Filed 8/16/18

                                 CERTIFIED FOR PUBLICATION

                         IN THE SUPERIOR COURT OF CALIFORNIA

                                  COUNTY OF SAN FRANCISCO

                                       APPELLATE DIVISION


ROBERT T. SMITH,                                    )   Writ No. APP-18-008417
                                                    )
                  Petitioner,                       )   Case No. 18000519
        vs.                                         )
                                                    )
                                                    )
THE SUPERIOR COURT OF THE CITY AND                  )
COUNTY OF SAN FRANCISCO,                            )
                                                    )   ORDER GRANTING
                  Respondent;                       )   WRIT OF MANDATE
                                                    )
SAN FRANCISCO POLICE DEPARTMENT,                    )
                                                    )
                  Real Party in Interest.           )
                                                    )
                                                    )
                                                    )
                                                    )


ORIGINAL PROCEEDINGS in petition for writ mandate to vacate order denying non-statutory
motion to return property entered by Superior Court, County of San Francisco, Robert M. Foley,
Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. IV, § 6
of the Cal. Const.) Petition GRANTED.

Lara Bazelon for Petitioner.

No appearance for Respondent.

Ronnie M. Wagner, San Francisco Police Department Legal Division, for Real Party in Interest.


DECISION BY THE COURT

COLFAX, Acting P. J., Appellate Division, BEGERT, J., Appellate Division, HITE, J., Appellate
Division
       On April 26, 2018, Robert T. Smith filed a petition for writ of mandate, seeking review of the

lower court’s denial of his non-statutory motion to return property, to wit 21.8 grams of recreational

marijuana. After considering the evidence, arguments and applicable law, we hereby GRANT the

petition for writ of mandate. We hereby order the lower court to vacate its previous order denying the

motion for return of property, and enter a new order consistent with this decision.

                         FACTUAL AND PROCEDURAL BACKGROUND

       On January 9, 2018, SFPD Officer MacMahon responded to 923 Market Street to investigate a

report of a man making threats with a possible gun. Officer MacMahon ultimately arrested petitioner.

Officer MacMahon performed an inventory search of petitioner’s backpack, seizing 21.8 grams of

marijuana and $574.21 in cash. On January 11, 2018, petitioner was charged by misdemeanor

complaint with two counts of criminal threats (Pen. Code, § 422) and one count of disturbing the peace

(Pen. Code, § 415, subd. (3)). These charges were dismissed pursuant to Penal Code section 1385 on

March 7, 2018.

       On April 10, 2018, the lower court heard and denied petitioner’s motion to return the

marijuana. Petitioner timely filed the instant petition for writ, seeking the return of his 21.8 grams of

recreational marijuana. On May 16, 2018, we ordered the San Francisco Police Department to show

cause why it should not be ordered to return petitioner’s property under City of Garden Grove v.

Superior Court (2007) 157 Cal.App.4th 355 and any other applicable law.

                                             DISCUSSION

       The proper avenue of redress for denial of a defendant’s nonstatutory motion to return seized

property is through a petition for writ of mandate. (People v. Hopkins (2009) 171 Cal.App.4th 305,

308.) “When reviewing a trial court's judgment on a petition for ordinary mandate, we apply the

substantial evidence test to the trial court's findings of fact and exercise our independent judgment on

legal issues ….” (Cape Concord Homeowners Association v. City of Escondido (2017) 7 Cal.App.5th

180, 189.)

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       The Fourteenth Amendment to the United States Constitution provides that no state shall

“deprive any person of life, liberty, or property, without due process of law.” (U.S. Const., 14th

Amend., § 1; see also Cal. Const., art. I, § 15.) “Continued official retention of legal property with no

further criminal action pending violates the owner’s due process rights.” (Garden Grove, supra, 157

Cal.App.4th at p. 387.)

       On November 8, 2016, California voters approved Proposition 64, known as the “Control,

Regulate and Tax Adult Use of Marijuana Act,” which drastically reduced criminal punishments for

certain marijuana offenses. Most notably, Proposition 64 added Health and Safety Code section

11362.1, which legalized the possession of not more than 28.5 grams of cannabis for persons 21 years

of age or older.

       “All seizures of controlled substances … which are in possession of any city, county, or state

official as found property, or as the result of a case in which no trial was had or which has been

disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of

the court, unless the court finds that the controlled substances, instruments, or paraphernalia were

lawfully possessed by the defendant.” (Health & Saf. Code, § 11473.5.) A controlled substance is

“lawfully possessed” under this section if it lawfully possessed under California law. (Garden Grove,

supra, 157 Cal.App.4th at p. 380.) The Garden Grove court found that principles of due process and

fundamental fairness dictate the return of lawfully possessed marijuana. (Id. at p. 388-89.)

       However, under the Controlled Substances Act (21 U.S.C. § 801 et. seq. [CSA]), “simple

possession” of marijuana is a misdemeanor. (21 U.S.C. § 844(a).) Further, it is unlawful for any

person to knowingly and intentionally distribute marijuana. (21 U.S.C. § 841(a)(1).) The CSA defines

“distribute” to mean “to deliver a controlled substance or a listed chemical.” (21 U.S.C. § 802(11).)

The CSA further defines “deliver” to mean “the actual, constructive, or attempted transfer of a

controlled substance.” (21 U.S.C. § 802(8).)



