Wednesday, October 17, 2018
Page 3
Appellate Division Says Man’s Confiscated Recreational Marijuana Must Be Returned
By a MetNews Staff Writer
The San Francisco Superior Court Appellate Division has granted a writ petition brought by a man seeking the return of his recreational marijuana, confiscated during his arrest, because the state’s legalization of the drug does not conflict with federal statutes outlawing it.
The petitioner, Robert T. Smith, was arrested with 21.8 grams of marijuana on his person, and charged with making criminal threats and disturbing the peace; the charges were dismissed, but retired Santa Clara Superior Court Judge Robert M. Foley, on assignment to the San Francisco Superior Court, denied Smith’s request for an order returning his stash.
The Appellate Division’s order reversing Foley was filed Aug. 16, but first appeared on the California courts’ website on Monday after the Court of Appeal chose not to transfer the case to itself.
Smith’s possession of the drug was recreational; under Proposition 64, passed last year, it is legal for a person at least 21 years of age to possess up to 28.5 grams of cannabis.)
The Appellate Division found that the new recreational marijuana laws do not conflict with the federal Controlled Substances Act (“CSA”), which makes most possession or distribution of marijuana a federal crime.
The opinion declares:
“California Law requires law enforcement officers to return ‘lawfully possessed’ marijuana to its owner. The CSA, however, prohibits the distribution of marijuana without regard to whether state law permits its recreational use….The San Francisco Police Department would be returning the instant marijuana pursuant to a court order, and not acting as drug ‘pushers’ the CSA was designed to combat. Accordingly, there is no ‘positive conflict’ between California Law and the CSA such that the two could not consistently stand together.”
The case is Smith v. Superior Court.
Copyright 2018, Metropolitan News Company