Santa Rosa police refusing court order to return pot

SANTA ROSA, CA: SR police refusing court order to return pot


Marijuana deemed medicinal under state law, but federal law prevents
police from dispensing


By JEREMY HAY
THE PRESS DEMOCRAT


In the latest skirmish across the confused terrain of medicinal
marijuana law, Santa Rosa police are refusing a judge's order to
return a large amount of marijuana seized by detectives.


The facts are these:


Shashon Jenkins was growing marijuana and selling it. Santa Rosa
police arrested him and took the marijuana. A judge said there was
evidence enough to try him. But then Jenkins' attorney produced
evidence he was a medical marijuana user and caregiver.


Deputy District Attorney Scott Jamar agreed in court and he dropped the case.


And from Sonoma County Judge Lawrence Antolini came this: "It is
hereby ordered that all items seized on October 16, 2006, by members
of the Santa Rosa Police Department, including marijuana, be returned
forthwith" to Jenkins.


But police said no.


"We're not a dispensary, we're not going to give out marijuana,"
Police Sgt. Eric Litchfield, who supervises the detectives who
arrested Jenkins, said in an interview.


Antolini has ordered police back to court March 6 to explain why they
shouldn't be held in contempt of court for disobeying his order.


Litchfield said Jenkins has "always been very civil and polite," but
federal law, which doesn't recognize medical marijuana use, prohibits
him from returning Jenkins' cannabis, about 18 pounds worth.


"It's illegal," Litchfield said. "We've never given marijuana back."


Such showdowns have become familiar since California voters in 1996
passed Proposition 215, which authorized medical use of marijuana.


"This is a problem that is literally all over the state of
California," said Martin J. Mayer, chief legal counsel to the
California Police Chiefs Association.


Last year, a federal judge dismissed a lawsuit by Pismo Beach seeking
a court ruling relieving it of a state judge's order that the city's
police department return some marijuana.


In that case, Mayer said, the judge ruled that because police had yet
to return the marijuana, they hadn't been exposed to the federal
prosecution that they'd argued the court order put them in jeopardy
of.


A similar case, involving the Garden Grove Police Department's refusal
of a judge's order to return pot, is in Superior Court, he said.


"The order of a judge to a peace officer to return marijuana even
though the case was dismissed pursuant to Prop. 215 creates a rock and
a hard place for law enforcement because it is unquestionably a
violation under a federal law," Mayer said. "In fact, it's a felony."


Such disputes have only increased since the U.S. Supreme Court ruled
in 2005 that the federal government still can prohibit possession of
marijuana in states that have approved its use for medical purposes.


"The issue really is the conflict between federal law and our state
and local laws," said Amy Chapman, the Sonoma County public defender
who represented Jenkins.


"For Mr. Jenkins, this is absolutely about medical marijuana," she
said. "The police, they feel it would be illegal."


On Monday, Jenkins retrieved his computer, cell phone and cash from
the Police Department, which has boxed up his pot in its evidence
locker. He also hasn't been able to get back his marijuana-growing
equipment, which he valued at about $5,000.


"It's a slap in the face," said Jenkins, 26, who said he's used
marijuana to relieve anxiety and chronic pain for about six years and
supplies about 10 other people with pot he grows.


Jenkins, who has moved to Sonoma from Santa Rosa, sells pre-paid legal
insurance.


Oakland attorney William Panzer, who co-wrote Proposition 215 and is
involved in two medical marijuana cases working their way through
Sonoma County courts, described the Police Department's stance as,
well, balderdash, although in less polite terms.


"It's the cops saying we don't like this law, we don't want to follow
it," Panzer said, referring to Proposition 215.


Under the federal controlled substance act, he said, agencies like
Santa Rosa police are immune from prosecution if they are enforcing
legal statues, such as Proposition 215.


Besides, he said, fear of federal prosecution is a red herring.


"I am personally aware of many, many, many cases where cannabis has
been returned by police to an individual, and I'm not aware of one
police officer who has been prosecuted," he said.


Mayer said he's unaware of any either but cited "the sense of the
difficulty when you ask a peace officer to commit a crime."


For example, in the Pismo Beach case, he said, "In all candor, we
didn't expect there would be (federal prosecution), but this is a
matter of principle."


Also, he said, "it's a matter of law, we have a conflicting set of
laws. Until or unless congress changes the rules, it's still a crime."


In the meantime, he said, police departments unwilling to obey judge's
orders have in some cases given the marijuana to federal Drug
Enforcement Administration agents for destruction and in other cases
to judges who have returned it.


"Don't ask me where," Mayer said. "I won't tell you."


Published: Tuesday, Jan 30, 2007


THE ISSUE: Santa Rosa police seized about 18 pounds of marijuana from
Shashon Jenkins, above, in October. A judge and prosecutors have
determined the pot was for medicinal purposes, but police say federal
law prevents them from releasing it.



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