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HomeMy WebLinkAboutDA corresp re Marijuana destruction protocol OFFICE OF THE DISTRICT ATTORNEY County of San Luis Obispo I ,' • Gerald T Shea 1 •�/. ,�[•I, District Attorney .f[. a•I- Daniel A Hilford ' Assistant Distnct Attorney Y (14-, ' „„,;<.•';_ Timothy S Covello Rte'-^ r���=�r� Chief Deputy District Attorney MAR Jerret C Gran M 2 0 202 Chief Deputy District Attorney — March 16, 2012 Jerel Haley Chief of Police Atascadero Police Department 5505 El Camino Real Atascadero, CA 93422 re District Attorneys Policy/Protocol Destruction Seized Medical Marijuana Dear Chief Haley: Our office has developed written policies with the Sheriff's Office and with the San Luis Obispo Police Department regarding destruction of seized marijuana These policies were developed primarily regarding requests for destruction of marijuana with respect to possible later requests for release by court order to persons who could have possessed marijuana pursuant to the Compassionate Use Act/Proposition 215. Copies of those documents are attached for your reference As you may already know, a court order is required in order to destroy seized controlled substances, including marijuana, as well as any items seized by way of search warrant Upon seizing marijuana, including claimed medical marijuana, the above referenced agencies provide a document to the persons from whom it is seized which explains the procedure and time limits for such persons to seek return of claimed medical marijuana. Since there may be financial liability for destruction of claimed medical marijuana there must be sufficient time parameters in place to allow for its return prior to destruction. The County Counsel and the City Attorney of San Luis Obispo assisted the above respective agencies in this regard. Likewise, you may wish to seek similar advice from your City Attorney. County Courthouse Annex• 1035 Palm Street•49' Floor •San Luis Obispo, California 93408 •Telephone(805)781-5800 Haley, Jerel re: District Attorney's Policy/Protocol Destruction Seized Medical Marijuana March 16, 2012 Page -2- It is our intention to create a similar destruction policy with each of the cities within the county after the respective City Attorneys have been consulted I would like to meet with you or your designee in order to establish a written policy for destruction of seized marijuana Certainly, your City Attorney may attend such a meeting Please contact me at 781-5810 or by email (dhilfordaco slo ca.us) if you have any questions and to set up a meeting date and time Very truly yours. Gerald T Shea District Attor By. Daniel A. Hilford Assistant District Attorney c: Gerald T. Shea, District Attorney Encl DAH:kah SAN LUIS OBISPO POLICE DEPARTMENT AND DISTRICT ATTORNEY'S REQUEST FOR COURT ORDERS FOR THE DESTRUCTION OF SEIZED MARIJUANA IN THE CUSTODY OF THE SAN LUIS OBISPO POLICE DEPARTMENT The primary issue involves requests for destruction of marijuana with respect to possible later requests for release to persons who could have possessed marijuana at the time of seizure, pursuant to the Compassionate Use Act (CUA)/Medical Marijuana Initiative, also known as Proposition 215 The following procedures will be followed by the San Luis Obispo Police Department in order to facilitate disposition and disposal of seized marijuana I) Marijuana seized by search warrant: a) Penal Code §1536 requires a court order for disposition of any evidence seized by search warrant (Health & Safety Code § 11473 5 requires a court order for destruction of controlled substances whereas § 11479 requires an affidavit be filed with the court within 30 days of destruction.) I) In cases where there has been a criminal case filing (l e as shown in LS'), written requests for orders of destruction should be sent to the District Attorney's Office ii) In each case involving a search warrant where a court order for destruction of marijuana is requested, each request must be made separately. b) In cases of a criminal filing, prior to requesting an order for destruction of marijuana seized under a search warrant: i) Determine whether there was a conviction of a marijuana related charge. (1) Marijuana cannot be returned to a defendant convicted of a marijuana related charge regardless whether the person possessed a Proposition 215 card or a doctor's recommendation (Health & Safety Code sections 11357, 11358, 11359, 11360, 11361, 11361.5, 11361 7, 11361.8, 11362, & 11362 5 ) li) In multiple defendant cases, determine from LS whether other charged/co- defendants in the same case were convicted of a marijuana related charge, ' LS is the current case management system where San Luis Obispo Police Department personnel can research criminal filings If LS is replaced, the replacement system should be used 3/1/2012 Marijuana Destruction Page 2 of 6 whether charges were dismissed in their entirety as to those other defendants (1) If these other co-defendant(s) possessed a valid Prop 215 card or doctor's recommendation at the time of the seizure and were not convicted of a marijuana related charge, those persons must obtain a court order for return of marijuana 2 ill) In either single or multiple defendant cases, determine through LS whether there was a conviction of a marijuana charge and determine whether a Notice of Appeal was filed (1) If so, do not request an order of destruction until the appeal has been resolved c) In filed cases which are dismissed in their entirety, or where marijuana charges are dismissed, or where there was a conviction