County of Butte v. Superior Court

175 Cal. App. 4th 729, 96 Cal. Rptr. 3d 421, 2009 Cal. App. LEXIS 1079

• Court: California Court of Appeal
• Decided: July 1, 2009
• Docket: C057152
• Status: Published

Opinions

Opinion

RAYE, J.

Real party in interest David Williams is a qualified medical marijuana patient who uses marijuana upon the recommendation of his physician. Williams belonged to a seven-member collective of medical marijuana patients who agreed to contribute comparable amounts of money, property, and labor to the collective cultivation of marijuana; each then would receive an approximately equal share of the marijuana produced. The marijuana was grown at Williams’s home.

In September of 2005 a Butte County Sheriff’s deputy came to Williams’s home without a warrant. Williams produced copies of medical marijuana recommendations for himself and the other members of the collective. The deputy ordered Williams, under threat of arrest and prosecution, to destroy all but 12 of the 41 medical marijuana plants. Williams complied.

Williams brought suit, alleging various constitutional violations by defendants Butte County, the Butte County Sheriff’s Office, and the deputy involved (collectively, County). County demurred to all causes of action based on a failure to state a cause of action. The trial court overruled the demurrer, rejecting County’s argument that Williams could assert his right to grow medical marijuana cooperatively only as a defense in a criminal court. County brought a petition for writ of mandate, and we issued an alternative writ.

In its petition for writ of mandate, County argues the trial court’s ruling provides that individuals have a legal right to medical marijuana that can form the basis for a civil lawsuit against law enforcement officers for money damages. County contends this ruling impermissibly expands Proposition 215 and flies in the face of case law. We shall deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The Compassionate Use Act—Proposition 215

Proposition 215, the Compassionate Use Act of 1996 (Act), created Health and Safety Code section 11362.5, which provides that statutes prohibiting possession and cultivation of marijuana “shall not apply to a patient, or to a patient’s 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.” (Health & Saf. Code, § 11362.5, subd. (d); all further statutory references are to the Health & Saf. Code.) The Act also states, as one of its purposes: “To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (§ 11362.5, subd. (b)(1)(B).)

The Legislature subsequently passed the Medical Marijuana Program Act (MMPA) to clarify and implement the Act. (Stats. 2003, ch. 875, § 2.) The MMPA added section 11362.77, which specifies an individual may possess no more than eight ounces of dried marijuana and maintain no more than six mature or 12 immature marijuana plants per qualified patient. (§ 11362.77, subd. (a).)

The MMPA also added section 11362.775, providing that qualified patients who associate within the state in order collectively or cooperatively to cultivate marijuana for medical purposes will not be subject to state criminal sanctions. Section 11362.775 exempts qualified persons “from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance.” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785 [33 Cal.Rptr.3d 859].)

Williams’s Complaint

Williams’s complaint alleged the following facts. Williams, a resident of Butte County, is a qualified medical marijuana patient who uses marijuana on the recommendation of his physician. Does 1 through 4 are also qualified medical marijuana patients who use marijuana on the recommendation of their physicians.

Williams and six other patients formed a seven-member collective. Each member of the collective agreed to contribute comparable amounts of money, property, and/or labor to the collective cultivation of medical marijuana, and each would receive an approximately equal share of the marijuana produced. The marijuana was grown at Williams’s home.

On September 8, 2005, Butte County Deputy Sheriff Jacob Hancock came to Williams’s home without a warrant. Williams presented Hancock with copies of medical marijuana recommendations for Williams and the six other qualified medical marijuana patients. Williams also informed Hancock that all seven were members of a private patient collective.

Hancock ordered Williams to destroy all but 12 of the 41 medical marijuana plants growing on his property, under threat of arrest and prosecution. Williams complied.

Williams alleged that Hancock’s action was undertaken pursuant to the county’s policy to allow qualified patients to grow marijuana collectively only if each member actively participates in the actual cultivation of the marijuana by planting, watering, pruning, or harvesting the marijuana.

Williams’s complaint alleged (1) violation of the constitutional prohibition against municipal laws that conflict with the California Constitution, (2) unreasonable search and seizure, (3) violation of due process, (4) violation of the Tom Bane Civil Rights Act (Civ. Code, § 52.1), and (5) conversion. County demurred to the complaint in its entirety.

