Opinion
E033752.
11-7-2003
GARY BARRETT et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents.
The Law Offices of Halpern & Halpern, Daniel B. Halpern and Mildred K. Halpern for Plaintiffs and Appellants. Lewis Brisbois Bisgaard & Smith LLP and Teresa M. McGowan for Defendants and Respondents.
1. Introduction
Plaintiffs Gary and Anna Barrett cultivate marijuana for medical purposes. Plaintiff sued the County of San Bernardino, the San Bernardino County Sheriffs Department, and Detective Mike Wirz for seizing and destroying their marijuana plants. Plaintiffs argue that, once defendants no longer needed the marijuana as evidence, they were required to return the plants or compensate the plaintiffs for their loss.
We conclude that, under California law, once an officer seizes marijuana suspected of being possessed or cultivated unlawfully, the officer is authorized to destroy the marijuana pursuant to a court order under section Health and Safety Code section 11473.5. The routine destruction of Schedule 1 controlled substances does not violate the general requirement to retain and return property under Penal Code section 1536. It also does not violate the Compassionate Use Act, which contains no provision requiring the return of the seized marijuana plants.
The trial court properly found that the plaintiff had no right to seek damages for their marijuana plants. We affirm the trial courts judgment.
2. Factual and Procedural History
The parties stipulated to the following facts.
On June 14, 1999, the San Bernardino County Sheriffs Department executed a search warrant that authorized the search and seizure of marijuana and other related items at plaintiffs home in Victorville, California. During the lawful search, officers found and seized various items, including 57 marijuana plants, dried marijuana, a Titan model 380-caliber handgun, personal papers, equipment, lights, packaging supplies, and other items used in the cultivation of marijuana.
Both plaintiffs provided physicians notes that recommended the use of marijuana for medicinal purposes. The notes, however, did not specify the required dosage.
On June 29, 1999, plaintiffs filed a motion for the return of their property. The court scheduled a hearing on the motion for August 23, 1999. On August 11, 1999, the court issued an order authorizing the destruction of the items. On the next day, the district attorney filed a criminal complaint against plaintiffs. Later, the court denied plaintiffs request for the return of their property without prejudice.
On June 20, 2000, plaintiffs pled guilty to one count of cultivating marijuana under Health and Safety Code section 11358.[] As part of the plea agreement, plaintiffs were allowed to possess up to 35 marijuana plants that would yield a maximum of 7.1 pounds of marijuana. During the sentencing hearing, the district attorney informed plaintiffs that the seized items were destroyed or comingled with other evidence, and therefore unavailable.
All further statutory references will be to the Health and Safety Code unless otherwise stated.
Several months later, plaintiffs again moved for the return of their property. The court granted the motion. After the courts ruling, plaintiffs received only a few items, including the handgun and their personal papers.
On October 10, 2001, plaintiffs filed a complaint for the confiscation and destruction of their personal property. In their complaint, plaintiffs sought the return of their property or, if destroyed as a result of defendants negligence, compensation for the destroyed property.
The parties stipulated to a bifurcated trial on the issue of damages. During the trial on the issue of liability, the court made the following findings: the officers executed the search warrant and lawfully seized the marijuana; the seized marijuana was properly destroyed under sections 11470, subdivision (b) and (h), and 11473 or 11473.5; the other items used in the cultivation process were not subject to the destruction order; and the grant of probation did not convert the marijuana into non-contraband property. The court entered judgment for defendants.
3. Discussion
The sole issue in this case is whether plaintiffs are entitled to recover damages for the destruction of their marijuana plants that were lawfully seized and later destroyed after they had outlived their usefulness in any criminal proceeding.
Plaintiffs argue for the application of the general rule that, when the government seizes property as evidence, it holds the property as a bailee and must return the property to the bailor, who has a right to specific recovery or damages in lieu of recovery. In applying this rule to marijuana plants, plaintiffs argue that their marijuana plants were not contraband but personal property.
Defendants respond that marijuana, unlike other items of personal property, is a Schedule 1 controlled substance that is subject to routine destruction under the current statutory scheme. In claming that they had no obligation to preserve or return the marijuana plants, defendants reject plaintiffs attempt to apply the general rules of bailment to controlled substances seized during a criminal investigation.
The Health and Safety Code lists marijuana as a Schedule 1 controlled substance, specifically, a hallucinogenic substance.[] Under section 11358, a person is prohibited from planting, cultivating, harvesting, drying, or processing marijuana, except as otherwise provided by law.
Section 11054, subdivision (d)(13).
In November of 1996, California voters approved Proposition 215, which legalized the possession and cultivation of marijuana for medical purposes under certain circumstances. Proposition 215 added section 11362.5, commonly known as the "Compassionate Use Act" (hereafter the Act) The Act was adopted "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the persons health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief."[] The Act also provides: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."[]
Section 11362.5, subdivision (b)(1)(A).
