BILL ANALYSIS Ó SB 303 Page 1 Date of Hearing: June 16, 2015 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 303 (Hueso) - As Amended April 27, 2015 SUMMARY: Permits the destruction of excess seized marijuana by law enforcement agencies, subject to specified evidentiary and preservation requirements. Specifically, this bill: 1)Authorizes law enforcement agencies to destroy seized marijuana in excess of 2-pounds, or the amount of marijuana a medical marijuana patient or designated caregiver is authorized to possess by ordinance in the city or county where the marijuana was seized, whichever is greater, subject to specified requirements. SB 303 Page 2 2)The bill would also require the law enforcement agency to retain at least one 2-pound sample and five random and representative samples consisting of leaves or buds, for evidentiary purposes, from the total amount to be destroyed. EXISTING LAW: 1)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.) 2)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.) 3)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.) 4)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.) 5)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.) SB 303 Page 3 6)Provides 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: (Health & Saf. Code, § 11479.) a) At least five random samples are taken and preserved in addition to the 10 pounds; b) In the cases of marijuana, at least one 10-pound sample and five representative samples consisting of leaves or buds shall be retained for evidence; c) Photographs of the material to be destroyed must be taken; d) The gross weight of the entire material must be determined; e) 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; f) 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; and, g) 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. FISCAL EFFECT: Unknown COMMENTS: SB 303 Page 4 1)Author's Statement: 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, or the amount of marijuana a medical marijuana patient is authorized to possess by the city or county where the marijuana was seized, 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)Existing Practices Regarding to the Return of Marijuana: 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 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 SB 303 Page 5 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 threatened 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, SB 1193 (Evans), 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 SB 303 Page 6 suit against the county, apparently under the Government Claims Act, and won a settlement. (Gov. Code, §§ 830-998.3.) 3)Issues Regarding Storage of Large Quantities of Marijuana and the Differences Between this Legislation and SB 1193 (Evans): SB 1193 (Evans), of the 2013-2014 legislative session was sponsored by PORAC - the Peace Officers Research Association of California. According to PORAC, officers have become increasingly concerned about storing large quantities of seized marijuana as evidence. Existing law requires a law enforcement agency to keep at least 10 pounds of seized marijuana, in addition to taking samples of the material and photographing the entire amount that the agency seized. In counties with extensive marijuana growing operations, keeping 10 pounds from numerous cases can amount to a great deal of marijuana, straining the ability of an agency to find space for secure storage. More important for rank and file officers are health concerns. Officers who come into contact with or proximity to stored marijuana are concerned about inhaling pesticides used on the crops and mold that can grow on the plant material. PORAC thus proposed reducing the amount of marijuana an agency must hold, while offering specified protections for persons who have valid authority to use medical marijuana. PORAC has noted that courts have ordered compensation be paid to medical marijuana patients whose marijuana was destroyed during storage; SB l193 (Evans) would have essentially codified and standardized that practice. Senator Evans moved her bill to the inactive file when the Assembly Appropriations Committee amended her bill to remove provisions which permitted the return of lawfully possessed marijuana to authorized patients and caregivers upon acquittal or dismissal of a criminal case. Additionally, the amendments removed the provisions which provided compensation to patients and caregivers for marijuana which was destroyed. This bill contains a provision which allows for preservation SB 303 Page 7 of seized marijuana in an amount of 2-pounds, or the amount of marijuana a medical marijuana patient or designated caregiver is authorized to possess by ordinance in the city or county where the marijuana was seized, whichever is greater. However, this bill does not contain a provision which allows compensation for destruction of otherwise lawfully seized marijuana. In People v. Kelly, (2010) 47 Cal. 4th 1008, the California Supreme Court ruled that patients could lawfully possess marijuana in excess of state imposed guidelines if their physician specifically states that they need more than the imposed limitations. Therefore, a patient may lawfully possess more marijuana than state imposed guidelines mandate. 4)Argument in Support: According to the Peace Officers Research Association of California, "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." 5)Argument in Opposition: According to Drug Policy Alliance "The Drug Policy Alliance believes the court has an important role under current law to balance the interests of law enforcement and defendants, which SB 303 would undermine. As currently amended, 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 life-saving therapy for thousands of Californians who suffer debilitating illnesses. Their rights should not be trammeled upon because some law enforcement officials find it inconvenient to seek a court SB 303 Page 8 order to destroy marijuana, or to store marijuana. Marijuana is not only property; it is not only evidence; for many it is medicine. Let the courts keep their role in deciding if law enforcement should destroy cannabis. "We supported the substantively similar SB 1193 by Senator Evans last year, after a compromise was struck by the Senator's office that accomplished the goals of the sponsor, but also protected the fundamental medical and property rights of medical marijuana patients. Drug Policy Alliance testified in support of the amended bill in Assembly Public Safety on June 24th, 2014. DPA was forced to oppose SB 1193 when Assembly Appropriations stripped the section that required that any medical marijuana or property seized that was lawfully possessed by a defendant be returned to the defendant if the case is dismissed or the defendant is acquitted based on a defense or protection provided in the Compassionate Use Act of 1996, or that the defendant be compensated for the loss of their lawfully possessed medical marijuana and property. Senator Evans kept to her word, and did not move it forward without the patient protections. "SB 303 as currently amended does not include any of the patient protection aspects that allowed us to support Senator Evan's bill. We trust the author's good intent, but we must oppose SB 303 (Hueso) unless amended to include patient protections." 6)Prior Legislation: SB 1193 (Evans), of the 2011-2012 legislative session, reduced the sample size that law enforcement must maintain as evidence in criminal cases related to the unlawful possession or cultivation of marijuana, and provides for the return of seized marijuana when a case is dismissed or a defendant acquitted. SB 1193 was moved to the inactive file on the Assembly Floor. REGISTERED SUPPORT / OPPOSITION: Support SB 303 Page 9 Imperial County Sheriff's Office (Co-Sponsor) Peace Officers Research Association of California (Co-Sponsor) California District Attorneys Association California Narcotic Officers' Association California State Sheriffs' Association Opposition American Civil Liberties Union Drug Policy Alliance Analysis Prepared by:Gabriel Caswell / PUB. S. / (916) 319-3744