In November of 2003, medical marijuana patients James Spray has his medical marijuana seized after members of the Huntington Beach Police came to his home in response to an “erroneous 911 call.” The officers seized approximately five ounces of marijuana, twelve immature plants, and jar of concentrated cannabis and marijuana cultivation equipment.

Spray, then, filed a motion in the Superior Court, but the motion was denied, with the judge claiming that there was no authority for this under California law. What made the case most interesting to me was that it occurred in Orange County. This was the hotbed for return of medical marijuana cases because that’s where the only published case occurred. In Chavez v. Superior Court, the court held that Marvin Chavez was not entitled to the return of his more than ten pounds of medical marijuana because he admitted that it was not all for his personal medical use. Courts and prosecutors throughout the state relied on this case for the proposition that no medical marijuana patient can have his marijuana returned even when legally possessed under California law. The Chavez case did not say this, and we had been fighting this in a number of cases; however, because one can only appeal the denial of a motion for return of property through a procedure known as a writ, the appellate courts could elect to ignore us altogether, which is what they did.

By the end of the day, I had filed a half dozen writs, and trust me, they are burdensome. But the most promising one involved Felix Kha, who was granted his motion for return of property and the City, for a change, had to file the writ after we threatened it with contempt for refusing to return his marijuana. that was in October of 2005. The case, then, just sat there for months and there was nothing we could do to get it going — until Jim Spray’s case came along. With the filing of the writ in his case, I could remind the court of appeal that the Garden Grove case was pending and that this was an issue that needed to be resolved. I had become frustrated and James Spray’s case was a vehicle to push the issue along. It did.

Soon after we filed the writ in Jim Spray’s case, the Garden Grove case got moving again. Eventually, both cases were consolidated for oral argument and, in bizarre fashion, I argued consecutively — first, as the Real Party in Interest on one side of the court in Garden Grove; then, moving my briefcase three feet over, as the Petitioner in Spray. All of the Justices cracked a smile on this one. That’s some lawyer humor for you.

Three months later, decisions were entered in favor of our side in both cases, as you probably all know by know. Garden Grove v. Superior Court (Kha). was published. Spray was not, but both resulted in orders for the return of medicine. Still, the difficulties continued.

For reasons still unknown to me, the Superior Court refused to issue a written order for the return of Spray’s property, despite being directed by the court of appeal to do so. This required a lot of persistence on Jim’s part, as well as some work by mine. Finally, after I sent the court a letter with the order and the opinion attached the trial court signed the order.

Jim was delighted when I gave him the news and, two days ago, he took the order to the Huntington Beach Police Department to get his medicine and equipment back. Although much of the cultivation equipment had been mysteriously destroyed and the dried marijuana and marijuana plants were unusable, one jar contained several grams of concentrated cannabis that Jim may still use. I never thought I’d see the day.

This entry was posted on Thursday, September 18th, 2008 at 3:14 pm and is filed under Medical Cannabis. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.