BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1193 (Evans) 3
As Amended April 23, 2014
Hearing date: April 29, 2014
Health and Safety Code
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DESTRUCTION OF MARIJUANA SEIZED AS EVIDENCE
STANDARDS, PROCEDURES AND COMPENSATION WHERE REQUIRED
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation: None directly on point
Support: California Narcotics Officers Association; California
State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
SHOULD A LAW ENFORCEMENT AGENCY HOLDING MARIJUANA AS EVIDENCE BE
ALLOWED TO DESTROY ALL BUT TWO POUNDS OF THE MARIJUANA WITHOUT A
COURT ORDER IF REPRESENTATIVE SAMPLES ARE PRESERVED, PHOTOGRAPHS ARE
TAKEN OF THE MATERIAL AND THE DEFENDANT IS ALLOWED TO OBSERVE THE
EVIDENCE?
WHERE THE DEFENDANT IS CHARGED WITH A MARIJUANA OFFENSE, BUT IS
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ACQUITTED OR THE CHARGES ARE DISMISSED PURSUANT TO A MEDICAL
MARIJUANA DEFENSE, SHOULD HE OR SHE BE ENTITLED TO RETURN OF SEIZED
MARIJUANA AND ANY ASSOCIATED PROPERTY, OR TO SEEK COMPENSATION IF
THE MARIJUANA OR THE PROPERTY WAS DESTROYED OR DAMAGED?
PURPOSE
The purposes of this bill are to 1) allow a law enforcement
agency to destroy all but two pounds of seized marijuana, if the
agency takes representative samples, photographs the material
and allows the defendant to inspect the evidence before
destruction; and 2) provide that in a case in which marijuana
charges are dropped or the defendant acquitted pursuant to a
medical marijuana defense, the defendant is entitled to return
of the marijuana and associated property, or to be compensated
for destruction of, or damage to, the marijuana and associated
property.
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 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
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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 pounds.
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.
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
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jurisdiction over a criminal action involving the material.
(Health & Saf. Code � 11479.)
This bill provides the following changes to the statute allowing
a law enforcement agency to destroy any amount of controlled
substances exceeding 10 pounds if samples are taken, the
material is photographed and weighed:
The agency must retain at least two pounds of marijuana
held as evidence.
The agency must obtain specified representative samples.
The defendant must be allowed to inspect the entire
amount of marijuana prior to destruction.
Upon acquittal or dismissal of the charges pursuant to a
medical marijuana defense, the defendant is entitled to
return of the marijuana and associated property.
If the marijuana or associated property has been damaged
or destroyed, the defendant is entitled to reasonable
compensation.
The defendant has six months from acquittal or dismissal
of the charges to seek return of the marijuana or
compensation.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
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Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
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accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
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.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
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Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Current law requires a law enforcement agency to
retain as evidence ten pounds of confiscated cannabis,
along with five random samples of the evidence.
Many sheriffs' departments, especially those in rural
Northern California counties, are finding the "ten
pound" requirement burdensome in two ways. First, the
storage space alone can be troublesome and expensive.
Most evidence lockers were not built to contain such
large quantities of cannabis and sometimes outdoor
storage facilities are being considered, adding an
additional risk and cost to the agency. Second, and
most importantly, the peace officers working in these
evidence facilities are may be subject to unknown
pesticides and chemicals being used to sustain what
may be an illegal grow. Further, after a short period
of time, much of the crop can begin to spoil and
mildew, causing additional health risks.
This bill will simply reduce the storage requirement
for California's law enforcement agencies to a more
sustainable quantity, while simultaneously clarifying
a defendant's evidence rights.
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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
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.) The analysis in Garden Grove is very detailed,
with only the final result subject to simple explanation.
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.
The sponsor has 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 ��
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830-998.3.)
3. Line Law Enforcement Officers' Concerns About Storing Large
Quantities of Marijuana
This bill is sponsored by PORAC - the Peace Officers Research
Association of California. PORAC represents rank and file peace
officers. The provisions in the bill have been negotiated among
PORAC and representatives of medical marijuana and drug reform
advocates.
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. This bill would
essentially codify and standardize that practice.
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