cannabisnews.com: Illegal Seizure of MMJ in California is a Crime





Illegal Seizure of MMJ in California is a Crime
Posted by FoM on September 17, 1999 at 12:36:01 PT
By John Entwistle, Jr.
Source: Marijuana.org
Let’s say the unthinkable happens: your medical pot is taken by police in California under any circumstances. You can immediately petition a local judge to review the situation and order the police to return your marijuana right away. 
You take the properly issued and signed order of the Court to the police evidence room and they have to give you back all your medicine (& grow-lights etc.) Return of Property: Medical Marijuana.What’s happening to me? Generally speaking, medical marijuana seizures are a form of challenge by the police of your stated position that you are a medical marijuana user with the written or oral recommendation or approval of a medical doctor. This challenge is often accompanied by a secondary challenge from your local district attorney (or god forbid, the State Attorney General) in the form of criminal charges being filed against you. Sometimes a judge has signed a search warrant on the basis of events preceding your experience with the police, other times the police are acting with little or no immediate guidance (like the CHP on a traffic stop). Basically, they’re calling you a liar and are treating you like a crook.What do I do first?Think clearly. Ask yourself some questions. Do I have a ticket? Am I charged with a crime? Did they have a search warrant? What was taken? Did they know you were a medical marijuana user? Did they take your doctor’s note or did they call your doctor? Did you tell them or post the grow site so they would know you are a medical user?Was there a search warrant?Then get the affidavit to support the search. This is usually a very revealing document, which the judge had to read before signing an application by a law enforcement officer for a warrant to search a person’s property. It will become available within ten days of the search and you can get it from the clerk of the courts, down at the county courthouse. When you read it, see if it informs the judge that the marijuana was medical. This is key because if they knew the pot was medical and failed to tell the judge, then the cops are in trouble. Likewise, if the judge signed a warrant based on allegations of medical marijuana cultivation then the judge is in potential hot water. Was there a police report? You definitely want to get a copy of this document, available within ten days of whatever happened. Get it from the clerk of the courts, down at the county courthouse. This is the law enforcement officer’s official statement of his/her side of the story, what happened from their point of view. Three parties can claim a police report: The cops (including the DA), the defendant (the person charged with a crime), and the victim (if there is one). They have to stick to their story, so you want to find out what that story is gonna be, plus this really lets you know what’s going on. If the defendant is in jail or otherwise indisposed that person can order the report turned over to their representative by writing a letter to their lawyer (public defender or private attorney) asking that the entire case file be released to whomever the defendant chooses. That person should also get a copy of the letter and then that person can claim the file from the public defender (or private attorney) on behalf of the person in jail.If the report is "sealed" that usually indicates that an informant was used and the police don't want to let that piece of info out. You can still get the documents, you just have to file a special motion. Pain in the neck, or what?What do I do now?If you can do it physically, start growing again immediately. Don’t lose any time starting back up. Be public and ask for neighborhood assistance, it will be there for you. Basically you will respond by getting before a judge and proving that you have a doctors approval or recommendation to be using medical marijuana. Having established the legitimacy of your cultivation of medical marijuana you will then ask for the plants back. The judge will issue the order and your outta there. How do I prove I have a doctor’s approval to use medical marijuana?You can do this any number of ways. The easiest is a note from your doctor, and/or a nice friendly affirmation that he’s behind you if the police call him to ask if it’s really true. That saves everyone the most time and trouble. But you can always subpoena the doctor to the courtroom and put him on the stand and see if he’ll tell a lie. (E.g. Did you or didn’t you have that discussion with that patient? Did you use the word recommend or approve in that conversation?). That’s the hardball method and is not preferable for a lot of reasons, but it beats you going to jail. You can also subpoena your medical records from the doctor, and often these contain reference to your medical marijuana use (i.e. approval).What’s the legal basis for my petition for the return of my medical marijuana?One law we can use is California State Penal Code 1540. Fortunately for us, PC 1540 is short and to the point stating simply: California Penal Code 1540. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.We can also cite California State Health & Safety Code Section 11473.5 (A). This is the procedure recommended by the Sonoma County Counsels Office for cases where there are no charges filed against the medical user of marijuana who wants his/her pot back. (This is a distinction without a difference as the DA has almost three years in which to file charges and patients demanding their pot back can hardly be expected to wait three years to see if they’re going to be charged and assigned a case number. Besides, Chico Health Center used a PC 1540 petition to get their medical records back without being charged with any crime.) California Health & Safety Code 11473.5. (a) All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant. Source for legal citations: State of California Legislative Counselhttp://leginfo.public.ca.gov/calaw.htmlBasically these are grounds to petition the court for a return of property. You can do it formally in writing with all kinds of fancy points, authorities, supportive testimony and assorted memorandums. Or you can simply ask the judge in the context of almost anything that puts you in front of that judge to simply order the goods returned. The actual order of the court is usually very short and directly to the point, often just one page signed by tha judge.Do I need a lawyer?Perhaps, but not necessarily. Are you growing a lot (like over 60 plants)? Do you collect guns? Do you sell a little on the side? Are there any accusations (charges) not related to medical marijuana? If you answer yes to these questions then you probably need a lawyer. If the answer to these questions is no and your basically not accused of much or the district attorney is refusing to prosecute you, then you may be able to get the whole thing straightened out without paying any money to any lawyers. If you do decide to retain a lawyer, you will still want all the documents like the police report and the affidavit to support the search and you don’t want to pay a lawyer to get those. Another option is that you can represent yourself. This is called ‘attorney pro-per’ and offers complete control over your own destiny. Particularly recommended for "do-it-yourselfers."Click The Link To Visit:Californian's For Compassionate Use's Excellent Home Page!http://www.marijuana.org/http://www.marijuana.org/PotReturnPageSpecial Report by Californians for Compassionate UseLegislative Analyst John Entwistle, Jr.Released: November 21, 1998; Update 9-11-99Cannabis News Medical Marijuana Archives:http://www.cannabisnews.com/news/list/medical.shtml
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