Smith v. Super. Ct.
Opinion
Filed 8/16/18 CERTIFIED FOR PUBLICATION IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO
APPELLATE DIVISION
ROBERT T. SMITH, ) Writ No. APP-18-008417 )
Petitioner, ) Case No. 18000519 vs. )
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THE SUPERIOR COURT OF THE CITY AND ) COUNTY OF SAN FRANCISCO, )
) ORDER GRANTING
Respondent; ) WRIT OF MANDATE )
SAN FRANCISCO POLICE DEPARTMENT, )
)
Real Party in Interest. )
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)
)
)
ORIGINAL PROCEEDINGS in petition for writ mandate to vacate order denying non-statutory motion to return property entered by Superior Court, County of San Francisco, Robert M. Foley, Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. IV, § 6 of the Cal. Const.) Petition GRANTED.
Lara Bazelon for Petitioner. No appearance for Respondent. Ronnie M. Wagner, San Francisco Police Department Legal Division, for Real Party in Interest.
DECISION BY THE COURT
COLFAX, Acting P. J., Appellate Division, BEGERT, J., Appellate Division, HITE, J., Appellate Division
On April 26, 2018, Robert T. Smith filed a petition for writ of mandate, seeking review of the lower court’s denial of his non-statutory motion to return property, to wit 21.8 grams of recreational marijuana. After considering the evidence, arguments and applicable law, we hereby GRANT the petition for writ of mandate. We hereby order the lower court to vacate its previous order denying the motion for return of property, and enter a new order consistent with this decision.
FACTUAL AND PROCEDURAL BACKGROUND On January 9, 2018, SFPD Officer MacMahon responded to 923 Market Street to investigate a report of a man making threats with a possible gun. Officer MacMahon ultimately arrested petitioner. Officer MacMahon performed an inventory search of petitioner’s backpack, seizing 21.8 grams of marijuana and $574.21 in cash. On January 11, 2018, petitioner was charged by misdemeanor complaint with two counts of criminal threats (Pen. Code, § 422) and one count of disturbing the peace (Pen. Code, § 415, subd. (3)). These charges were dismissed pursuant to Penal Code section 1385 on March 7, 2018.
On April 10, 2018, the lower court heard and denied petitioner’s motion to return the marijuana. Petitioner timely filed the instant petition for writ, seeking the return of his 21.8 grams of recreational marijuana. On May 16, 2018, we ordered the San Francisco Police Department to show cause why it should not be ordered to return petitioner’s property under City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 and any other applicable law.
DISCUSSION
The proper avenue of redress for denial of a defendant’s nonstatutory motion to return seized property is through a petition for writ of mandate. (People v. Hopkins (2009) 171 Cal.App.4th 305, 308.) “When reviewing a trial court's judgment on a petition for ordinary mandate, we apply the substantial evidence test to the trial court's findings of fact and exercise our independent judgment on legal issues ….” (Cape Concord Homeowners Association v. City of Escondido (2017) 7 Cal.App.5th 180, 189.)
The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” (U.S. Const., 14th Amend., § 1; see also Cal. Const., art. I, § 15.) “Continued official retention of legal property with no further criminal action pending violates the owner’s due process rights.” (Garden Grove, supra, 157 Cal.App.4th at p. 387.)
On November 8, 2016, California voters approved Proposition 64, known as the “Control, Regulate and Tax Adult Use of Marijuana Act,” which drastically reduced criminal punishments for certain marijuana offenses. Most notably, Proposition 64 added Health and Safety Code section 11362.1, which legalized the possession of not more than 28.5 grams of cannabis for persons 21 years of age or older.
“All seizures of controlled substances … 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.” (Health & Saf. Code, § 11473.5.) A controlled substance is “lawfully possessed” under this section if it lawfully possessed under California law. (Garden Grove, supra, 157 Cal.App.4th at p. 380.) The Garden Grove court found that principles of due process and fundamental fairness dictate the return of lawfully possessed marijuana. (Id. at p. 388-89.)
However, under the Controlled Substances Act (21 U.S.C. § 801 et. seq. [CSA]), “simple possession” of marijuana is a misdemeanor. (21 U.S.C. § 844(a).) Further, it is unlawful for any person to knowingly and intentionally distribute marijuana. (21 U.S.C. § 841(a)(1).) The CSA defines “distribute” to mean “to deliver a controlled substance or a listed chemical.” (21 U.S.C. § 802(11).) The CSA further defines “deliver” to mean “the actual, constructive, or attempted transfer of a controlled substance.” (21 U.S.C. § 802(8).)
I. CALIFORNIA LAW AND THE FEDERAL CSA DO NOT “POSITIVELY CONFLICT.”
The Supremacy Clause of the United States Constitution grants Congress the power to preempt state law. (U.S. Const. art. 6, cl. 2.) State law that conflicts with federal law is “without effect.” (In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1265.) Consideration of issues arising under the Supremacy Clause “starts with the assumption that the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.” (Jevne v. Sup. Ct. (2005) 35 Cal.4th 935, 949.) Federal law preempts state law when: (1) Congress explicitly proclaims that its enactment preempts state law; (2) the enactment regulates conduct in a field that Congress intended the federal government to occupy exclusively; or (3) the state law conflicts with federal law, making it impossible for a private party to comply with both state and federal requirements. (Id. at p. 949-50.)
“No provision of [the CSA] shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision ... and that State law so that the two cannot consistently stand together.” (21 U.S.C. § 903.) Here, the CSA explicitly states that its provisions do not preempt state law and are not intended to exclusively occupy any field to the exclusion of state law. Accordingly, the CSA would preempt state law only to the extent of an actual conflict, making it impossible for a private party to comply with both state and federal requirements.
a. The CSA’s “Distribution” Provisions Do Not Apply to Officers Acting Pursuant to Their Professional Duties.
California Law requires law enforcement officers to return “lawfully possessed” marijuana to its owner. The CSA, however, prohibits the distribution of marijuana without regard to whether state law permits its recreational use. The Garden Grove court confronted the scenario that involved whether a law enforcement officer who returns medical marijuana under California law would also be
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