SACRAMENTO — Kyle Kelly had just paid $45 for an eighth of an ounce of pot at a Sacramento medical marijuana dispensary when a California Highway Patrol officer pulled him over on a routine traffic stop.
The officer noticed Kelly had a copy of the West Coast Leaf – "The Cannabis Community Newspaper of Record" – in the car and asked the 25-year-old Sacramento man if he had any weed on him.
Kelly admitted that he did. But he didn't have his doctor's certificate of approval as well, so the CHP officer confiscated the pot and wrote him a ticket for misdemeanor marijuana possession.
When Kelly showed up in court a couple months later with his medical marijuana papers in hand, a Sacramento Superior Court judge dismissed the case. Kelly, however, still wanted his dope back, and when the CHP failed to return him his eighth, he went to court again – this time as a plaintiff.
On Tuesday, Kelly filed for an order of return to get his marijuana returned to him. He is believed to be one of the first medical marijuana users to take the legal route in the local Sacramento courthouse to get his marijuana back.
"It's more of a principle," Kelly said, about his going through the court hassle of getting a few buds returned to his possession – after he's already gone back to the dispensary at least 10 times since and bought some more. "It's an I-know-my-rights kind of deal. You don't want to say like you're getting taken advantage of, but sometimes that's just what it is. Sometimes, when it comes to law enforcement, we get kind of scared."
Kelly said he uses medical marijuana to deal with post-traumatic stress disorder and the pain in his foot that resulted from getting shot Oct. 31, 2008, by members of the street gang known as the Monk Mobb.
A friend of Kelly's named Patrick Javan Razaghzadeh was killed in the shooting that took place in the La Riviera-Folsom Boulevard area. Seven suspects have since been arrested and charged with Razaghzadeh's murder and the attempted murder of Kelly. An eighth suspect also has been charged as an accessory.
Kelly said he had smoked pot even before the shooting but has since gone the legal route as the best way to take care of his pain.
Chris Conrad, the editor of the El Cerrito-based newspaper that attracted the CHP officer's attention, said it is becoming increasingly popular for marijuana consumers to use the courts to get back the product that they obtained legally under California's compassionate use laws.
Conrad said that in general the medical marijuana users are winning when they go through the courts to get their pot back.
"It's going on all over the place," Conrad said. "There's one guy who got three pounds back after they took it away from him at the airport in Sacramento. I think it's very important and it clearly establishes that marijuana is legal for people who have a doctor's authorization. It's not contraband and police should stop treating it like it is."
The West Coast Leaf editor said medical marijuana users have pushed harder to get their confiscated goods returned to them as a result of a December 2008 action by the U.S. Supreme Court. In that decision, the panel refused to hear a California case where trial and appellate courts had ordered the city of Garden Grove to return 8 grams of marijuana to Felix Kha, who had his dope confiscated by police even though he had a doctor's prescription.
CHP spokeswoman Fran Clader said the officers who confiscated Kelly's marijuana acted within the agency's policy.
"Our policy states that persons who are involved with marijuana and who do not possess a valid state or local medical marijuana ID card can be charged with a misdemeanor," Clader said.
She said the procedure for them to get it returned if it's legal "is to file a motion with the court seeking an order of return."
Kelly said the CHP officers who stopped him Sept. 18 at 11th and J streets seemed nice enough and told him his situation appeared legitimate. He said they told him if he brought his certificate to their Southside Park office, he'd probably be able to get his eighth-ounce returned.
But when he showed up with the proper paperwork, as well as information that showed his possession case had been dismissed by Judge Allen H. Sumner on Nov. 19, he said he found out about the order-of-return policy.
In the city of Sacramento, police spokeswoman Officer Laura Peck said, the department has put the word out to patrol officers to lay off the legal users.
"Typically, when we come across something, it's not going to be confiscated," Peck said Thursday. "It's going to be left there and photographed. It's a relatively new policy we're adopting, in conjunction with the District Attorney's Office, on medical marijuana issues."