County’s Demurrer

In its demurrer, County argued that if Williams believed he was lawfully cultivating all 41 marijuana plants, his only option under the law was to refuse to remove the plants and to prove the legality of the patient collective in criminal court. Instead, County contends, Williams is attempting to convert the limited defense provided to him under the Act into an affirmative right, allowing him to challenge Hancock’s actions and seek civil damages.

In addition, County argued, under the Act a qualified patient may share his marijuana with another qualified patient only if the supplying patient is the primary caregiver of the second patient.

County also filed a motion to strike Williams’s complaint. County argued the California Constitution does not authorize a money damages remedy for claims alleging an unreasonable search and seizure.

The Trial Court’s Ruling

The trial court overruled County’s demurrer. The court reviewed the Act and concluded: “[I]t appears that, contrary to the stated policy of the County, the legislature intended collective cultivation of medical marijuana would not require physical participation in the gardening process by all members of the collective, but rather would permit that some patients would be able to contribute financially, while others performed the labor and contributed the skills' and ‘know-how.’ ”

The court observed that County, in its demurrer, did not focus on an interpretation of the MMPA, but on its contention that the Act provides a defense in criminal court and nothing more. Under County’s theory, Williams’s only recourse was to refuse the deputy’s order, be arrested, and address the matter in criminal court after criminal charges were brought against him.

The court found County’s argument without merit. The court explained: “While it is true that the medical marijuana provisions do not specifically authorize an action by a patient for unlawful seizure of his marijuana, the constitution and laws of the state which otherwise protect the rights of citizens may nevertheless provide an avenue for relief. Thus, if plaintiff can show that he had a legal right to possess the marijuana in question, and that his rights were violated, he may bring his action based on generally applicable legal principles. Seriously ill patients certainly should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights. The plaintiff states a theory which would allow a civil court, rather than the criminal courts, to interpret and determine what constitutes Compassionate Use, who are qualified patients and what cooperative/collective efforts are included under the statute. The civil court appears to be an equally appropriate forum to address the issues of medical patients’ rights.”

The court did not see any likelihood of inconsistent rulings in this case, since there was no criminal case pending or likely to be brought. In addition, the court rejected County’s argument, regarding Williams’s search and seizure claim, that the medical marijuana laws do not prohibit police from investigating possible violations of the law. The court concluded: “This is true, however the complaint is based also on the destruction of the marijuana plants, which was directed by the officer on pain of arrest. This could certainly be considered a seizure, and is sufficient to support the cause of action, even without reference to the alleged warrantless search.”

The court also denied County’s motion to strike. The court found County failed to establish, as a matter of law, that money damages are unavailable: “Because new case authority may be forthcoming, and because the parties have not provided thorough briefing, the court is reluctant to make a final determination at this stage on a matter as to which, at present, there is no clear authority in California.”

County filed a petition for writ of mandate.

DISCUSSION

County argues the Act does not grant individuals immunity from being arrested for marijuana offenses, nor does the Act grant individuals a constitutional right to marijuana. Therefore, the court’s assertion that the Constitution and the laws of the state provide an avenue for relief is in error.

According to County, if Williams believed that the deputy did not have probable cause to arrest him, his sole option was to face arrest and then challenge any resulting charges by filing a motion to set aside the indictment or information, or asserting an affirmative defense at trial. The fact that Williams may undergo the expense and stress of criminal proceedings, County contends, is inherent in the process approved by the voters in passing Proposition 215. Therefore, Williams’s alleged status as a qualified patient does not provide him standing to pursue a cause of action for conversion, unreasonable search and seizure, due process, or any other civil action.

We disagree with County’s assertion that the Constitution and laws of the state do not provide Williams any relief at law. Recently, in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] (Garden Grove), the appellate court considered whether the police department was required to return lawfully possessed marijuana its officers had seized. The city argued neither the Act, the MMPA, nor section 11473.5 expressly provided for the return of lawfully possessed marijuana. However, the court pointed out the city’s position failed to recognize “the police cannot retain a person’s property without running afoul of basic constitutional considerations. . . . ‘Continued official retention of legal property with no further criminal action pending violates the owner’s due process rights. [Citation.]’ ” (Garden Grove, supra, 157 Cal.App.4th at pp. 386-387.)

