Drug Law

My Day in Court Defending Medical Marijuana

| by ASA

By Joe Elford

Today, I had an oral argument before the Court of Appeal for the Third Appellate District, which is a state court in Sacramento. The case is Williams v. Butte County , which involves a small patient collective, which was harassed by the Butte County Sheriff’s Office. Specifically, Williams and six other patients pooled their labor and resources to maintain a 41-plant garden on Williams’ property. During one of the notorious Butte County sweeps several years ago, Deputy Sheriff Jacob Hancock came to Williams’ property without a warrant and required him to tear down all but twelve of the plants upon threat of arrest. The Deputy allowed Williams to keep six plants for himself and six plants for his wife.

By all apearances, this illegal constructive seizure of the collective’s medicine was based on a Butte county policy that forbids patient collectives, unless every member of the collective lives on the property or physicially tills the soil. This is a restriction not found anywhere in California law (picture REI, for instance), so ASA sued. And won . The trial court agreed that the Butte County policy conflicts with and is preempted by state law, which does not contain such restrictions on collectives. Further, the court agreed with ASA that a patient could state a claim for unreasonable search and seziure under California law in such a circumstance.

Dissatisfied, the County of Butte took the matter up with the Court of Appeal for the Third District by filing a writ. Later, it was joined by the police associations (California Peace Officers’ Association, California Police Chiefs’ Association, and California Sherriffs’ Association), who seem to be filing amicus briefs against us in nearly every ASA case. Over a year later, the case was heard by the Third District.

The Court asked a series of tough questions to Butte County. Early on, one Justice asked whether there is no restriction on seizures of marijuana by state officials, since it remains illegal under federal law. After County Counsel answered that that was probably so, another Justice of the three-Justice panel remarked that this would seemed to violate the spirit of Proposition 215 and asked whether the electorate would be "mystified" by a decision that would allow law enforcement to seize marijuana from patients without any restriction whatsoever. This was a very welcome start.

When it was my turn, I started by quoting from the California Supreme Court’s opinion in People v. Mower to the effect that "probable cause depends on all of the circumstances, including one’s status as a qualified medical marijuana patient." This would mean that there is a restriction on the ability of law enforcement to seize medicine from qualified patients — there must be probable cause under state law. And there was none here. Furthermore, the officer acted in this case without a warrant, and without any exigent circumstance to justify a warrantless seizure — he knew that Williams wanted to keep the marijuana and was not going to destroy it on his own. He had no good excuse for failing to get a warrant.

The court certainly appreciates that this is a very interesting case and will give it thoughtful consideration. I am cautiously optimistic about the outcome, but will not hazard a guess. I will say, though, that I did not expect as a child to spend Memorial Day reading medical marijuana cases in preparation for oral argument.