Section 11362.5, subdivision (d).
The Act grants a defendant limited immunity from prosecution by decriminalizing conduct that otherwise would constitute a criminal offense.[] In applying the limited immunity to possess and cultivate marijuana for medical purposes, a criminal defendant may move to set aside an indictment or information before the trial or assert his immunity as a defense during the trial.[]
People v. Mower (2002) 28 Cal.4th 457, 470.
People v. Mower, supra, 28 Cal.4th at page 470.
The Act, however, does not grant a criminal defendant immunity from arrest.[] Because the Act does not operate to completely immunize a person from prosecution, police officers may continue to perform their duties of making arrests when there is probable cause that a person is illegally possessing or cultivating marijuana. Likewise, prosecutors may continue to bring charges against those who are suspected of such illegal activities, even where there is evidence of medicinal use.[] As consistent with the proponents statement for Proposition 215, the state may still arrest, prosecute, and convict a person for growing too much marijuana or partaking in other inexcusable activities, such as possessing or cultivating marijuana for sale.[]
People v. Mower, supra, 28 Cal.4th at page 469.
People v. Mower, supra, 28 Cal.4th at page 469.
People v. Mower, supra, 28 Cal.4th at page 475, citing Ballot Pamphlet, General Election (Nov. 5, 1996) rebuttal to argument against Proposition 215, page 61; see also People v. Galambos (2002) 104 Cal.App.4th 1147, 1168-1169; People v. Rigo (1999) 69 Cal.App.4th 409, 415; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1395.
Once a person is arrested and his marijuana is seized, other statutes apply in disposing of the seized items. Section 11470 lists the various items that are subject to forfeiture, including controlled substances and all raw material, products, and equipment used in manufacturing any controlled substance.[] The Legislature specifically designated Schedule 1 controlled substances as subject to seizure and summary forfeiture to the state.[]
Section 11470, subdivisions (a) and (b).
Sections 11475 and 11476.
Under section 11473, the court must order the destruction of the forfeited items upon conviction. Even without a conviction, the court is authorized to order the destruction of controlled substances under section 11473.5. That provision states: "All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant."[] The designated law enforcement agency must comply with the courts destruction order.[]
Section 11473.5, subdivision (a).
Section 11474; see also People v. Backus (1979) 23 Cal.3d 360, 384.
When the law enforcement agency seizes a large quantity of a suspected controlled substance, the agency is authorized to destroy the substance without a court order after complying with certain procedural requirements as specified in section 11479. One particular requirement indicates that the law enforcement agency may consider the pragmatic problems associated with preserving, storing, and transporting the controlled substance.[]
Section 11479, subdivision (d).
Under this statutory scheme, once the officer seizes a Schedule 1 controlled substance, destruction is essentially automatic so long as the officer complies with the statutory requirements. As noted by the People, the law does not envision the return of the illegal drugs to anyone under any circumstances.
Significantly, the Act does not provide an alternative method of disposing of marijuana used for medical purposes. While the Act provides a defense to certain qualifying activities, it does not convert a Schedule 1 controlled substance into some innocuous item of personal property that must be preserved and returned. Based on the current state of the law, marijuana continues to be a controlled substance, and as such, continues to be subject to seizure, forfeiture, and destruction.
Nevertheless, plaintiffs attempt to use section 11362.5 to decriminalize marijuana beyond the statutes intended application of providing a criminal defendant with limited immunity from prosecution. Plaintiffs argue that, as with other personal property seized by law enforcement, marijuana plants must be returned after they are no longer needed as evidence in a criminal prosecution. Plaintiffs contend that they are entitled to specific recovery or, if the marijuana plants were destroyed, compensation for the loss of their property.
Penal Code section 1536 provides: "All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable."
After seizing an arrestees property, if the police wrongfully withhold the property, the arrestee can seek specific recovery while it remains in police custody.[] Under Penal Code section 1536, the police have a duty to retain the property seized pending a court order regarding its disposition and a duty to return the property if it is being withheld unjustly.[] If the police wrongfully destroy the property, the police may be required to pay damages.[]
Holt v. Kelly (1978) 20 Cal.3d 560, 564-565, footnote 4, citing Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121-122, footnote 14.
Hibbard v. City of Anaheim (1984) 162 Cal.App.3d 270, 276.
Holt v. Kelly, supra, 20 Cal.3d at page 565; see also Long v. City of Los Angeles (1998) 68 Cal.App.4th 782, 787; Hibbard v. City of Anaheim, supra, 162 Cal.App.3d at page 277.
