Can Arizona Cops Seize my Medical Marijuana?

by Rowley Chapman & Barney, Ltd.
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Under Arizona law, police officers are vested with authority to immediately seize illegal drugs, including marijuana. Pursuant to A.R.S. §13-3413(C), seized drugs are then “summarily forfeited” which means that they are never returned to the owner and are destroyed without any kind of due process hearing. The fact that the owner of the drugs is never charged in criminal court is meaningless and does not stop the summary forfeiture process.

Several months ago, Valerie Okun drove into Arizona near Yuma. Ms. Okun’s medical marijuana was discovered during a routine search at a Border Patrol checkpoint. At that time, Ms. Okun was authorized to possess marijuana under California’s Medical Marijuana Program. According to Arizona’s Medical Marijuana Act (“AMMA”), Ms. Okun was a “Visiting Qualifying Patient” and, therefore, could also possess marijuana in Arizona. See. A.R.S. §§ 36-2801(17) and 36-2804.03.

Not only was Ms. Okun’s medical marijuana seized upon its discovery, but Ms. Okun was also charged in Arizona state court for possession of controlled substances. Once Ms. Okun provided proof that she was a Visiting Qualifying Patient, her criminal charges were subsequently dismissed.

After her criminal charges had been dismissed, Ms. Okun asked the judge to order the return of her property (the medical marijuana). The prosecutor did not oppose this request and the judge issued the order. The Yuma County Sheriff, however, was not so cooperative and had to be specifically ordered to return the seized marijuana or be held in contempt of the Superior Court. That contempt order was appealed by the State.

On January 10, 2013, the Arizona Court of Appeals held that an allowable amount of marijuana under the AMMA is NOT contraband and is, therefore, NOT subject to the summary forfeiture provisions of A.R.S. §13-3413(C). See, State v. Okun, 2013 WL 119672 (App. 2013).

So, while the cops may (out of nothing but good old fashioned habit) still seize your medical marijuana, if it is a qualifying amount under A.R.S. §36-2801(1), criminal charges should never be filed or, in the alternative, quickly dismissed. Your legally obtained property should then be immediately returned. If it is not, I am a criminal defense attorney and I can help you get it back, please give me a call at (480) 833-2341.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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