only of non-marijuana charges, or where there was an acquittal of all charges, the following applies: i) Time limits are pursuant to notice given at time of seizure (i e 90 days after adjudication of the case). Determine if written notice regarding disposition of seized property was provided at time of seizure. (1) Property receipts provided at time of seizure explain time limits and procedures (2) If notice cannot be confirmed, notice shall be mailed to the last known address of the defendant (3)All claims must be filed within time limit provided on notice (i.e 90 days) iii) Requests for destruction are to be submitted as soon as practical after expiration of statutory time limits d) All requests for orders of destruction in filed cases which are sent to the District Attorney's Office must contain the San Luis Obispo Police Department case number, D.A. case number, court case number, and description of items sought to be destroyed. 2 City of Garden Grove v Superior Court (Kha) (2007) 157 Cal App 4'b 355, 371-373, 351-382 Marijuana Destruction Page 3 of 6 e) For marijuana not claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted i) that none of the marijuana requested to be destroyed is believed to be "medical marijuana"; (1) that proper notice has been given to persons from whom marijuana was seized; (2) that the 90 day time limit since adjudication has passed; (3) that neither a Notice of Appeal was filed nor an appeal is pending, (4) that no court order was served on the San Luis Obispo Police Department for return of the listed seized marijuana, and, (5) that the San Luis Obispo Police Department has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. f) For marijuana claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted i) that the marijuana requested to be destroyed is believed to be "medical marijuana", (1) that proper notice has been given to persons from whom marijuana was seized, (2) that the 90 day time limit since adjudication has passed, (3) the marijuana appears unclaimed, (4) that no court order was served on the San Luis Obispo Police Department for return of the listed seized marijuana; (5) that no Notice of Appeal was filed, and, (6) that the San Luis Obispo Police Department has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. Marijuana Destruction Page 4 of 6 g) In cases where there is a final rejection and in cases which were not submitted for filing, requests for orders of destruction should be sent to the San Luis Obispo City Attorney's Office II) Marijuana seized without a search warrant: a) Health & Safety Code § 11473.5 requires a court order for destruction of controlled substances whereas § 11479 requires an affidavit be filed with the court within 30 days of destruction i) In cases where there has been a criminal case filing (i.e as shown in LS), written requests for orders of destruction should be sent to the District Attorney's Office. (1) Multiple cases may be combined in one request for destruction b) In cases of a criminal filing, prior to requesting an order for destruction of marijuana: i) Determine whether there was a conviction of a marijuana-related charge. (1) Marijuana cannot be returned to a defendant convicted of a marijuana related charge regardless whether the person possessed a Proposition 215 card or a doctor's recommendation (Health & Safety Code sections 11357, 11357, 11359, 11360, 11361, 11361 5, 11361.7, 11361 8, 11362, & 11362.5.) ii) In multiple defendant cases, determine from LS whether other charged co- defendants in the same case were convicted of a marijuana related charge, or whether charges were dismissed in their entirety as to those other defendants (1) If these other co-defendant(s) possessed a valid Prop 215 card or doctor's recommendation at the time of the seizure and were not convicted of a marijuana related charge, those persons must obtain a court order for return of marijuana 3 City of Garden Grove v Superior Court(Kha) (2007) 157 Cal App 4'" 355, 371-373, 381-382 Marihuana Destruction Page 5 of 6 m) In either single or multiple defendant cases determine through LS whether there was a conviction of a marijuana charge and determine whether a Notice of Appeal was filed. (1) If so, do not request an order of destruction until the appeal has been resolved c) In filed cases which are dismissed in their entirety, or where marijuana charges are dismissed, or where there was a conviction only of non-marijuana charges, or where there was an acquittal of all charges, the following applies 0 Time limits are pursuant to notice given at time of seizure Q e 90 days after adjudication of the case) ii) Determine if written notice regarding disposition of seized property was provided at time of seizure. (1) Property receipts provided at time of seizure explain time limits and procedures (2) If notice cannot be confirmed, notice shall be mailed to the last known address of the defendant. (3) All claims must be filed within time limit provided on notice (i.e. 90 days) iii) Requests for destruction are to be submitted as soon as practical after expiration of statutory time limits d) All requests for orders of destruction in filed cases which are sent to the District Attorney's Office must contain the San Luis Obispo Police Department case number, D.A case number, court case number, and description of items sought to be destroyed e) For marijuana not claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted: i) that none of the marijuana requested to be destroyed is believed to be "medical