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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.

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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."

Court Orders Police to Return Medicinal Marijuana

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Morning Edition, March 6, 2007 · Police in the Northern California city of Santa Rosa will find themselves in an odd position Tuesday — in front of a Superior Court judge, defending themselves on contempt of court charges.

It all stems from the police department's refusal to give up 19 pounds of confiscated marijuana. And it highlights an interesting question: What are police supposed to do, when the California medicinal marijuana law conflicts with federal drug laws?

The case started when Shashon Jenkins was standing one day on the back balcony at his old apartment building, when the calm and quiet of one morning in suburban Santa Rosa was harshly interrupted.

"When I looked over, and peered over the balcony, officers were running into the next apartment, guns drawn," he said. "Officers ordered me back inside my house."

Police were raiding Jenkins' neighbor for narcotics. They caught sight of Jenkins on the balcony, holding a stem of marijuana in his hand. So after their raid next door, the officers crowded onto the stairwell outside Jenkins' apartment, and came knocking.

"It was very tense, seven firearms, very intense," Jenkins said.

Police raided Jenkins' home, arrested him, seized a number of lights for growing plants and 45 full-grown plants. In all, it was more than 19 pounds of pot. Later, at Jenkins' hearing, he produced witnesses and paperwork to confirm that he legally uses medicinal marijuana to treat chronic back pain. He also has caregiver status — that means he grows medical marijuana for those patients unable to grow it themselves — and so the district attorney dropped the case.

The judge ordered police to return Jenkins' belongings, including the armload of marijuana. Police said no.

One of these policemen is Sgt. Eric Litchfield. Litchfield said it's galling to hand back such a large supply of pot. He said the medical marijuana law is "vague and poorly written, at best, and is in complete conflict with federal law, which we're also bound to uphold and maintain as well."

Under federal law, marijuana is illegal to possess under any circumstances. But in California and 10 other states, it's legal for some medical patients to smoke it.

Marsha Cohen, a law professor at University of California Hastings Law School, says the one big uncertainty in California's measure is that it's unclear on the economics of medical marijuana — who can possess large quantities of marijuana, how large those quantities can be and all the details of how pot should be bought and sold.

"So instead of dealing with the question of where this marijuana would magically come from, they simply finessed that and did not provide for either the purchase or the sale of marijuana in the original proposition," she said.

That's the sticking point for law enforcement and for the courts. No one is supposed to profit from medicinal marijuana sales, and the fear is that ignoring large growers of pot is tacitly condoning drug trafficking.

The court will try to work out the details and limits of marijuana enforcement, beginning Tuesday afternoon in Sonoma County.

Santa Rosa police refuse to release medical marijuana

SANTA ROSA, Calif. - Police officers who refused to return 18 pounds of marijuana to a man who used it as medicine could be held in contempt of court for disobeying a Sonoma County judge.

Superior Court Judge Lawrence Antolini ordered police to appear in court March 6 to explain why they shouldn't be held in contempt of court for refusing to follow his order.

Officers seized the marijuana from Shashon Jenkins, 26, after his arrest in October, but a prosecutor dropped the case after a defense lawyer produced evidence in court that he's a medical marijuana user and caregiver. The order from the judge followed.

But officers have refused because they said federal law, which doesn't recognize medical marijuana use, prohibits them from returning Jenkins' cannabis.

"We're not a dispensary, we're not going to give out marijuana," said Sgt. Eric Litchfield, who supervises the detectives who arrested Jenkins. "It's illegal."

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

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

 

No new hearing on judge's pot-returning ruling

SR prosecutor loses bid for review of order before contempt session March 6

by Jeremy HaySanta Rosa Press Democrat
February 1st, 2007


A judge Wednesday said he wouldn't hold an early hearing to reconsider his Jan. 17 order that the Santa Rosa Police Department return marijuana to a man whom prosecutors agreed was a medical marijuana patient and caregiver.

 

The police have refused, saying it is prohibited from doing so under federal law, which doesn't recognize medical use of marijuana.

Judge Lawrence Antolini said the issue can be taken up March 6 at a hearing to which the Police Department has been summoned to explain why it shouldn't be held in contempt of court.

 

Antolini last month ordered the department to return about 18 pounds of marijuana to Shashon Jenkins, 26, who Santa Rosa narcotics detectives arrested in October.

 

Prosecutors last month dropped the case against Jenkins after his public defender provided evidence that he was a medical marijuana user and caregiver as defined by California's Compassionate Use Act, which voters approved in 1996, authorizing medical use of marijuana.

 

On Wednesday, Assistant Santa Rosa City Attorney Mike Casey, representing the Police Department, requested a hearing to re-examine Antolini's order before the scheduled March 6 hearing.

 

Antolini, in turning down the request, said a conflict between federal and state law was becoming unavoidable.

 

``Many years ago we would all have sat down in chambers and talked this over,'' he said. ``But right now, we have two trains heading at each other on the same track, and I'm not going to take it off the track because I didn't put them on it.

 

``I'm not looking to make a cause celebre,'' he said, ``or to make a statement here, I'm looking for direction.''

 

Casey replied, ``Unfortunately, I don't think we're going to get that.''

 

You can reach Staff Writer Jeremy Hay at 521-5212 or jeremy.hay@pressdemocrat.com.
04-19-2007, 11:03 AM   #1
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UPDATE: Judge Orders Medical Marijuana Destroyed

A Sonoma County judge said he would order the destruction of 19 pounds of pot seized by police, even though the case later was dropped because the owner was a verified medical marijuana user.

The original owner of the marijuana, Shashon Jenkins, 26, was arrested in October, but the marijuana cultivation and possession charges against him were dismissed in December. Jenkins had testified that he uses marijuana to relieve chronic pain and grows it for several clients who also use it under a doctor's authorization.

During the December hearing, Judge Lawrence Antolini ordered the marijuana returned to Jenkins.

But Santa Rosa police refused to return the marijuana, saying it would violate federal law.

On Tuesday, Antolini rejected a request from Jenkins' attorney for more time to make his case to get the pot back, after his doctor submitted incomplete medical records in the case.



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Source: San Jose Mercury News
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Copyright: 2007 San Jose Mercury News
Website: Judge Orders Medical Marijuana Destroyed

Court upholds order to destroy pot

By LORI A. CARTER
THE PRESS DEMOCRAT


An appeals court has upheld a Sonoma County judge’s order allowing the city of Santa Rosa to destroy 19 pounds of marijuana seized by police from a man who said he was a medical marijuana user.

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Kenwood Hearing

Shashon Jenkins, 26, appealed Judge Lawrence Antolini’s April destruction order after he was unable to provide medical documentation for his use of marijuana.

Criminal charges against Jenkins were dropped when prosecutors agreed he was a medical marijuana user and Antolini ordered his seized property returned. But Santa Rosa Police refused to give back the pot, saying that doing so would be a violation of federal law.

In further hearings, Jenkins testified that he uses marijuana to relieve chronic pain and grows it for several clients who also use it under a doctor’s authorization, but the doctor from whom he received his approval to use the drug apparently had no supporting documents to submit to the court.

A 1st District Court of Appeal panel ruled Tuesday that Antolini’s order authorizing the pot’s destruction was proper because Jenkins failed to prove he had legal possession or that he was a qualified medical marijuana patient or caregiver under state law.

Lori A. Carter

Picture owned by Associated Press

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.
photography taken by:CHRISTOPHER CHUNG
of ShaShon Jenkins, Jan-2007




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