PHOENIX -- Sheriff's deputies will have to deliver three quarters of an ounce of marijuana to a California woman if a Yuma County court commissioner gets her way.
Lisa Bleich said it's not like she's ordering the deputies to become drug suppliers.
Instead, she pointed out, Valerie Okun had a valid medical marijuana card when the drugs were taken from her. The commissioner said all she is requiring is that the property be returned to its rightful owner.
Bleich acknowledged that marijuana remains illegal under federal law. But she rejected arguments that delivering the drugs to Okun would make the deputies guilty of illegal drug distribution under the federal Controlled Substances Act.
Now the case is before the state Court of Appeals. And what the judges rule about conflicts -- or lack thereof -- between state and federal law could set precedent for the entire state, long before Attorney General Tom Horne gets his own case to that point.
Court records show Okun was stopped in early 2011 at a Border Patrol checkpoint along Interstate 8.
Attorney Michael Donovan said officers searched her vehicle after a dog alerted on it, producing marijuana and hashish.
Rather than charge her under federal laws, the officers instead wrote up what amounts to a citation for violating Arizona drug laws, turning the matter over to county officials.
She has a medical marijuana card issued in California. And the Arizona law specifically provides for honoring valid cards from other states.
The result is that, five months later, the case was dismissed. Okun then filed for return of her property, with a judge ordering its release.
When Yuma County Sheriff Ralph Ogden refused, the judge ordered both sides to submit legal arguments to Bleich.
In what appears to be the first ruling in Arizona of its kind, Bleich specifically rejected arguments by prosecutors that federal laws making possession and distribution of marijuana a crime override the 2010 voter-approved law.
"Congress did not intend to trample on the rights of the state to make their own laws pertaining to illegal drugs and medical marijuana use,' the commissioner wrote earlier this year. "It further implies that state laws pertaining to medical marijuana use can co-exist with federal law without conflict.'
Anyway, Bleich wrote, she said a police officer would be violating federal drug laws only "if he or she intended to act as a drug peddler rather than a law enforcement official.' And Bleich, citing a ruling from a California appellate court, said it "seems exceedingly unlikely' that federal prosecutors would ever arrest a police officer for simply complying with a court order to return a patient's medical marijuana.
But Yuma County Attorney Jon Smith told Capitol Media Services that's not an answer.
"It doesn't resolve the fact that people shouldn't be forced to do things that are otherwise illegal under our state and/or federal law,' he said.
Deputy Yuma County Attorney Edward Feheley makes a similar argument in in seeking relief from the Arizona Court of Appeals.
"The sheriff is prohibited from delivering marijuana to a person he knows has no right to possess marijuana -- even for medical purposes,' Feheley wrote, pointing out the federal law concludes there is no legitimate medical use for the drug.
Feheley also said that Bleich is required to obey both state and federal laws. In this is case, he argued, there is a "direct conflict' between the two, and that the U.S. Constitution requires the court commissioner to accept federal law.
Beyond that, Feheley argued that the Arizona Medical Marijuana Act has no specific provision requiring or authorizing a court to return confiscated marijuana.
By contrast, he said, the Oregon law spells out that if medical marijuana is seized it "shall not be harmed, neglected, injured or destroyed' by police. And the Oregon law requires that any drug be immediately returned once it is determined it was legally possessed.
Donovan countered that the voter-approved law spells out that medical marijuana legally possessed "is not subject to seizure or forfeiture.'
"Accordingly, as a matter of law, if was the property of defendant that these officers seized illegally,' he is arguing to the appellate court. "Returning the property to the rightful owner at this stage of the proceedings is precisely what is directed.'
Donovan warned the judges that if courts do not order the return of the marijuana, police could thwart the whole Arizona Medical Marijuana Act by simply taking the drugs from those who are otherwise entitled to possess them under the state law.
"The police cannot retain a person's property without running afoul of basic constitutional considerations,' he wrote. "Continued official retention of legal property with no further criminal action pending violates the owner's due process rights.'
Horne said he does not believe that Bleich's ruling conflicts with his legal bid to have marijuana dispensaries declared in illegal conflict with federal law.
"Federal preemption does not stop the states from themselves decriminalizing marijuana,' he said. By extension, he said, states are free to issue -- and honor -- identification cards that show the person is a medical marijuana user and entitled under Arizona law to possess the drug.
Horne said what the state cannot do is license anyone to sell the drug. And he disputed the contention that anything the sheriff was being ordered to do was the equivalent of selling marijuana
"It's pursuant to a court order,' Horne said.
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