A San Francisco court has made it easier for suspects released from the city jail to get back their legally obtained marijuana along with items like keys, money and other property confiscated from them when they are placed under arrest and detained.
The San Francisco Superior Court decision made public Monday said police, judges and law enforcement officials are shielded from federal prosecution when they return less than an ounce (28 grams) of marijuana to released suspects who ask to get back their seized property.
San Francisco police had refused to return to Robert T. Smith 21 grams of marijuana seized from his backpack during a January disturbing the peace arrest.
Charges were dropped and Proposition 64 in November 2016 made possession of less than an ounce of marijuana legal in California. Possession of medical marijuana obtained with a doctor’s recommendation has been legal in California since 1996. Marijuana in all forms remains illegal under federal law.
Smith’s attorney, University of San Francisco law professor Lara Bazelon, said she has represented three people who have had trouble getting their legally obtained marijuana returned by San Francisco police.
“It should be like getting your shoes back,” Bazelon said. “But it isn’t.”
Police had argued that they feared they could face federal drug distribution charges by giving Smith back his marijuana. A trial court judge agreed with officers in an April decision.
But a three-judge panel of the same court overturned the April decision, citing an earlier ruling that said California law enforcement officials are shielded from federal prosecution when returning medical marijuana legally obtained with a doctor’s recommendation.
The most recent ruling said law enforcement officials are protected from prosecution involving illegal drugs and marijuana while enforcing the law. It cited the federal Controlled Substance Act that explicitly allows law enforcement officials to legally handle drugs when the officers are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.”
San Francisco Police department spokesman David Stevenson did not return email and telephone messages seeking comment.