ASA Forces Change to CHP Policy on Medical Marijuana SeizureCHP Policy Provides Greater Protection for Patients and Is Instructive for All CA Law Enforcement
On February 15, 2005, Americans for Safe Access (ASA) filed a group lawsuit against the California Highway Patrol (CHP) on behalf of six medical marijuana patients and caregivers. The lawsuit seeks a formal change in the CHP's policy regarding medical marijuana patients. The CHP is by far the worst violator of the Compassionate Use Act and SB 420 with its policy of mandatory confiscation of medicine. More than one-quarter of all patient arrests and seizures in California reported to ASA are from CHP encounters.
In order to quicken the pace of the lawsuit and put greater pressure on the CHP to change its unlawful policy, ASA filed a preliminary injunction on July 13, 2005.
As a result of ASA's lawsuit, the CHP adopted a new policy regarding patient and caregiver encounters on August 22, 2005. This new policy discourages CHP officers from confiscating medicine from patients and caregivers, and provides officers with instructions on how to verify valid medical marijuana documentation.
A two-page memo issued to all CHP Command Centers on the same day clearly defines for CHP personnel what the new policy means, including this example scenario of a medical marijuana traffic stop:
An officer initiates an enforcement contact on a vehicle at 0200 hours for a mechanical violation and observers (sic) a small baggie of what appears to be marijuana sitting on the seat next to the driver. The driver claims 11352.7 (sic) H&S and presents a note from a physician recommending medical marijuana. The officer should contact the local communication/dispatch center to attempt to verify the validity of the claim. If the claim is valid, and the individual is within the state/local limit, no enforcement action should be initiated regarding the medical marijuana.
ASA then settled its lawsuit on October 6, 2006, and obtained a "consent decree" signed by the CHP, the Governor, and Attorney General of California, to be upheld for at least 4 years. In addition, ASA was awarded $75,000 in attorneys fees to cover the cost of litigation.
It has been more than eight years since the passage of the Compassionate Use Act (CUA) in 1996, where California voters approved the use of marijuana for medical purposes. Since then, the California legislature has enacted law (SB 420) clarifying the CUA and explicitly allowing for transportation of marijuana by qualified patients and caregivers.
Unfortunately, local law enforcement in California has exhibited ongoing resistance to enforcing state law, despite the enactment of both the CUA and SB 420. While this inappropriate conduct by law enforcement occurs in the vast majority of California's 58 counties, the worst offender is the California Highway Patrol (ASA reports seizures or arrests in 48 out of 58 counties, or 83%). The official CHP policy states that, "[e]ven if a Section 11362.5 H&S claim is alleged, all marijuana shall be confiscated and booked as evidence according to HPM 70.1." (CHP General Law Enforcement Policy Manual, Chapter 1, Section 6(c)(4)(e))
As a result, numerous medical marijuana patients who are stopped by the CHP for minor traffic offenses have their medicine confiscated by the police as an added punishment. In most cases, when valid documentation is shown to officers, patients are forced to put up with responses such as "we don't recognize Proposition 215" or "possession of marijuana is still illegal."
Americans for Safe Access (ASA) filed a group lawsuit on behalf of six such patients in state court in Oakland, California on February 15, 2005. The lawsuit seeks to challenge the CHP's policy and force it to amend that policy so that it is in compliance with state law and not seize the medicine of patients. It does not address monetary compensation (damages) that may be available to a number of plaintiffs, but simply seeks injunctive relief (policy changes) and declaratory relief.
The CHP's policy of disregarding the CUA not only violates California law, but both the federal and state constitutions. The Fourth Amendment to the U.S. Constitution and Article I of the California Constitution both protect against unreasonable searches and seizures. They require that, at a minimum, police have probable cause to believe that a crime has been committed before subjecting people to search and seizure. In determining whether probable cause exists, the officer must take into account all of the surrounding facts and circumstances, including documentation indicating one's status as a qualified medical marijuana patient (People v. Mower (2002) 28 Cal.4th 457). The CHP's policy clearly runs afoul of these well-established constitutional principles by requiring the seizure of medical marijuana in all cases.
A clear example of this egregious behavior by CHP can be found in the story of one of the plaintiffs. Mary Jane Winters, a registered nurse who uses marijuana to treat chronic pain stemming from three herniated discs in her spine, was pulled over by the CHP on Thanksgiving Day, 2004 while on her way to deliver flowers to a homeless shelter. The officer seized her two ounces of marijuana, despite being presented with a physician's recommendation to use marijuana medicinally. There was no reason to believe, much less probable cause to believe, that Ms. Winters was not in compliance with California law. The same can be said of the remainder of the class to be represented by ASA – all are qualified medical marijuana patients who possessed very small amounts of marijuana, which they legally entitled to possess and transport under California law.
For further information or to have questions answered by the ASA legal staff, please contact our office at (510) 251-1856.