BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 303 Hearing Date: April 14, 2015
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|Author: |Hueso |
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|Version: |February 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Controlled Substances: Destruction of Seized
Marijuana
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation:SB 1193 (Evans) - 2013, died on the Assembly
Floor
Support: California District Attorneys Association; Imperial
County Sheriff
Opposition:Drug Policy Alliance; American Civil Liberties Union
PURPOSE
The purpose of this bill is to allow a law enforcement agency to
destroy all but two pounds of seized marijuana, if the agency
complies with existing requirements that it weigh the entire
amount seized, take representative samples and photograph the
marijuana.
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Existing law provides that controlled substances and devices or
paraphernalia for using or administering controlled substances
that are possessed in violation of relevant statutes may be
seized by law enforcement officers. A search warrant may be
issued for seizure. (Health & Saf. Code § 11472.)
Existing law provides that, except as provided in the controlled
substance assets and instrumentalities forfeiture law, all
controlled substances, and instruments or paraphernalia
associated with the controlled substances, seized as a result of
a case that ended with the defendant's conviction, shall be
destroyed by the court of conviction. (Health & Saf. Code §
11473.)
Existing law provides that all controlled substances, and
instruments or paraphernalia associated with the controlled
substances, seized as found property or as a result of a case
that ended without trial, dismissal or conviction, shall be
destroyed unless the court finds that the defendant lawfully
possessed the property. (Health & Saf. Code § 11473.5.)
Existing law provides that an order for destruction of
controlled substances and associated instruments and
paraphernalia may be carried out by a police or sheriff's
agency, the Department of Justice, Highway Patrol or Department
of Alcoholic Beverage Control. (Health & Saf. Code § 11474.)
Existing law provides that controlled substances listed in
Schedule I (Health and Saf. Code § 11054) possessed, sold or
transferred in violation of the controlled substances control
statutes, and plants from which controlled substances are
derived, are contraband, which must be seized and forfeited to
the state. (Health & Saf. Code § 11475.)
Existing law, as an exception to the other statutes concerning
seizure and destruction of controlled substances, provides that
law enforcement may, without a court order, destroy seized
controlled substances in excess of 10 pounds, where the
following circumstances are present:
At least five random samples are taken and preserved in
addition to the 10 pound.
In the cases of marijuana, at least one 10-pound sample
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and five representative samples consisting of leaves or
buds shall be retained for evidence.
Photographs of the material to be destroyed must be
taken.
The gross weight of the entire material must be
determined.
The chief law enforcement officer has determined that it
is not reasonably possible to keep all of the material or
to store it in another place.
Within 30 days of destruction of the material, an
affidavit demonstrating compliance with this section must
be filed in the court with jurisdiction over any criminal
proceeding associated with the material.
If no criminal action is pending, the affidavit may be
filed in any court in the county that would have
jurisdiction over a criminal action involving the material.
(Health & Saf. Code § 11479.)
This bill provides that a law enforcement agency may destroy any
amount of growing or harvested marijuana exceeding two pounds if
the requirements for weighing, photographing and taking samples
of the marijuana are met.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has
contributed to reducing the prison population;
Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
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According to the author:
Law enforcement offices are required by law to store
10 pounds marijuana and 5 additional representative
samples for evidence. According to a June report by
the California Attorney General's Office, nine
counties in California: Shasta, Glenn, Mendocino,
Sacramento, Merced, Madera, Fresno, Ventura, and Los
Angeles currently possess over 1,000 pounds of
marijuana. This can be very burdensome on these
agencies because most facilities were not intended to
store such large quantities- forcing these agencies to
create additional storage facilities onsite resulting
in significant costs to law enforcement.
In addition to the lack of adequate storage facilities
to store the marijuana held for evidence, it is also a
serious threat to the health of law enforcement
personnel. Because marijuana is a plant, it begins to
develop spores and mold within a short period of time.
This leads to difficulty breathing and other harmful
side effects as a result of frequent handling of the
storage items inside these evidence rooms.
By reducing the amount of evidence marijuana stored
from 10 pounds to 2 pounds, law enforcement will be
not only save funding for storage but the reduced
amounts but will allow for easier storage and
safekeeping of the marijuana, thereby decreasing
impacts to officers health and safety.
