Judge Dodie Harman announced Aug. 23 her intent to order the return of medical marijuana seized by San Luis Obispo police from patient Ben Breschini. The Cal Poly student faced felony charges after police found him with 45.7 grams of dried cannabis and, they claimed, no doctor's recommendation. A medical defense later dissolved the possession charge but police in common practice held the pot as contraband.
The decision, though not yet official as of publication, tentatively marks the reversal of two years of policy in the county courts of police holding and destroying marijuana after the courts dismissed charges against the defendant. Donovan No Runner volleyed the last successful return-of-property request in 2004. Since then, various city attorneys, arguing on behalf of police, have kept the contraband vaults firmly closed.
Just last month, Arroyo Grande resident Kenneth Parson's request fell short, prompting an appeal to the appellate. If the courts overturn that decision, the file would become case law and establish a firm policy within the county on a matter left relatively vague by state legislation. Unlike in Oregon, the California Compassionate Use Act sets no concrete policy for the return of property.
The issue before the appellate: Does confiscated marijuana remain contraband after the defendant proves his or her medical status and is absolved of all charges?
Breschini's lawyer, San Luis Obispo-based Lou Koory, argued that police aren't party to the case but are simply custodians to the property. He protested the alleged intrusion in both Parson's and Breschini's case.
"It's also intrusive to order police to violate federal law," responded assistant city attorney Christine Dietrick.
This concern, echoed by law enforcement bodies across California, regards a clause in the Controlled Substances act that reads, "It shall be unlawful for any person to distribute a controlled substance in schedule I or II to another except in pursuance of a written order of the person to whom such substance is distributed."
City counsel conceded that while it's "technically right that San Luis Obispo has no standing in the matter," its legal presence came at the request of the courts a point that Judge Harman confirmed. However, in the end, the judge agreed with Koory that the property no longer constituted contraband.
Harman took additional time to review case law submitted by Koory, but Breschini's attorney expressed confidence that the additional information will strengthen, rather than reverse, her decision.