Legally Weird - The FindLaw Legal Curiosities Blog

Police Pot Holders Ordered to Return Marijuana Seized 1 Year Ago

It appears that respect for judicial officers has gone up in smoke in Washington state, as Tacoma police have refused a court order to return seized marijuana to its owner.

Judge Jack Emery ordered the police to return the pot to Joseph L. Robertson back in February, but law enforcement has decided to bogart his stash, reports The News Tribune.

Despite obvious issues with police refusing to follow a court order, the larger question remains: Do Robertson and others in Washington have legal property rights to their grass?

Initiative 502

Even though law enforcement may not like it, the stone(d)-cold fact is that it is now legal to possess marijuana in Washington state, thanks to Initiative 502.

This law allows individuals age 21 and older to:

  • Possess up to 1 ounce of marijuana for recreational purposes,
  • Grow marijuana in their homes (but only if they're medical marijuana patients), and
  • Be arrested for driving under the influence of marijuana.

But Initiative 502 hadn't yet been approved by voters when Robertson was arrested in May 2012, so the marijuana the police seized from him was possibly still considered contraband.

No Property Rights in Contraband

The U.S. Supreme Court agreed in United States v. Jeffers that even if federal law stated there were no property rights in contraband, defendants still had enough rights in their property to assert that it was seized in violation of the Fourth Amendment.

So even if there were no rights at the state or federal level to Robertson's stash, he should still retain the right to contest it being seized.

But there's really no need to get into the weeds with federal case law. When you get down to seeds and stems, the fact is that Washington's law is on Robertson's side.

Judge Gives Green Light

The current statute states pretty clearly that property cannot be seized as a result of the lawful possession of medical marijuana. For his part, Robertson has provided proof that he's an authorized medical marijuana patient, The News Tribune reports. What's more, prosecutors dismissed his charges in December 2012, after voters approved Initiative 502.

As Judge Emery has ruled from on high that law enforcement must return the ill-gotten grass, it is just a matter of time now to see whether the police choose to comply or continue to violate the order.

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