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Court: Police Must Return Seized Medical Marijuana


— November 28, 2007

Felix Kha was stopped by police in Garden Grove, California, for running a red light. Kha consented to a search of his car, and the cops found a bag with 8.1 grams of pot in it. Although Kha produced a document indicating that he was authorized to possess and use marijuana for medical purposes, the police cited him “for unlawfully possessing less than one ounce of the drug while driving” and seized the pot.

Before trial, the prosecutor confirmed that Kha had a valid medical authorization for marijuana and dismissed the possession charge. The trial court ordered the police to return the drugs to Kha. The City of Garden Grove refused and filed a petition for writ of mandate compelling the trial court to reverse its order. Today, the Court of Appeal denied the petition, holding that the police must return the marijuana to Kha:

Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property.

City of Garden Grove v. Superior Court, No. G036250 (4th App. Dist., Div. 3, Nov. 28, 2007).


Felix Kha was stopped by police in Garden Grove, California, for running a red light. Kha consented to a search of his car, and the cops found a bag with 8.1 grams of pot in it. Although Kha produced a document indicating that he was authorized to possess and use marijuana for medical purposes, the police cited him “for unlawfully possessing less than one ounce of the drug while driving” and seized the pot.

Before trial, the prosecutor confirmed that Kha had a valid medical authorization for marijuana and dismissed the possession charge. The trial court ordered the police to return the drugs to Kha. The City of Garden Grove refused and filed a petition for writ of mandate compelling the trial court to reverse its order. Today, the Court of Appeal denied the petition, holding that the police must return the marijuana to Kha:

Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property.

City of Garden Grove v. Superior Court, No. G036250 (4th App. Dist., Div. 3, Nov. 28, 2007).

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