• Seizure and Destruction of Marijuana Was Lawful
  • August 14, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • Three individuals with physician recommendations for medical marijuana challenged a county’s seizure and destruction of over 1,500 pounds of marijuana. The court of appeal held that the seizure was supported by probable cause, the county lawfully destroyed the seized marijuana, and the individuals failed to bring forth evidence of lawful possession. (Littlefield v. County of Humboldt (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., June 28, 2013).


    During open field marijuana eradication operations, deputies from the Humboldt County Sheriff’s Department, along with agents from the Campaign Against Marijuana Planting (“CAMP”), entered a garden that contained 118 marijuana plants. A loaded rifle with a 50 round clip was found in a small tent in the garden. Posted on the front gate and inside the garden were four medical marijuana recommendations written by Dr. Norman Bensky for Silvia, Timothy, and Roscoe Littlefield and Jeffrey Libertini. The recommendations for the Littlefields provided for up to two ounce of cannabis a day, but the recommendation for Libertini did not identify a dose or ailment. The recommendation for Silvia specified it was for glaucoma and degenerative joint disease, the recommendation for Roscoe specified low back pain and degenerative joint disease, and the recommendation for Timothy specified anxiety and low back pain.

    A footpath from the garden led to a second plot where deputies located an additional 96 marijuana plants. Medical marijuana recommendations for Richard Littlefield and Summer Brown were posted in the second garden that recommended up to two ounces daily for low back pain and degenerative joint disease. Timothy told a deputy that each recommendation allowed each user to possess 45.6 pounds of marijuana per year. Sergeant Wayne Hanson believed the recommendations were invalid and he told a deputy to seize the marijuana. Hanson determined that the combined canopies of the two gardens “exceeded the 100 square foot canopy per person limitation determined to be reasonable” pursuant to the County of Humboldt’s guidelines for medical marijuana prosecutions. The total canopy was 977 square feet per person which is almost 10 times that which is considered reasonable under County’s guidelines. The combined weight of the marijuana was approximately 1,508 pounds. Officers removed a ten-pound sample of cannabis and five sub-samples and then removed the rest of the cannabis and destroyed it. An affidavit from a deputy stated that the Sheriff determined it was not reasonable to preserve the marijuana in place or move it to a different location.

    No arrests were made and criminal charges were not filed as a result of the raid. The Littlefields sued the County for damages for the replacement value of the cannabis, medical expenses, physical and mental suffering, and emotional distress. The County and the Littlefields filed cross-motions for summary judgment. The trial court granted County’s motion for summary judgment and denied the Littlefield’s motion.


    The Compassionate Use Act (“CUA”) “provides an affirmative defense to prosecution for the crimes of possession and cultivation” but does not specify an amount a patient may possess or cultivate. Case law has established “that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs.” The Medical Marijuana Program (“MMP”) provided restrictions on the quantity of medical marijuana that may be possessed but those restrictions were later determined to be an unconstitutional. Now, “we are once against left with the ‘reasonable amount’ standard that controlled before the legislature enacted the MMP.”

    The reasonable standard “is a flexible standard based upon the individual user” but “it is not without reasonable limits that include consideration of quantity.” Law enforcement officers may arrest a qualified patient “if they have probable cause, based on all of the surrounding facts including qualified patient status . . . that the arrestee does not possess marijuana for his personal medical purposes.” The court found that the quantity of marijuana found on the Littlefields’ property would “lead a person of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.”

    The court rejected the Littlefields’ argument that any reasonable suspicion that the officers may have had regarding unlawful possession was vitiated when the officers found the medical recommendations. It found that “the sheer quantity of marijuana under cultivation could lead a reasonably prudent officer to conclude that the [Littlefields’] production far exceeded their medical needs.” The court expressed skepticism regarding Dr. Bensky’s recommendation of up to 45.6 pounds per person each year, which is 15 times what the County’s ordinances deemed reasonable. Also, the court found that it would be reasonable to “question the likelihood that all five of Dr. Bensky’s patients, including four members of the Littlefield family, suffered from degenerative bone disease and/or low back pain.”

    The officers’ entry onto the Littlefields’ property was consistent with the “open fields” doctrine. The court held that the undisputed evidence showed that the officers had probable cause to believe that the marijuana was unlawfully possessed. The court further found that the County lawfully destroyed the marijuana that had been seized. Health and Safety Code section 11479 provides that if law enforcement seizes a suspected controlled substance, any “amount in excess of 10 pounds in gross weight may be destroyed without a court order” if the agency meets certain requirements. One requirement is that the agency must “make a determination that it is not reasonably possible to preserve the suspected controlled substance in place, or to relocate it to another location.” Another requirement is that the agency must file an affidavit within 30 days after the destruction “reciting the required information ‘together with information establishing the location of the suspected controlled substance’ and the date and time of its destruction.”

    The Littlefields asserted the Sheriff’s Department did not comply with section 11479. A deputy filed an affidavit that stated the Sheriff’s Department could not preserve the marijuana because it did have sufficient personnel to guard it or adequate storage facilities to store it. The affidavit met the statutory requirements. However, the Littlefields correctly observed that affidavit failed to specify where the marijuana was seized and the precise date and time of its destruction. The court noted there is no question about where the marijuana was seized, and a deputy’s “affidavit shows that it was destroyed before 11:00 the morning after the raid.” The court concluded there could be no possible prejudice to the Littlefields from the lack of more precise or detailed information.

    The Littlefields failed to bring forth evidence of lawful possession of the marijuana. They did not offer the opinion of a qualified medical expert about their medical needs or the amount of marijuana they need for their treatment. Their failure to show they had a legal right to possess the amount of marijuana that was seized is “fatal to their common law, statutory and constitutional claims for interference with their property rights.” Accordingly, the court of appeal affirmed the trial court’s judgment in favor of County.