PHOENIX -- A California woman whose marijuana was taken away by a Border Patrol officer is entitled to force sheriff's deputies who now have it to give it back, the state Court of Appeals ruled Thursday.
The judges rejected arguments by the Yuma County Sheriff's Department that its deputies would be violating federal drug laws by giving Valerie Okun her marijuana back. Appellate Judge Diane Johnsen, writing for the unanimous court, said Okun is a legal medical marijuana user, meaning the state has no right to take away her drugs.
And Johnsen brushed aside concerns that any deputies involved in returning her drugs are going to wind up in legal trouble themselves.
"The sheriff is immune from prosecution under federal law for acts taken in compliance with a court order,' she wrote.
In a prepared statement, newly elected Sheriff Leon Wilmot said his office is currently reviewing the ruling with the county attorney's office before deciding whether to seek Supreme Court review.
Wilmot actually inherited the problem: It was his predecessor, Ralph Ogden, who fought the original order to return the drugs.
Okun was stopped nearly two years ago at a Border Patrol checkpoint along Interstate 8. Officers searched her vehicle after a dog alerted on it, finding marijuana and hashish.
The Border Patrol turned the matter over to county officials.
But charges against her were dropped after she showed she is authorized to possess the drug under California's Medical Marijuana Program. And Arizona's own Medical Marijuana Act recognizes cards issued in other states.
Okun then asked the court to return the seized three-fourths of an ounce of marijuana. While the judge agreed, the Yuma County Sheriff's Office refused.
A court commissioner subsequently ordered the return. But the sheriff's office instead appealed.
Attorneys for the sheriff said Arizona law requires that any marijuana seized in connection with a drug offense be forfeited to the state. But Johnsen said the lawyers are missing the point: Okun had a right under Arizona law to possess the drug in the first place, a point that even the lawyers for the county concede.
Johnsen also pointed out that Arizona's 2010 voter-approved law prohibits the imposition of any type of penalty against a qualified patient who has an allowable amount of marijuana. And state law permits medical marijuana cardholders to obtain up to 2 1/2 ounces of the drug every two weeks.
The appellate judges were no more swayed by arguments that the deputies would be violating federal law.
They pointed out that police who are enforcing any local or state drug law are immune from federal prosecution. While that exemption is probably meant to ensure that police can possess the drug as part of an undercover operation or in arresting someone, the court said the immunity applies here.
Johnsen and her colleagues sidestepped the question of whether the federal Controlled Substances Act preempts and thereby invalidates Arizona's medical marijuana law. They said it was not necessary for them to decide that issue in concluding she could get her drugs back.
Whether Okun's possession of marijuana may subject her to federal prosecution despite her state-law right to possess it is not a controversy before this court because the federal government has not charged Okun with any crime,' Johnsen wrote. "Not does public policy require us to decide the abstract issue the state presents.'
But the appellate judges will not be able to avoid that issue forever.
Maricopa County Attorney Bill Montgomery is appealing the ruling of a trial court judge who concluded the state's 2-year-old medical marijuana law is legal and is not preempted by federal law. Montgomery wants the appellate court to rule that the state is violating federal law by licensing dispensaries to sell the drug.
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