The court distinguished a prior decision in which a defendant requested return of a “reasonable amount” of marijuana for medicinal purposes after charges were dismissed in the furtherance of justice because he was already serving time on another case. In the prior case, the defendant was not a qualified user under the Act and not in lawful possession of the marijuana under section 11473.5. Therefore, the marijuana had to be destroyed. (Garden Grove, supra, 157 Cal.App.4th at pp. 387-388, citing Chavez v. Superior Court (2004) 123 Cal.App.4th 104 [20 Cal.Rptr.3d 21].)

The court reasoned: “Even though state law is silent as to whether a qualified patient like Kha is entitled to the return of his marijuana once criminal charges against him have been dismissed, due process principles seem to us to compel that result. Continued official retention of a qualified patient’s marijuana simply cannot be squared with notions of fundamental fairness. The City no doubt has every right to retain a defendant’s marijuana if it is pursuing a marijuana-related prosecution against him, or if the defendant’s possession does not comport with the [Act]. In those situations, the law clearly contemplates the destruction of the subject marijuana. ...[][] But neither of those circumstances exist here. Withholding small amounts of marijuana from people like Kha who are qualified patients under the [Act] would frustrate the will of the people to ensure such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction. [Citation.] It would also ... be inconsistent with due process, as well as other provisions of the law that contemplate the return of lawfully possessed property.” (Garden Grove, supra, 157 Cal.App.4th at p. 388.)

Ultimately, the court in Garden Grove determined that because the defendant was legally entitled to possess the marijuana, due process and fundamental fairness dictated it be returned to him. (Garden Grove, supra, 157 Cal.App.4th at p. 389.) We believe the same considerations of due process and fundamental fairness are operative in the present case.

Here, the deputy, without a warrant, ordered Williams, on threat of arrest, to destroy a portion of the medical marijuana plants maintained by the collective. Article I, section 13 of the California Constitution guarantees individuals the right to be secure in their persons, houses, papers, and effects, free from unreasonable searches and seizures. As the Supreme Court has noted, in the context of medical marijuana: “To be sure, law enforcement officers must have probable cause before they lawfully may arrest a person for any crime. [Citations.] Probable cause depends on all of the surrounding facts [citation], including those that reveal a person’s status as a qualified patient or primary caregiver under [the Act].” (People v. Mower (2002) 28 Cal.4th 457, 468-469 [122 Cal.Rptr.2d 326, 49 P.3d 1067] (Mower).)

Williams seeks to challenge the deputy’s lack of probable cause leading up to the deputy’s demand that he destroy numerous marijuana plants. County, citing our opinion in People v. Fisher (2002) 96 Cal.App.4th 1147 [117 Cal.Rptr.2d 838] (Fisher), argues Williams cannot claim the deputy’s lack of probable cause violated his rights. In Fisher, officers obtained a search warrant after spotting marijuana growing on the defendant’s property. When the officers attempted to execute the warrant, the defendant claimed to be a medical marijuana patient and provided his physician’s recommendation. Still believing there remained a possibility a crime was being committed, the officers continued to search and found more marijuana, a weapon, and ammunition. (Id. at p. 1149.) A jury convicted the defendant of unlawful possession of the weapon and ammunition, but acquitted him of the marijuana charges. (Id. at p. 1150.)

In Fisher, the defendant appealed, arguing the trial court erred in denying his motion to suppress all of the evidence because of his status as a medical marijuana patient. We rejected the defendant’s argument, noting that when the officers obtained the search warrant, they did so without knowledge of the defendant’s status as a medical marijuana patient. When the officers became aware of the defendant’s claim, they were unsure whether a crime had been committed and did not have “the option to make a redetermination of probable cause.” (Fisher, supra, 96 Cal.App.4th at pp. 1150-1151.) Operating under the authority of the warrant, the officers were no longer authorized to make a probable cause determination. (Ibid.)

No such warrant and concomitant authority exists in the present case. Here the deputy, without a warrant, ordered Williams to destroy marijuana plants. Lacking a warrant, an officer must possess “ ‘ “facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. . . .” ’ [Citation.]” (Mower, supra, 28 Cal.4th at p. 473.) Any consideration of probable cause must include the officer’s consideration of the individual’s status as a qualified medical marijuana patient. (Id. at pp. 468-469.)

County argues the Supreme Court opinion in Mower completely contradicts the trial court’s ruling allowing Williams to bring a civil action based on a violation of his constitutional rights. The Supreme Court in Mower determined the Act does not afford qualified medical marijuana patients a complete immunity from arrest because of their status as patients. According to Mower, officers must have probable cause before they lawfully arrest a person for any crime. However, the requirement of probable cause does not mean that the Act must be interpreted to grant medical marijuana patients immunity from arrest. Immunity from arrest is exceptional and, when granted, ordinarily is granted expressly. The court found the Act does not expressly grant immunity from arrest. (Mower, supra, 28 Cal.4th at pp. 468-469.)

