Medical Marijuana and California Law: Part 1 - Stopped by The Cops!

As part of a series, I would like to clear up some myths and provide information as a guide to assist you in researching medical marijuana law in California. This article is geared towards a legal medical marijuana patient who may legally possesses or cultivate marijuana for the personal medical purposes with the written or oral recommendation or approval of a physician (I will refer to this as the common term: a "Prop 215 Card").*

My series will include your rights and immunities, police powers, eligibility for Prop 215 and delve into the legal issues surrounding collectives and cooperatives, including storefront dispensaries. My first article in the series will guide you on how to act during a police contact.

I've been stopped by cops!
Possession of Marijuana and Prop 215

Marijuana is in illegal substance in California. Prop 215, among other things, immunized qualified persons from penalties for marijuana possession and cultivation; however, it did not "legalize" marijuana for those with their Prop 215 card. The courts later affirmed that Prop 215 protections did extend to transportation of marijuana for personal use. People.v.Wright

SB420, a subsequent bill and attempt at clarifying Prop 215 provided that a qualified patient may, among other things possess and/or transport up to 8 oz. of marijuana for personal use without being arrested or having their medicine seized if that patient produces either a state issued Medical Marijuana ID card or a verifiable physician's recommendation. Despite the fact, that this 8 oz. measure has been ruled a minimum, anticipate law enforcement will generally follow the guideline when determining whether to arrest you and/or seize your medicine. Likewise, if you do not have your Prop 215 card with you or it cannot be verified, officers can and probably will arrest and/or cite you to appear in court. In that case, your Prop 215 card is an affirmative defense that may be used at your court date. You need not formally file a motion to dismiss, you may informally suggest it.


One option is simply showing your Prop 215 to the prosecutor and/or judge when your court case is called. If your activities were legal, the case will probably be dismissed right then and there. If you had property seized, ask the judge to order it returned. If they wont return it, you may need to prepare to legally force the agency to return of your legal property or to provide just compensation if the police destroyed your property.

If the state believes it can prove you possessed for sale or other offense not protected by Prop 215 you can anticipate very serious felony charges facing many years in prison. Distributing marijuana outside of a collective's activities, even for free, is illegal. You do not need to profit to be considered a "dealer". 1

Obviously, driving under the influence of any intoxicating substance is illegal in CA. You may not drive under the influence of marijuana, even with a Prop 215 card.

If you are self medicating for a serious illness without physician's approval or recommendation, get your Prop 215 card before your court date. While legally, you may still be prosecuted since you did not have it at the time of arrest, the case may and probably will still be dismissed. It certainly can't hurt your defense.


OK, I got stopped by the police, now what?

First, let me give you a sample "possession for sales" case successfully prosecuted Calaveras County in 2009. This summary was generated based on the transcript in the court file.

A legal medicinal cannabis patient ("patient") and his friend were in the area of Hogan Dam and were observed committing a vehicle code infraction. The deputy contacted the vehicle occupants and smelled marijuana. Upon search, the deputy found "two mason jars filled with marijuana", a small plastic container with marijuana, a small plastic bag with marijuana, a scale and the defendant's Prop 215 recommendation. The total weight of the marijuana was 4.7 ounces. The patient admitted the marijuana was his.

The patient and his friend did not assert their right to remain silent, as they should have, and instead talked to the deputy. The friend stated that the patient had shared his marijuana with him and both occupants stated that the patient "sold to other Prop 215 holders".

Based on these statements, the quantity of marijuana, and the scale, the defendant was arrested on felony charges and booked into the jail. The deputy testified at a hearing that the total value of 4.7 ounces of confiscated marijuana was worth $3,080, which grossly misrepresents and exaggerates the value of marijuana, especially in a flooded market such as Calaveras County or if the patient cultivated the marijuana on his own. With the officer testimony regarding the patient's and his friend's statements about sales, the quantity possessed, and the value of the marijuana, the court proceeded with felony charges, holding the patient in jail for 2 weeks, facing nearly 4 years in prison. He was appointed a public defender. The public defender never formally moved the court to dismiss the charges based on an affirmative medical marijuana defense or put into context likely possible scenarios such as reasonable compensation within collective for a patient transaction is in fact legal. Numerous formal legal challenges could have been presented to the court to move the court to dismiss the marijuana charges. Nothing of the sort was done at all. In short, the defendant was hung out to dry.

Since the defendant was unaware of any of his rights, likely had little knowledge of the law, and since he had no competent defense, he plead guilty before trial and is still on probation facing prison time.


Remember the two rules of a police contact where you are the suspect:
Rule #1 . Don't talk to the police!
Rule #2. If in doubt, refer to Rule #1
If you are contacted by the police, I would recommend the following.

a. Be polite, professional, and calm. Do not be aggressive or confrontational. Early in the contact, assert that you would like to "hurry this along because you have pressing business to attend" or some other type statement indicating that you are not willingly maintaining the police contact. Let them know you want to leave. Obviously, never physically resist or attempt to leave, simply verbally assert that you would like to leave. If they allow to leave, do so. Asserting that you would like to leave as soon as possible is the first step in asserting your rights. If the officer keeps you detained, he must meet specific legal criteria for it to be lawful. For example, if an officer stops you for a bald tire, he may legally only detain you long enough to investigate the bald tire and write you a citation. If he starts "fishing", like asking you if you have drugs in the car, and you assert you want to leave; without probable cause, he is now unlawfully detaining you.

b. If marijuana becomes an issue, you would present your recommendation to the officer and advise him you are a legal cannabis patient protected by Proposition 215. Don't open that can of worms yourself.

c. Other than providing the officer with your identification and, if it becomes an issue, presenting your Prop 215 card, you do not need to answer ANY question. The police, in a contact such as this, are not your friend. They are investigating you, looking for a reason to arrest you, prosecute you, and seize your property on behalf of the state. You should deal with them understanding that this is what the officer wants to do to you. You should respond in kind by letting them know you have nothing to say and that you are reserving all of your rights and that you want to leave. Even if the officer appears "friendly", they are still a cop.

