BILL ANALYSIS Ó
SB 303
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Date of Hearing: June 30, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
303 (Hueso) - As Amended April 27, 2015
As Proposed to be Amended in Committee
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
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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.
2)Requires a 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.
3)Specifies that law enforcement should take video of the
marijuana seized prior to destruction of the evidence and
further specifies that they should accurately demonstrate 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
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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.)
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
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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:
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
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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
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.
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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
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
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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
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
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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
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
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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
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