marijuana"; (1) that proper notice has been given to persons from whom marijuana was seized, Marijuana destruction Page 6 of 6 (2) that the 90 day time limit since adjudication has passed, (3) that neither a Notice of Appeal was filed nor an appeal is pending, (4) that no court order was served on the San Luis Obispo Police Department for return of the listed seized marijuana, and, (5) that the San Luis Obispo Police Department has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge f) For marijuana claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted i) that the marijuana requested to be destroyed is believed to be "medical marijuana", (1) that proper notice has been given to persons from whom marijuana was seized, (2) that the 90 day time limit since adjudication has passed; (3) that the marijuana appears unclaimed, (4) that no court order was served on the San Luis Obispo Police Department for return of the listed seized marijuana; (5) that no Notice of Appeal was filed; and, (6) that the San Luis Obispo Police Department has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge g) In cases where there is a final rejection from the District Attorney's Office and in cases which were not submitted for filing, requests for orders of destruction should be sent to the San Luis Obispo City Attorney's Office. SHERIFF'S OFFICE AND DISTRICT ATTORNEY'S REQUEST FOR COURT ORDERS FOR THE DESTRUCTION OF SEIZED MARIJUANA IN THE CUSTODY OF THE SHERIFF'S OFFICE The primary issue involves requests for destruction of marijuana with respect to possible later requests for release to persons who could have possessed marijuana at the time of seizure, pursuant to the Compassionate Use Act (CUA)/Medical Marijuana Initiative, also known as Proposition 215. The Sheriff's Office will mark evidence containers if the contents are potentially or known to be medical marijuana The following procedures will be followed by the Sheriffs Office in order to facilitate disposition and disposal of seized marijuana I) Marijuana seized by search warrant: a) Penal Code §1536 requires a court order for disposition of any evidence seized by search warrant (Health & Safety Code § 11473 5 requires a court order for destruction of controlled substances whereas § 11479 requires an affidavit be filed with the court within 30 days of destruction.) i) In cases where there has been a criminal case filing (i e as shown in LS'), written requests for orders of destruction should be sent to the District Attorney's Office. ii) In each case involving a search warrant where a court order for destruction of marijuana is requested, each request must be made separately. b) In cases of a criminal filing, prior to requesting an order for destruction of marijuana seized under a search warrant: i) Determine whether there was a conviction of a marijuana related charge (1) Marijuana cannot be returned to a defendant convicted of a marijuana related charge regardless whether the person possessed a Proposition 215 card or a doctor's recommendation ii) In multiple defendant cases, determine from LS whether other charged co- defendants in the same case were convicted of a marijuana related charge, or whether charges were dismissed in their entirety as to those other defendants LS is the current case management system where Sheriffs Office personnel can research criminal filings If LS is replaced, the replacement system should be used 3/15/2012 Marijuana Destruction Page 2 of 6 (1) If these other co-defendant(s) possessed a valid Prop 215 card or doctor's recommendation at the time of the seizure and were not convicted of a marijuana related charge, those persons must obtain a court order for return of marijuana.2 In) In either single or multiple defendant cases, determine through LS whether there was a conviction of a marijuana charge and determine whether a Notice of Appeal was filed (1) If so, do not request an order of destruction until the appeal has been resolved c) In filed cases which are dismissed in their entirety, or where marijuana charges are dismissed, or where there was a conviction only of non-marijuana charges, or where there was an acquittal of all charges, the following applies i) Time limits are pursuant to notice given at time of seizure (I e. 90 days after adjudication of the case). n) Determine if written notice regarding disposition of seized property was provided at time of seizure. (1) Property receipts provided at time of seizure explain time limits and procedures. (2) If notice cannot be confirmed, notice shall be mailed to the last known address of the defendant. (3) All claims must be filed within time limit provided on notice (i.e 90 days). Requests for destruction are to be submitted as soon as practical after expiration of statutory time limits d) All requests for orders of destruction in filed cases which are sent to the District Attorney's Office must contain the Sheriffs Office case number, D A case number, court case number, and description of items sought to be destroyed e) For marijuana not claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorneys Office that appropriate research documenting the following has been conducted. 