Medical Marijuana Isn’t Immune From Seizure

SAN FRANCISCO (CN) - The mere presence of users' medical marijuana recommendations at a grow site did not immunize the crop from seizure, nor did it require police to prove the growers were guilty of a crime before they could destroy the harvest, a California appeals court ruled.

The case stems from a 2008 open field eradication project by Humboldt County Sheriff's deputies and agents from the Campaign Against Marijuana Planting (CAMP) task force.

"The facts are largely undisputed," P.J. McGuiness and J. Jenkins wrote for the appellate court.

Officers "entered a garden that contained 118 marijuana plants ranging from three to eight feet tall with an average diameter of six to seven feet," according to the ruling. Four medical marijuana recommendations were posted on the gate, for Sylvia, Timothy and Roscoe Littlefield, specifying conditions that included degenerative joint disease, low back pain, anxiety and glaucoma and indicating "the use of up to two ounces of cannabis per day, the equivalent of 45.6 pounds per year," the court noted. A fourth recommendation, for Jeffrey Libertini, did not specify a condition or dose.

Officers found a second plot on the property with "an additional 96 flowering marijuana plants from three to eight feet tall and averaging four to six feet wide. Medical marijuana recommendations for Richard Littlefield and Summer Brown, each of which indicated up to two ounces daily for degenerative joint disease and low back pain, were posted in this garden," the appellate court wrote.

The Sheriff's Department "believed the recommendations were invalid and the marijuana should be seized." The appellate court noted the quantity was "enough of a supply for two ounces of cannabis daily for six people for five and one-half years."

An affidavit by Deputy Cyrus Silva stated that destroying the marijuana complied with Health and Safety Code requirements and that it was not reasonably possible to store it elsewhere. "Humboldt County does not have adequate storage facilities, or sufficient personnel to guard the marijuana. In addition, recently harvested marijuana gives off great volumes of heat and may erupt into fire," he wrote. Most of the two large crops were destroyed, though some samples were kept for evidence, and a few other plots on the property were left undisturbed.

The Littlefield family sued Humboldt County for "the replacement value of the confiscated cannabis, physical and mental suffering, emotional distress, and medical expenses," the appellate court wrote, but Humboldt County Superior Court Judge Christopher Wilson did not find their arguments compelling.

Wilson ruled that the quantity of marijuana would lead "a person of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused," that the requirements of probable cause had been met and that the Littlefields did not lawfully possess the marijuana. He did not buy statements by an expert witness for the Littlefields, who failed to convince him that he had specific knowledge of the plaintiffs' medical needs.

California's First Appellate District reviewed the facts of the case and examined each of the Littlefields' arguments, agreeing with Wilson that the seizure and destruction of the marijuana was neither unconstitutional nor illegal.

The appellate court agreed that the seizure was supported by probable cause and cited case law on the limits of medical marijuana legalization. "The most salient fact here is the vast quantity of marijuana found," the ruling states. "The CUA [Compassionate Care Act, California's medical marijuana statute] protects the possession of marijuana only in an amount reasonably related to the user's current medical needs." The appellate court agreed that the seizure was supported by probable cause and cited case law on the limits of medical marijuana legalization. "The most salient fact here is the vast quantity of marijuana found," the ruling states.

The court also expressed skepticism about the recommendations themselves. "Each purports to authorize the use of up to two ounces per person per day, or 45.6 pounds of cannabis per year - 15 times the three pounds per year deemed reasonable under the County's Ordinance," the court wrote (emphasis in original).

The Littlefields claimed the County unlawfully destroyed their stash, but the appeals court agreed with Deputy Silva's affidavit, quoted above, that the destruction complied with the Health and Safety Code.

The appeals court backed the trial court's ruling that the Littlefields did not bring admissible evidence showing their possession was lawful, and ultimately concluded the trial court's ruling was sound.

Kym Kemp, a writer who has followed medical marijuana issues in Humboldt County, told Courthouse News that the ruling could influence the dynamics of marijuana policing. Referring to California's Proposition 215, the 1996 ballot initiative that legalized marijuana use with a doctor's recommendation, Kemp said, "An officer in the field now can feel more comfortable pulling out plants even with 215 recommendations, without having to worry about being sued or having to reimburse the growers. It could be a game changer for growers and for law enforcement."

Khurshid Khoja of Greenbridge Corporate Counsel, former general counsel for the Emerald Growers Association, told Courthouse News, "Given the number of plants that were seized and destroyed and the nature of the recommendations, it seems like a reasonable decision by the court."

He added that there are some medical marijuana preparations on the market today, such as highly concentrated oils, which might require the use of up to two ounces a day to produce, but that the Littlefields had not brought a credible medical witness to testify during summary judgment proceedings that they needed that much.

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