"There's over a hundred years of case law that says the state courts have no business enforcing federal code," argued Lou Koory, attorney to an Arroyo Grande man demanding that cops return his 20.4 grams of medical marijuana.
Grover Beach police seized Kenneth Parson's medicinal stash during a routine traffic stop. The patient was later charged with possession.
Koory's assertion is now the basis for a formal petition to the appellate court a local, three-judge panel at the first floor of the state appeal process. The court's decision could potentially set a precedent in the region for how police handle this matter in the future.
Prosecutors absolved Parson of misdemeanor possession earlier this year, but the city refused to return the property on the basis that doing so would constitute distribution under federal code. County judge Michael Duffy denied Parson's request on July 11, but ordered a 30-day injunction on destruction of the marijuana for the appeal process to get rolling. Late the afternoon of Aug. 9, Koory submitted the proper documentation.
Parson's predicament recently attracted the interest of Bay Area lobby group Americans for Safe Access. Lead counsel Joe Elford assisted in drafting a petition, which cites 38 cases not the least of which is Chavez vs. Superior Court. Grover Beach city attorney Martin Koczanowicz used the 2004 Chavez case in which police were ordered to destroy the defendant's pot after felony drug charges fizzled out as the basis to refute the return of Parson's property.
Koory and Elford maintain that, unlike in Chavez, Parson possessed the marijuana legally. The legal duo would likely push the matter on to the appeals court in Ventura if the local body denies the motion.
The appellate court's ruling would levy a direct impact on the case of Ben Breschini, a San Luis Obispo patient in the same position after the District Attorney dropped his felony possession charges. The city of San Luis Obispo, on behalf of police chief Deborah Linden, formally opposed the return of that property as well.
Assistant City Attorney Christine Dietrick said that San Luis Obispo has no plans to argue before the appellate.