'Cliv of Garden Grove v. Superior Court(Kha) (2007) 157 Cal App 4th 355, 371-373, 381-382 Marijuana Destruction Page 3 of 6 i) that none of the marijuana requested to be destroyed is believed to be "medical marijuana", (1) that proper notice has been given to persons from whom marijuana was seized, (2) that the 90 day time limit since adjudication has passed; (3) that neither a Notice of Appeal was filed nor an appeal is pending, (4) that no court order was served on the Sheriffs Office for return of the listed seized marijuana, and, (5) that the Sheriff's Office has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. f) For marijuana claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted i) that the marijuana requested to be destroyed is believed to be "medical marijuana"; (1) that proper notice has been given to persons from whom marijuana was seized, (2) that the 90 day time limit since adjudication has passed; (3) that no one has requested the marijuana be returned and appears unclaimed; (4) that no court order was served on the Sheriffs Office for return of the listed seized marijuana, (5) that no Notice of Appeal was filed, and, (6) that the Sheriff's Office has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. g) In cases where there is a final rejection and in cases which were not submitted for filing, requests for orders of destruction should be sent to the County Counsel's Office. Marijuana Destruction Page 4 of 6 II) Marijuana seized without a search warrant: a) Health & Safety Code § 11473.5 requires a court order for destruction of controlled substances whereas § 11479 requires an affidavit be filed with the court within 30 days of destruction i) In cases where there has been a criminal case filing (i e. as shown in LS), written requests for orders of destruction should be sent to the District Attorneys Office. (1) Multiple cases may be combined in one request for destruction b) In cases of a criminal filing, prior to requesting an order for destruction of marijuana i) Determine whether there was a conviction of a marijuana-related charge. (1) Marijuana cannot be returned to a defendant convicted of a marijuana related charge regardless whether the person possessed a Proposition 215 card or a doctor's recommendation. ii) In multiple defendant cases, determine from LS whether other charged co- defendants in the same case were convicted of a marijuana related charge, or whether charges were dismissed in their entirety as to those other defendants. (1) If these other co-defendant(s) possessed a valid Prop. 215 card or doctor's recommendation at the time of the seizure and were not convicted of a marijuana related charge, those persons must obtain a court order for return of marijuana 3 iii) In either single or multiple defendant cases determine through LS whether there was a conviction of a marijuana charge and determine whether a Notice of Appeal was filed. (1) If so, do not request an order of destruction until the appeal has been resolved City of Garden Grove v Superior Court(Kha) (2007) 157 Cal App 4th 355, 371-373, 381-382 Marijuana Destruction Page 5 of 6 c) In filed cases which are dismissed in their entirety, or where marijuana charges are dismissed, or where there was a conviction only of non-marijuana charges, or where there was an acquittal of all charges, the following applies i) Time limits are pursuant to notice given at time of seizure (re 90 days after adjudication of the case) ii) Determine if written notice regarding disposition of seized property was provided at time of seizure. (1) Property receipts provided at time of seizure explain time limits and procedures (2) If notice cannot be confirmed, notice shall be mailed to the last known address of the defendant (3) All claims must be filed within time limit provided on notice (i.e. 90 days) iii) Requests for destruction are to be submitted as soon as practical after expiration of statutory time limits. d) All requests for orders of destruction in filed cases which are sent to the District Attorney's Office must contain the Sheriffs Office case number, D A. case number, court case number, and description of items sought to be destroyed. e) For marijuana not claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorney's Office that appropriate research documenting the following has been conducted: i) that none of the marijuana requested to be destroyed is believed to be "medical marijuana"; (1) that proper notice has been given to persons from whom marijuana was seized; (2) that the 90 day time limit since adjudication has passed; (3) that neither a Notice of Appeal was filed nor an appeal is pending, (4) that no court order was served on the Sheriff's Office for return of the listed seized marijuana; and, (5) that the Sheriffs Office has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. r Marijuana Destruction Page 6 of 6 f) For marijuana claimed as medical, attach a declaration to all requests for orders of destruction that are sent to the District Attorneys Office that appropriate research documenting the following has been conducted: i) that the marijuana requested to be destroyed is believed to be "medical marijuana"; (1) that proper notice has been given to persons from whom marijuana was seized, (2) that the 90 day time limit since adjudication has passed, (3) that no one has requested the marijuana be returned and appears unclaimed; (4) that no court order was served on the Sheriff's Office for return of the listed seized marijuana; (5) that no Notice of Appeal was filed; and, (6) that the Sheriff's Office has researched whether the seized marijuana requested to be destroyed relates to a defendant convicted of a marijuana related charge. g) In cases where there is a final rejection from the District Attorney's Office and in cases which were not submitted for filing, requests for orders of destruction should be sent to the County Counsel's Office