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Yuma County sheriff loses appeal over medical marijuana seizure

Cops take your pot?

They’ve got to give it back if you’ve got a medical marijuana card — even one from another state.

The U.S. Supreme Court on Monday without comment refused to disturb state court rulings that said medical marijuana patients whose drugs are taken by police are entitled to get them back.

Monday’s order most immediately affects Valerie Okun, whose drugs were taken at a Border Patrol checkpoint on Interstate 8 near Yuma in 2011. While she was never prosecuted – she has a valid medical marijuana card from California – sheriff’s deputies refused to return the drugs.
The order should finally put the issue to rest. Until now, Yuma County Sheriff Leon Wilmot refused to hand over the marijuana, despite rulings from the Arizona Court of Appeals and Arizona Supreme Court that he do so.

But Alfonso Zavala, a spokesman for Wilmot, said Monday that his boss is consulting with the county attorney’s office before deciding what to do next.

More significant, Monday’s order from the nation’s high court cements into law that precedent for all of the state’s more than 43,000 medical marijuana users and more than 500 people who are not users but serve as caregivers.

By simply upholding those ruling, the U.S. Supreme Court declined to look at the obvious conflict between laws in places like Arizona, where at least some individuals can buy and have marijuana, and federal statutes that consider possession by anyone other than authorized researchers a felony – potentially leading to a definitive ruling on whether states have the right to enact their own pot laws.
That decision to sidestep the issue disappointed Yavapai County Attorney Sheila Polk, who also serves on the Arizona Prosecuting Attorneys Advisory Council.

“To me, that is the elephant in the room,” she said.

Polk said police are required to follow not only state but also federal law. And the same, she said, is true for prosecutors and judges.

She said that the Supreme Court needs to deal with the issue of federal preemption head-on, if not in this case than in some other litigation from another state.

In Okun’s case, the border Patrol turned over her marijuana and hashish to county officials. But charges against her were dropped because she is enrolled in California’s Medical Marijuana Program, which Arizona recognizes.

The Yuma County Sheriff’s Department, however, refused her request to return her marijuana.

Attorneys for the sheriff argued that Arizona law requires any marijuana seized in connection with a drug offense be forfeited to the state and that the sheriff would be violating federal law by giving the drug to someone else – positions state courts have rejected.
Wilmot had another concern: being prosecuted under federal law for giving out an illegal drug.

But in its ruling last year, the state Court of Appeals said that fear is without merit.

“The sheriff is immune from prosecution under federal law for acts taken in compliance with a court order,” wrote Judge Diane Johnsen for the court.

12 comments

  1. Sounds like a run-of-the mill case that the U.S. Supreme Court properly refused to consider. There is NO conflict among lower courts on the issues presented by the appeal, and there is NO actual, present conflict between any State and Federal law. Federal Courts do not and cannot issue advisory opinions, and they cannot be used as a rarified debating society. Shortly after the voter-approved marijuana law was enacted Arizona filed a lawsuit in Federal Court, again seeking a “advisory” opinion on whether Arizona’s law conflicted with the Federal Controlled Substances Act. That case was thrown out solely because there was no “case or controversy” for the court to rule on, and because no State official had any evidence they were facing an imminent threat of Federal Prosecution (in fact, no similar prosecution has EVER occurred against state officials in the history of the Country).

  2. The elephants in the room are Polk and Montgomery. Since the time that we were ruled by kings if charges were not filed the evidence was returned. It is clear that neither of these people ever read the law or got out a dictionary as the judge had to do to clarify the meaning of the Arizona Medical Marijuana Act for Montgomery’s recent defeat regarding extracts. Polk and Montgomery seem to believe that we in Arizona have an endless stream of money that can be given to them to overturn the initiatives that the voters pass. This has got to stop so that we can try to do something for our schools that now have the lowest per pupil expenditures in the entire country thanks to these republicans. These people want to build private prisons rather than to empower those in our state through education. Polk and Montgomery might also want to be aware that when inflated estimates of the value of the marijuana that was seized were given to the newspapers in California that law enforcement had to pay for their destruction of evidence at their own inflated estimates of value.

  3. Uh, said the sheriff nervously, I wanted to give the weed back, but you know, I’m not sure if some of it was lost or something, and like…its been 3 years and its really dried out now… Can’t she just get some more in Cali…?

  4. The Sheriff is the LAWBREAKER in this case. He is FAILING to uphold Arizona LAW which states the MEDICINE should never have been taken. Wilmot is DISOBEYING a Superior Court ORDER to return the medicine. He is thumbing his nose at the LAW passed by the people of the state that pays his salary!!! CONTEMPT of Court…or IMPEACHMENT is his punishment! If he wants to give his “opinions” on what HE thinks the law SHOULD be…then go work for Fox Noise. If you wear the badge sir, OBEY the LAW.

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