2.Return of Marijuana and Compensation under Existing Law and
Practice
The laws and practices in various counties concerning return of
marijuana to a qualified patient and compensation to a patient
for destruction of marijuana do not appear to be consistent or
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clear. The most widely-known case is Garden Grove v. Superior
Court (Kha) (2007) 157 Cal.App.4th 355. In Garden Grove, city
police made a vehicle stop of Felix Kha. The arresting officers
took of an ounce of marijuana from Kha. Marijuana possession
charges were dropped when Kha established that he had a valid
medical marijuana recommendation. Kha sought return of this
marijuana, the city refused to do so and the Court of Appeal
eventually ordered the city to return the marijuana. (Id. at
pp. 386-392.)
In County of Butte v. Superior Court (Williams) (2009) 175
Cal.App.4th 729, sheriff's deputies threated to arrest David
Williams, a qualified medical marijuana patient and a member of
a medical marijuana collective, if he did not destroy all but 12
of the collective's 41 plants. Williams sued the county,
alleging unreasonable search and seizure, violations of
California civil rights law (Civ. Code § 52.1) and conversion -
a form of theft or wrongful destruction. The county sought
summary dismissal of the suit, arguing that it did not present a
cognizable claim. The appellate court ordered the suit to
proceed. Committee staff has been unable to find any appellate
decisions - including unpublished decisions - applying the Butte
County v. Superior Court decision. However, an appellate
decision would only be issued if one of the parties to a case
appealed the order. Counties and cities may have accepted the
decision in Butte County v. Superior Court that lawsuits for
compensation for seized marijuana could go forward. Allowing
the case to proceed does not mean that the person seeking
compensation will win the case and be compensated. The county
or city could still defend their actions when the case is fully
litigated. Or, as noted below, counties and cities could have
settled the suits, thus avoiding the substantial costs of
litigation.
In connection with a related bill in 2014, the sponsor provided
committee staff with examples of cases in which government
entities were required to compensate patients for medical
marijuana that was destroyed by a law enforcement agency. For
example, in a San Luis Obispo County matter, the sheriff's
office paid medical marijuana patient Kimberly Marshall $20,000
to compensate her for destroyed marijuana. Marshall had a
recommendation allowing her to possess up to six pounds of dried
marijuana buds. Marshall's attorney filed suit against the
county, apparently under the Government Claims Act, and won a
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settlement. (Gov. Code §§ 830-998.3.)
IF PROVISIONS ARE NOT MADE FOR THE COMPENSATION OF LEGITIMATE
MEDICAL MARIJUANA PATIENTS AND CAREGIVERS WHOSE MARIJUANA AND
RELATED EQUIPMENT WERE DESTROYED PURSUANT TO THIS BILL,WILL LAW
ENFORCEMENT AGENCIES BE SUBJECT TO LITIGATION AND JUDGMENTS
REQUIRING COMPENSATION IN NUMEROUS INDIVIDUALLY FILED CASES?
3.Argument in Support
The Peace Officers Research Association of California argues in
support:
Currently, California law states that a law
enforcement agency must store 10 pounds of cannabis
and take five random samples from the entire seizure.
The storage requirement has become a burden on
agencies and evidence storage facilities, as evidence
lockers were not built to house such large quantities
of marijuana. Furthermore the marijuana itself can
contain dangerous pesticides and often begins to
decompose or mold, causing health risks to officers
coming in contact with it.
4.Argument in Opposition
The Drug Policy Alliance argues in opposition:
Drug Policy Alliance opposes SB 303, an act to
authorize the law enforcement agency to destroy seized
substances suspected to be marijuana in excess of 2
pounds, subject to specified requirements and require
the law enforcement agency to retain at least one
2-pound sample and 5 random and representative samples
consisting of leaves or buds, for evidentiary
purposes, from the total amount to be destroyed.
As introduced, the bill would allow law enforcement
agencies to destroy medical marijuana, legally
possessed by a bona fide patient or caregiver before
the defendant has the opportunity to provide evidence
that shows that they are allowed under California law
to cultivate or possess medical marijuana. Medical
marijuana is a lifesaving therapy for thousands of
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Californians who suffer debilitating illnesses. Their
rights should not be trammeled upon because some law
enforcement officials find it inconvenient to store
ten pounds of evidence-evidence that may not only be
property, but may in fact be medicine.
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