The destruction of the marijuana plants in this case did not violate plaintiffs rights under Penal Code section 1536. The statute states that the officers duty to retain the property is subject to the courts order.[] In disposing of the marijuana plants, the officer followed the courts order. The officer, therefore, did not act wrongfully in withholding or destroying the marijuana. While Penal Code section 1536 provides controls over property seized by an officer pursuant to a search warrant, the courts order to destroy the marijuana discharges the officer of his duty to retain the property.[] Furthermore, while plaintiffs complain concerning the timing of the court order, the officers ability to obtain a destruction order is not contingent upon the filing of any criminal charges.[]
See People v. Von Villas (1992) 10 Cal.App.4th 201, 239; People v. Tolhurst (1982) 139 Cal.App.3d 1, 6 (holding that section 11479, authorizing destruction of marijuana without court order, was exception to general rule requiring court order).
See section 11473.5.
In their reply brief, plaintiffs invite this court to follow the decision of the Oregon court in State v. Kama.[] In that case, the police searched the defendant and found on his person a tin containing a small quantity of marijuana. Defendant used the marijuana for medical purposes as permitted under the Oregon Medical Marijuana Act.[] The state initially charged the defendant with possessing, manufacturing, and delivering a controlled substance. While the charges remained pending, the defendant filed a motion with the court for the return of the marijuana. The City of Portland opposed the motion on the ground that the return of the marijuana would violate federal law against the delivery of a Schedule 1 controlled substance.[] The state dismissed all the charges and the court ordered the return of the marijuana.
State v. Kama (2002) 178 Or.App. 561 (39 P.3d 866).
ORS 475.300 et seq.
On appeal, the court held that the return of the marijuana would not constitute a federal crime because federal law expressly immunizes law enforcement personnel from liability where they delivered the drugs as part of their official duties.[] Unhindered by federal law, the court required law enforcement to comply with state law. The Oregon Medical Marijuana Act provided that: "Any usable marijuana and related paraphernalia that law enforcement personnel have seized from a person who possesses a registry identification card must be `returned immediately upon a determination by the district attorney in whose county the property was seized, or his or her designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. Such determination may be evidenced, for example, [by] a decision not to prosecute, the dismissal of charges, or acquittal. [Citation.]"[]
State v. Kama, supra, 178 Or.App. at pages 564-565 (39 P.3d at pp. 867-868).
State v. Kama, supra, 178 Or.App. at page 564 (39 P.3d at pp. 867-868), citing ORS 475.323(2).
Unfortunately for defendant, Californias Act does not contain a similar provision. Section 11362.5 offers no guidance concerning the disposition of the marijuana upon confiscation. Without such guidance, we are compelled to apply existing law. As stated above, existing law authorizes the routine destruction of Schedule 1 controlled substances.
Furthermore, the Oregon case is easily distinguishable on its facts. There, the state dismissed all the charges against the defendant. And the evidence consisted of a small quantity of usable marijuana.
In this case, plaintiffs pled guilty and were convicted of cultivating marijuana. Plaintiffs repeatedly argue that the officer had no authority to destroy their property because they lawfully used marijuana for medical purposes. Although the plea agreement permitted plaintiffs to grow a limited number of marijuana plants, both plaintiffs pled guilty to the crime of cultivating marijuana. "A guilty plea admits every element of the crime and constitutes a conviction."[] Both plaintiffs, nonetheless, fail to acknowledge that their conduct was unlawful. Whether or not their convictions were justified by the excessive number of marijuana plants, which may suggest more than personal use, plaintiffs committed a felony offense.[] For this reason alone, plaintiffs should not be entitled to the return of their property.[] Unlike the defendant in State v. Kama, plaintiffs were completely vindicated of the charges.
People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.
Section 11473.
Also unlike the facts in State v. Kama, this case involved a large amount of contraband, including 57 live marijuana plants. As a practical matter, the facts presented here weigh in favor of the prompt disposal of the drugs because of the limited storage space as well as other incidental considerations associated with the preservation of live plants.
More importantly, the facts in this case reveal that the officer acted upon a court order to destroy the plants. As discussed above, he simply complied with the statutory procedure for the routine destruction of a Schedule 1 controlled substance.
Plaintiffs argue that, even if the property was required to have been destroyed, they should been entitled to compensation because of their lawful medical use. Plaintiffs argument flies in face of logic. It strains logic and reason to penalize law enforcement officials, and ultimately, the state by requiring compensation for destroying forfeited contraband in accordance with state law.
We conclude that, under California law, once an officer seizes marijuana suspected of being possessed or cultivated unlawfully, the officer is authorized to destroy the marijuana pursuant to a court order under section 11473.5 or without a court order as specified in section 11479. The destruction of marijuana under these provisions does not violate the general requirement to retain and return property under Penal Code section 1536. The Act does not provide an exception to the routine procedure of disposing of Schedule 1 controlled substances.
For these reasons, the trial court properly entered judgment for defendants and denied plaintiffs compensation for the destroyed marijuana plants.
4. Disposition
We affirm the trial courts judgment. Defendants shall recover their costs on appeal.
We concur: Richli, Acting P.J., King, J.