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Interesting Twist on When Oregon Law Enforcement Must Return Seized Medical Marijuana

ORS 475.323 requires a state or local law enforcement agency to return medical marijuana it has seized if the District Attorney determines the individual from whom it was seized was “entitled to the protections” of the Oregon Medical Marijuana Act.  Such a determination need not be express, but may be evidenced by a decision not to prosecute, the dismissal of charges or an acquittal. In State v. Kama the Oregon Court of Appeals rejected law enforcement’s argument that returning medical marijuana would force it to violate the federal Controlled Substances Act.  So today’s decision by the Court of Appeals in State v. Ehrensing, reversing a court order returning marijuana, comes a bit out of left, or is it right, field! This is particularly true since this is the second time Mr. Ehrensing and the Douglas County Sheriff took this same field with the appeals court as umpire.  Last time the court called Mr. Ehrensing safe, he got his marijuana back, but only because of a fielding error.  This time the umpire called him out!

The difference this time was that the charges against Mr. Ehrensing were not dismissed by the DA.  Instead they were dismissed by the court on speedy trial grounds, which is not the same as an acquittal.  This meant ORS 475.323 did not apply.  This left ORS 133.643, the general statute applying to disputes over items seized by law enforcement.  That statute requires the party seeking return to be “lawfully entitled to possess” the property sought.  Today’s decision held that required the person to be lawfully entitled to possess the property sought under state and federal law.  Since federal law prohibited possession of marijuana by Mr. Ehrensing, he was not eligible for return under the statute.

This case leaves two issues in its wake.  First, it did not overrule Kama.  While that means Kama’s holding stands, the courts language in Ehrensing could be read as supporting an alternative basis for the court to find return under ORS 475.323 improper. Only time will tell. Second, the opinion did not address ORS 133.623 which directs law enforcement in the handling of property seized without a warrant.  That statute does not contain the “lawfully entitled to possess” language of ORS 133.643.  However, it does require the person seeking return to establish the “right to possession beyond a reasonable doubt” and “to the satisfaction of the seizing officer”. It also allows law enforcement to obtain a court order to destroy “contraband”.  These provisions make it doubtful any law enforcement agency will voluntarily return seized marijuana under this statute.

One final point. DA’s refuse prosecution of or dismiss cases for many reasons.  Under ORS 475.323  that decision should only result in the return of seized marijuana if the DA concluded the individual from whom it was seized was entitled to the protections” of the Oregon Medical Marijuana Act.  While that statute allows the court to consider the DA’s action as evidence of such a conclusion, it does not prohibit the court from considering other evidence in determining if such a conclusion was reached.  Where the dismissal is motivated by some other reason, witness availability, evidentiary problems, whatever, the DA’s office should document those reasons and oppose the return of the Marijuana.

Use Care Responding to Public Records Requests

For a number of reasons.  Just ask the city of San Jose, California, which is having a hard time retrieving privileged documents it sent a law firm in response to its public records request. Read more at the Findlaw’s In-House counsel blog