this appeal from that order, the State argues Arizona law requires forfeiture of any marijuana seized by law enforcement and also contends the Yuma County Sheriff cannot return the marijuana to Okun without risk of violating the federal Controlled Substances Act. We affirm the superior court's order requiring the Sheriff to return the marijuana to Okun. Because Arizona law allows Okun to possess the marijuana, it is not subject to forfeiture under state law. Moreover, the Sheriff is immune from prosecution under the federal law for acts taken in compliance with a court order.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Authorities stopped Okun's car at a Border Patrol checkpoint and found marijuana. State drug charges against her were dismissed, however, after she showed she is authorized to possess the drug under California's Medical Marijuana Program, and thereby may possess the drug under Arizona's Medical Marijuana Act. See

[296 P.3d 1000]

Ariz. Rev. Stat. (“A.R.S.”) §§ 36–2801(17) (West 2013) (defining “visiting qualifying patient”), –2804.03(C) (West 2013) (visiting qualifying patients authorized under laws of other states also entitled to legally possess medicinal marijuana in Arizona); Cal. Health & Safety Code § 11362.71 (West 2013).¹

¶ 3 At Okun's request and without opposition from the State, the superior court then ordered the return of the seized material. After the order issued, however, the Yuma County Sheriff refused to return the marijuana to Okun. Okun filed a motion for order to show cause, which the court granted over the State's objection. The State's timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) (West 2013) and –2101(A)(1) (West 2013).

DISCUSSION A. The Arizona Medical Marijuana Act.

¶ 4 The Arizona Medical Marijuana Act (“AMMA”), passed by voters in 2010, added a chapter to Title 36 that establishes conditions allowing medicinal use of marijuana. Initiative Measure, Prop. 203 (approved by election Nov. 2, 2010, eff. Dec. 4, 2010). As described by the Arizona Legislative Council's ballot measure analysis, “the purpose of th[e] act was to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana.” Ariz. Sec'y of State, Ariz. Ballot Prop. Guide, Gen. Election–Nov. 2, 2010 73, available at http:// azsos. gov/ election/ 2010/ info/ Pub Pamphlet/ english/ prop 203. pdf.

¶ 5 The AMMA allows a patient with a debilitating medical condition to obtain a registration identification card that permits possession and use of marijuana for medicinal purposes. A.R.S. §§ 36–2801(9), (13), (14), –2804.02 (West 2013). Section 36–2811(B)(1) (West 2013) protects registered qualifying patients who possess an allowable amount of marijuana from “arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court.” SeeA.R.S. § 36–2801(1) (defining “allowable amount”). Additionally, “visiting qualifying patients” holding equivalent identification cards issued under the laws of another state have the same protection. A.R.S. §§ 36–2801(17), –2804.03(C). The State does not dispute that Okun possesses a valid California-issued identification card that permits her to possess an allowable amount of marijuana in Arizona.²

B. Okun's Property Was Not Summarily Forfeited Pursuant to A.R.S. § 13–3413(C).

¶ 6 The State first argues the superior court erred in ordering the Sheriff to return the marijuana to Okun because the drug is subject to summary forfeiture under A.R.S. § 13–3413(C) (West 2013). In relevant part, § 13–3413(C) provides that marijuana “seized in connection with any violation of this chapter or which come[s] into the possession of a law enforcement agency [is] summarily forfeited.” We review de novo the superior court's interpretation of a statute. TDB Tucson Group, L.L.C. v. City of Tucson, 228 Ariz. 120, 123, ¶ 6, 263 P.3d 669, 672 (App.2011); State v. Givens, 206 Ariz. 186, 187, ¶ 2, 76 P.3d 457, 458 (App.2003).

¶ 7 We conclude § 13–3413(C) does not compel the summary forfeiture of the marijuana seized from Okun. Addressing first the initial clause of the provision the State cites, law enforcement authorities did not seize the drug from Okun “in connection with” a drug offense under Arizona law. As noted, the State does not dispute that Okun has a state-law right to possess the drug. Cf. United States v. 608 Taylor Ave., 584 F.2d 1297, 1302–03 (3d Cir.1978) (motion for return of property should be granted once criminal proceedings have ended).

[296 P.3d 1001]

¶ 8 Nor may the State properly rely on the second clause of § 13–3413(C), which allows summary forfeiture of any marijuana that comes “into the possession of a law enforcement agency.” Other subsections of § 13–3413 allow the State to bring civil forfeiture proceedings with respect to items such as money, books and equipment when they are used in a chapter 34 drug offense. In contrast, the items enumerated in subsection (C)—“[p]eyote, dangerous drugs, prescription-only drugs, marijuana, narcotic drugs and plants from which such drugs may be derived”—are summarily forfeited because the mere possession of such items constitutes a criminal offense. SeeA.R.S. §§ 13–3402 to –3408 (West 2013).

¶ 9 In approving the AMMA, however, Arizona voters decided that a qualified patient does not commit a criminal offense by possessing an allowable amount of marijuana. Consistent with that voter-approved directive, the AMMA mandates that...