The court further found the language and purpose of the Act granted a defendant a limited immunity from prosecution. This limited immunity allows a defendant to raise his or her status as a qualified patient at trial, and also permits a defendant to raise this status by moving to set aside the indictment or information prior to trial based on a lack of probable cause. (Mower, supra, 28 Cal.4th at p. 464.)

County claims Mower stands for the proposition that qualified patients may assert a violation of constitutional rights only in the arena of a criminal prosecution. They must refuse to obey an official action, be arrested, and then challenge the officer’s determination of probable cause in a motion to set aside the charges. We disagree.

Nothing in Mower speaks to the issue of a civil action for violation of a qualified patient’s constitutional rights. Here, Williams is not claiming complete immunity from arrest; there was no arrest. Instead, Williams seeks an adjudication as to whether the deputy had probable cause to order Williams to destroy his property, or whether a lack of probable cause led to a violation of his constitutional rights.

Nor are we persuaded by County’s argument that Williams fails to present a justiciable controversy, or that allowing the case to proceed will lead to unnecessary disorder and confusion. Without authority, County claims that “Williams’ allegations passed the point of ripeness, and were rendered moot, when Williams agreed to remove a portion of the plants.” County provides no discussion of this claim and fails to explain why this renders Williams’s causes of action based on the search and seizure of his property nonjusticiable.

County also contends it is not within the trial court’s field of judicial administration to determine in the abstract whether Williams’s actions will enable him to assert a defense to criminal charges. However, Williams is not asserting a defense; Williams is seeking to challenge an alleged violation of his civil rights in a civil action.

Recently the Supreme Court in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920 [70 Cal.Rptr.3d 382, 174 P.3d 200] (Ross) found an employee who used medical marijuana with a physician’s recommendation under the Act and was fired after failing a preemployment drug test could not state a cause of action for termination in violation of public policy. The Act did not speak to employment law or put an employer on notice it would be required to accommodate medical marijuana users.

According to the court: “An employer’s refusal to accommodate an employee’s use of marijuana does not affect, let alone eviscerate, the immunity to criminal liability provided in the act. We thus give full effect to the limited ‘right to obtain and use marijuana’ [citation] granted in the act [citation] by enforcing it according to its terms.” (Ross, supra, 42 Cal.4th at p. 929.)

In the present case Williams’s claim does not implicate employment law, property law, or any other discrete branch of the law. Instead, Williams posits causes of action based on his constitutional right to due process, a right growing out of the administration of criminal law, the very subject of the Act.

Nor do we see floodgates opening and lawsuits flooding our burdened court system as a result of Williams’s suit. Instead, we see an opportunity for an individual to request the same constitutional guarantee of due process available to all individuals, no matter what their status, under the state Constitution. The fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual’s right to assert them.

Our dissenting colleague asserts that under federal law “marijuana is just as illegal as cocaine, and therefore is contraband per se . . . .” (Dis. opn., post, at p. 743.) Thus, marijuana cannot be lawfully possessed, not even by desperately ill patients who obtain permission to use marijuana for medical purposes; such permission will be useful in a criminal prosecution but is worthless in resisting warrantless intmsions and seizures by law enforcement. This anomalous result, which would surely shock the sensibilities of the voters who approved the initiative measure, is compelled, according to the dissent, because federal law reigns supreme. We disagree.

We have acknowledged that the Act has no effect on marijuana arrests and prosecutions or searches and seizures under federal law. The many authorities cited by the dissent on contraband per se all involve property characterized as such under the laws of the seizing jurisdiction. The Act presents the unusual circumstance of a state law that, under limited circumstances, permits the possession of a substance deemed to be contraband under federal law. There are no decisions holding that federal law renders the Act unconstitutional or otherwise unenforceable. Here, the deputy was acting under color of California law, not federal law. Accordingly, the propriety of his conduct is measured by California law. The numerous federal authorities cited by the dissent are without application in the present appeal.

DISPOSITION

We deny County’s petition for a writ of mandate. Having served its purpose, the alternative writ is discharged. Williams shall recover costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1).)

Scotland, R J., concurred.