Tuesday, October 20, 2009 at 12:11 p.m.
In a remarkable opinion issued today with potential Orange County implications, the United States Court of Appeals for the Ninth Circuit blasted the Los Angeles Police Department (LAPD) for committing "highly objectionable," "tainted," "reckless," "misleading" and "illegal" conduct in a 2005 attempt to seize more than $186,400 from a legally compliant Southern California medical marijuana distributorship.
The justices showed no patience for LAPD's efforts to keep the cash for itself and then later--after it was clear they couldn't take possession legally--transferred it to Thomas P. O'Brien's LA-based U.S. Attorney's office, which planned to kickback as much as 80 percent of the money to the local cops.
"We are particularly concerned by the possibility that the LAPD might stand to profit from [its own] unlawful activity," wrote circuit Judge Richard R. Clifton, who went on to describe the money grab as "disturbing" and a "distinct" violation of the U.S. Constitution's limitations of police state activities such as tainted searches and seizures of private property.
The opinion reverses a federal District Court's ruling that blocked a summary judgment motion by United Medical Caregivers Clinic, Inc., which was trying to regain its plundered cash from federal agents. Though California law allows for medical marijuana distributorships, the feds eventually grabbed the clinic's cash under the theory that all marijuana sales are illegal under federal law. LAPD's misconduct should not preclude federal agents (who weren't involved in the case) from taking control of the money, federal prosecutors said.
(Interestingly, in a specious, last-ditch effort to prevent the clinic from recovering its funds, LAPD also argued that they'd conducted the search to protect federal law.)
But arguments by O'Brien's office failed in large part, according to the justices, because LAPD officers lied to gain the initial state judge-approved search warrant by failing to note that the clinic was operating lawfully under state law. In other words, the cops had no probable cause for their search that produced the cash, 209 pounds of marijuana, 21 pounds of hashish and 12 pounds of marijuana oil.
Noting the "strong" self-interest cops have in seizing drug assets for themselves, the justices said, "The integrity of this court is served by our refusal to allow the government to profit from illegal activity by law enforcement when such activity produces incriminating evidence."
In recent months and after this case was filed, U.S. Attorney General Eric Holder announced that federal agents will not prosecute medical marijuana providers in states where the activity is legal.
--R. Scott Moxley / OC Weekly