Wacky tabacky case

There’s no denying that it sounds wacky: The California Court of Appeal has upheld a lower court decision ordering the police to give back the marijuana seized from a driver during a routine traffic stop. This is likely to generate a wave of “Only in California” jokes, but just because it’s wacky doesn’t mean it’s wrong.

In 2005, Garden Grove police officers stopped Felix Kha for failing to yield at a red light. Kha consented to a search of his car, and police found one-third of an ounce of marijuana that Kha explained was for medicinal purposes. Orange County prosecutors dismissed drug charges against him after contacting his doctor, and Kha sought the return of his property. The police refused, saying that returning the drug would violate federal laws against marijuana distribution and possession. The Superior Court of Orange County found for Kha, saying the state never convicted him of possessing marijuana illegally and therefore, under California law, the stash was not contraband. Garden Grove appealed.

Can a city invoke federal law to justify its recalcitrance in complying with state law? This is where things could have gotten sticky. But the court correctly found that in this case federal law did not take precedence over California law. The federal government is perfectly free to seize Kha’s marijuana if it chooses, the court found, but medical marijuana is legal in this state and neither the police nor the courts are charged with enforcing federal law. “We would be astonished if prosecutors began filing federal charges in state courts,” the court wrote.


Numerous law enforcement agencies sided with Garden Grove in its appeal, arguing that returning the marijuana to Kha was practically anti-American. It would turn cops into criminals and damage the high moral standing of local law enforcement, which often cooperates with federal law enforcement. The court responded that police were not likely to be prosecuted for distributing marijuana unless they intentionally began dealing drugs, and that while it’s fine for the police to work with federal agencies, their more traditional duty is to uphold state law.

As this page has previously noted, there is nothing like a polarizing social issue during a period when conservatives hold sway in Washington to convert liberals into champions of states’ rights and conservatives into zealous defenders of the federal government. But the court deftly navigated this territory as well. By returning Kha’s marijuana, the court wrote, “Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens.”