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California case
Chavez v. Superior Court, 123 Cal. App. 4th 104
2004
After the dismissal of a marijuana charge against him, petitioner sought the return of "a reasonable amount" of marijuana for medicinal purposes under Cal. Health & Safety Code ' 11362.5. The Superior Court trial judge denied his motion, and citizen sought a writ of mandate, challenging that order.
The judge dismissed the charges against petitioner, which included possession for sale. Citizen = s lawyer then filed a motion for the return of property (five pounds of marijuana). His lawyer argued that his client was entitled to possess, use, and cultivate marijuana pursuant to ' 11362.5, the Compassionate Use Act of 1996. The appellate court found that the judge was right when he denied the motion for the return of property, even though the State conceded that the citizen was a qualified patient, because the amount of marijuana seized (4.5 pounds dried, 10 pounds drying, and 46 plants) confirmed that the citizen was in lawful possession. Cal. Health & Safety Code ' ' 11473.5 and 11475 required the destruction of the marijuana, destruction did not violate the Compassionate Use Act, and the court was without authority to return contraband to the individual from whom it was seized.
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