BILL ANALYSIS �
SB 1193
Page 1
Date of Hearing: June 24, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1193 (Evans) - As Amended: June 19, 2014
SUMMARY : Reduces 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. Specifically, this bill :
1)Reduce the storage and sample requirement for law enforcement
to hold marijuana as evidence from 10 pounds plus 5
representative samples to 2 pounds plus 5 samples.
2)Provides that in a criminal prosecution in which the defendant
was acquitted or the case dismissed based on a medical
marijuana defense, as specified, upon the order of the court,
the following shall apply:
a) Any marijuana, instrument, or paraphernalia seized in
the case that was lawfully possessed by the defendant shall
be returned to him or her;
b) If any marijuana, instrument, or paraphernalia seized in
the case that was lawfully possessed by the defendant was
damaged or destroyed, the defendant shall receive
reasonable compensation for the damage or loss; and,
c) A claim pursuant to this subdivision shall be presented
not later than six months after acquittal or dismissal in
the case.
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
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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.)
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
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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 :
1)Author's Statement : 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 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
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evidence rights."
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.) 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 ��
830-998.3.)
3)Issues Regarding Storage of Large Quantities of Marijuana :
This bill is sponsored by PORAC - the Peace Officers Research
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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.
4)Argument in Support : According to the Greater Los Angeles
Collective Alliance , "SB 1193 would not only help law
enforcement manage evidence more efficiently, it frees up
personnel and increases badly needed space in evidence storage
facilities."
5)Argument in Opposition : According to the California State
Sheriffs' Association , "as amended on May 20, 2014, SB 1193
would increase burdens on local law enforcement staff and
fiscal resources by increasing the amount required for
evidentiary retention from the proposed 10 representative
samples to at least 2 pounds and five random samples.
Additionally, the measure would require law enforcement to
return or provide compensation, above what is currently
required by case law, for all damaged or destroyed evidence
should the case be dismissed or the defendant acquitted."
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REGISTERED SUPPORT / OPPOSITION :
Support
Americans for Safe Access
Brownie Mary Democratic Club of Los Angeles County
Greater Los Angeles Collective Alliance
Peace Officer Research Association of California
Opposition
California Police Chiefs Association
California State Sheriffs' Association
Judicial Council of California
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744