                                                    2
I.     CALIFORNIA LAW AND THE FEDERAL CSA DO NOT “POSITIVELY
       CONFLICT.”

       The Supremacy Clause of the United States Constitution grants Congress the power to preempt

state law. (U.S. Const. art. 6, cl. 2.) State law that conflicts with federal law is “without effect.” (In re

Tobacco Cases II (2007) 41 Cal.4th 1257, 1265.) Consideration of issues arising under the Supremacy

Clause “starts with the assumption that the historic police powers of the States [are] not to be

superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.” (Jevne v.

Sup. Ct. (2005) 35 Cal.4th 935, 949.) Federal law preempts state law when: (1) Congress explicitly

proclaims that its enactment preempts state law; (2) the enactment regulates conduct in a field that

Congress intended the federal government to occupy exclusively; or (3) the state law conflicts with

federal law, making it impossible for a private party to comply with both state and federal

requirements. (Id. at p. 949-50.)

       “No provision of [the CSA] shall be construed as indicating an intent on the part of Congress to

occupy the field in which that provision operates, including criminal penalties, to the exclusion of any

State law on the same subject matter which would otherwise be within the authority of the State, unless

there is a positive conflict between that provision ... and that State law so that the two cannot

consistently stand together.” (21 U.S.C. § 903.) Here, the CSA explicitly states that its provisions do

not preempt state law and are not intended to exclusively occupy any field to the exclusion of state

law. Accordingly, the CSA would preempt state law only to the extent of an actual conflict, making it

impossible for a private party to comply with both state and federal requirements.

       a.      The CSA’s “Distribution” Provisions Do Not Apply to Officers Acting Pursuant to
               Their Professional Duties.

       California Law requires law enforcement officers to return “lawfully possessed” marijuana to

its owner. The CSA, however, prohibits the distribution of marijuana without regard to whether state

law permits its recreational use. The Garden Grove court confronted the scenario that involved

whether a law enforcement officer who returns medical marijuana under California law would also be

                                                     3
“distributing” marijuana under the CSA. The Garden Grove court found that “21 U.S.C. § 841(a)(1)

… does not apply to persons who regularly handle controlled substances in the course of their

professional duties.” (Garden Grove, supra, 157 Cal.App.4th at p. 390; see United States v. Feingold

(9th Cir.2006) 454 F.3d 1001, 1008 [§ 841(a)(1) could apply to doctor only if, in distributing a

controlled substance, he intended “to act as a pusher rather than a medical professional”].) The

San Francisco Police Department would be returning the instant marijuana pursuant to a court order,

and not acting as drug “pushers” the CSA was designed to combat. Accordingly, there is no “positive

conflict” between California Law and the CSA such that the two could not consistently stand together.

       b.      The CSA’s Law Enforcement Immunity Provision Further Eliminates Any
               Potential Positive Conflict.

       Under the CSA, “no civil or criminal liability shall be imposed by virtue of this subchapter …

upon any duly authorized officer of any State … who shall be lawfully engaged in the enforcement of

any law or municipal ordinance relating to controlled substances.” (21 U.S.C. § 885(d).)

Section 885(d) is intended to protect accepted law enforcement tactics “in which officers handle and

transfer drugs.” (U.S. v. Cortes-Caban (1st Cir. 2012) 691 F.3d 1, 20.)

       The Court concludes that section 885(d)’s clause, which states, “any law or municipal

ordinance relating to controlled substances” necessarily includes California’s statutory scheme for the

return of marijuana “lawfully possessed” under California law. The CSA’s law enforcement immunity

provision further eliminates any positive conflict between California’s return law and the CSA’s

prohibition on distribution of marijuana. Accordingly, the San Francisco Police Department is

immune from federal prosecution under the CSA when complying with California’s return provisions.

(See People v. Crouse (Colo. 2017) 388 P.3d 39, 45 (dis. opn. of Gabriel, J.); see also State v. Okun

(Ariz. Ct. App. 2013) 231 Ariz. 462, 466 [concluding that 21 U.S.C. § 885(d) immunizes law

enforcement officers from federal prosecution for complying with a court order to return the




                                                   4
defendant's marijuana]; see also Garden Grove, supra, 157 Cal.App.4th at p. 390 [same]; see also State

v. Kama (Or. Ct. App. 2002) 178 Or.App. 561, 564 [same].)

II.    PETITIONER IS ENTITLED TO RETURN OF MARIJUANA UNDER CALIFORNIA
       LAW.

       Petitioner seeks the return of his 21.8 grams of recreational marijuana. Petitioner “lawfully

possessed” this marijuana under California law, as he was over 21 years old and the amount was less

than 28.6 grams. As explained above, the San Francisco Police Department is immune from federal

prosecution under the CSA when complying with California’s return provisions. Accordingly, we

grant the petition for writ of mandate.

                                           DISPOSITION

       The petition for writ of mandate is GRANTED. The lower court is hereby ordered to vacate its

previous order denying the motion for return of property, and enter a new order consistent with this

decision.

       IT IS SO ORDERED.

DATE: August 16, 2018


                                                       Linda H. Colfax, Acting Presiding Judge



                                                       Christopher C. Hite, Associate Judge



                                                       Michael I. Begert, Associate Judge




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