Always remember the story of the rattlesnake and the old woman. An old woman found a rattlesnake dying in her garden. She took the rattlesnake home and nursed it to health. One day, as the old woman was petting her new friend, the rattlesnake coiled and bit her. As the old woman lay dying, she asked the rattlesnake "Why did you do this to me after I nursed you back to health?". The rattlesnake responded "Look bitch, you knew I was a rattlesnake.".

Approach police encounters with the same caution.

d. Do not volunteer any information. Because marijuana is still illegal, if you admit to possessing marijuana, even with a Prop 215 card, or if marijuana is in plain view, or if the officer has other probable cause to suspect marijuana possession (such as smelling marijuana) that will be viewed as probable cause to search, even without your consent. Obviously, don't tell the officer that you're a Prop 215 patient until you need to do so. Once marijuana becomes an issue, you need to provide your medical recommendation to the officer so that the officer is aware you are protected by SB 420.

You have an absolute RIGHT to remain silent, under the fifth amendment of the U.S. Constitution and under state law. Use it. Don't talk yourself into facing prison, as was done in the above case. Anything you say can and will be used against you, whether you have been advised of your rights or not. The police do not have to "read you your rights" until you are arrested, and by then, you may have talked yourself into that arrest.

e. Never consent to a search. Never. There are legal avenues the officer can pursue to conduct a lawful search your person, vehicle, or residence based on probable cause and/or obtaining a warrant. If they ask, say "I do not consent to a search". Even if you are "clean", do not consent. If you do not consent and the the police search is unlawful, any evidence they find cannot be used against you. A consent search is always lawful. Again, never physically resist, but never give your permission. Once you give your permission, your rights against unlawful search are forfeited. Possession of a Prop 215 card does not negate a lawful search.

In my above example, had they not spoken to the deputy, the deputy would have had virtually no evidence of "sales". Obviously, Prop 215 patients often use scales and that would have nothing to do with sales. The patient had about half his legal minimum, had no quantity of cash, no individual "sales" packaging, no ledger, or any other indicator of sales. A perfect example of why talking to the police does not help you and you may talk yourself into a cell for many years.

This 45 minute video should be mandatory viewing by every Prop 215 patient:
Busted: Surviving Police Encounters

2. If you find yourself arrested and facing serious felony charges, you need an attorney. Never, ever defend yourself. Even if you believe you have significant knowledge that may aid your defense, assist your attorney, do not fight alone. You will likely need to aid in your defense if you are appointed a public defender. You need to research and ensure that attorney is protecting your rights and filing proper motions. Proper motions may include a demurer to the complaint, pretrial briefs as to your status as a patient and legal causes to dismiss the action, motions to dismiss based on unlawful search, etc. A public defender rarely will be motivated to aggressively defend you. They will likely seek out an easy and likely somewhat appealing in appearance plea arrangement. A plea arrangment for probation means you are now convicted and have had the sentence stayed pending you complete a list requirements. If you, for example, are later caught unlawfully smoking a joint while on probation, you can have your proceedings reinstated and be sentenced to prison.

If your attorney is refusing to properly defend you, ask your attorney to set a hearing for a Marsden Motion. You can also go into the clerk's office and tell them you would like to set a court date for a "Marsden" Hearing. At the hearing you may verbally (and /or with written motion or brief) explain how the lawyer is not representing your interests and ask the court to assign you another competent attorney.

Access for Safe Americans (ASA) is a comprehensive legal resource for both patients and defense attorneys. ASA provides sample motions and expert methodology for defending legal patients in court. A couple of good starting points are:

- Brief Bank: Sample Defense Motions

- How to Defend a Medical Marijuana Patient

Some suggestions:
Know your rights and protect your rights by verbally asserting them.

Do not talk to the police, remain silent, other than information police legally need, such as your identification and valid Prop 215 card.

Get an attorney and participate in the aggressive defense of your case by knowledgeably ensuring the proper motions are filed. Demurers (setting aside an indictment before a plea), Motions to Dismiss (995 P.C.), Unlawful search motions (1538.5 P.C), and Pitchess Motions (motions regarding officers conduct/personnel file) could all be appropriate. You can also get a new judge pursuant to 170.6 CCP at early stages of the proceedings. Once the judge starts making rulings as to facts in the case, you cannot get a new judge. If you want a new judge, its bast to file your "170.6" at arraignment either verbally or in writing. samples If the judge wont let you verbally file one, ask for a continuance of your arraignment and an attorney to help you aid in the proper preparation in the defense of your case. DO NOT lay out the details of your case at arraignment. Everything you say is being transcribed and can be used against you. At most, plead not guilty and ask for an attorney.

Realize that strict libertarian/constitutional type arguments such as claiming the court has no jurisdiction over you as they do not legally exist by the U.S. Constitution, marijuana is a right because you have a right pursue life, liberty, and happiness, or the commerce clause does not apply to personal use, must fail by law. The judge must and will rule against you because these issues are a matter of law now affirmed several times by the US Supreme Court and CA Supreme Court. To pursue them, from a legal standpoint, is a total waste time. Present valid legal argument with appropriate code and case law citations.

Knowledge is power!


Notes:

*This article is intended to be a guide and point of reference in a diligent effort to seeking out information concerning medical marijuana law. This article is not intended to be legal advice. This article was not written by a lawyer, but rather based on years of experience with the subject.

1. This article is not intended to address Patient-Patient or Patient-Caregiver transactions or cultivation/collective issues, which will be covered in a later article(s).