1 1 1 DENNIS ROBERTS State Bar No. 1 0 Grand Avenue, Suite 1 Oakland, California Telephone: () - Facsimile: () - Attorney for Defendant MATTHEW FLEMING SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO THE PEOPLE OF THE ) CASE NO. 0 STATE OF CALIFORNIA, ) ) NOTICE OF MOTION AND ) MOTION FOR THE RETURN Plaintiff, vs. ) ) MATTHEW FLEMING ) Defendant. ) OF PROPERTY ) MEMO OF POINTS AND ) AUTHORITIES ) Date: March, 0 ) Time: :00 A.M. ) Dept: Eleven () TO THE HONORABLE JUDGE OF THE SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, AND TO THE POLICE DEPARTMENT AND CHIEF OF POLICE OF THE CITY AND COUNTY OF SAN FRANCISCO AND TO THE POLICE LEGAL OFFICE: Defendant MATTHEW FLEMING, by and through his counsel of record, herewith moves this Court for the return of medical marijuana seized from him in the above captioned case. This memorandum of points and
1 1 1 authorities is submitted to establish for this Court that not only is it lawful to return the marijuana seized from a medical marijuana patient, but that it is mandated by state law. We have already requested and received the return of approximately $0.00 seized from Mr. FLEMING as well as miscellaneous noncontraband items in Case No. 001. STATEMENT OF FACTS On Feb., 0 MATTHEW FLEMING was arrested by police officers of the City and County of San Francisco for reckless driving in violation of V. C.. A search of his car revealed approximately pounds of marijuana. Mr. FLEMING possessed medical recommendations for himself as well as his mother and was delivering said marijuana to persons for whom he had caregiver certificates. He was subsequently charged with felony marijuana possession for sale and related charges. Counsel provided the District Attorney=s office with the requisite caregiver certificates as well as medical recommendations for a number of people far in excess of the three pounds of marijuana. These people were investigated and spoken to by an Investigator from the District Attorney=s office and when the information proved correct the District Attorney=s office agreed to dismiss all marijuana related charges pursuant to H & S Code Sec.,., et seq. This was done on the record in Department on November, 0 in the above case number. Mr. FLEMING did plead guilty to the V. C. Sec for which he was rightfully charged. Defendant by and through undersigned counsel hereby requests a --
1 1 1 return of the seized marijuana. I. THERE IS NO JURISDICTION TO WITHHOLD NON - CONTRABAND MEDICINE FROM MEDICAL STATUS PERSONS WHO HAVE THE RIGHT TO OBTAIN MEDICINE PURSUANT TO H&S. AND. ET SEQ. THIS MEDICINE HAS BEEN WITHHELD FROM DEFENDANT FROM THE DATE OF SEIZURE AND HAS A DECAYING SHELF LIFE. This motion is supported by the entire court proceedings and all pleadings filed herewith and those presently in the Court=s file, together with any supplements and such other evidence that may be presented at the time of the hearing. Failure to return this medicine has interfered with physician recommended medical treatment. A patient has substantial rights to medical treatment and medicine. Proposition is titled the COMPASSIONATE USE ACT. The voters of San Francisco County passed this overwhelmingly with the highest percentage of favorable votes statewide. Thus the PEOPLE (that is, the voting citizens of this County and the State of California) voted to protect the rights of this defendant and others similarly situated, yet on the other hand, the PEOPLE (the prosecution herein) and the S. F. Police Department through their delegated agents and trustees of authority deny him his medicine. II. PRIOR PROCEEDINGS AND DISMISSAL OF ALL CRIMINAL COUNTS --
1 1 1 Defendant requests that the Court take notice judicial notice that he is no longer a defendant in this action. The medical status of this defendant shall be determined by the Court=s judicial notice of prior pleadings and once said medical status was proven to the satisfaction of the prosecution, the case was dismissed as to this defendant. Therefore MATTHEW FLEMING is a person clearly within the protections of H&S.. Plainly, he is a patient and not a criminal. The additional Marijuana is his physician recommended herbal medicine and that of the people for whom he is a caregiver. There are no criminal proceedings against this defendant as he has been rightfully restored to his recognized and protected patient status. See People v. Mower, C.th, 1 Cal. Rptr.d ( 0//0) in which the California Supreme Court determined that Apossession of marijuana@ for a qualified patient Ais no more criminal.@ This applies to cultivation also. This language used by our California Supreme Court describes the legal status of medical marijuana possessed or cultivated by a duly authorized medical marijuana user. Unfortunately, seven years after the enactment of H&S Code Sec.., police and prosecutors measure these medical cases by the old policies for prosecuting criminal cases. Thus until the police discover that --
1 1 1 no jurisdiction exists (to prosecute noncriminal activity) due to H&S., only then will they stop applying old discretionary standards whether to prosecute a legitimate patient. This conduct on the part of law enforcement must be halted. (1) III. WITHHELD PROPERTY IS NO LONGER EVIDENCE As part of the former criminal arrest and process, Mr. FLEMING had certain property seized and removed by the San Francisco Police Department. Among the items seized and confiscated by said Police Department were, inter alia, his medicine. Over $,000.00 in cash and items of personal property have been returned. The cash was returned by Stipulation in a forfeiture proceeding and the personal property was returned per Order of the Hon. Marla Miller on January, 0. The medicine is lawful for him to obtain, possess and use to treat his medical condition as well as serve as a caregiver for others. This property is no longer necessary to use in any criminal case, as said case was dismissed. This property is no longer evidence for criminal prosecution purposes, as there is no jurisdiction to prosecute MATTHEW FLEMING. This is organic medicine which must be properly stored to preserve its medicinal qualities. Should the passage of time and storage conditions have rendered this medicine ineffective for its legitimate --
1 1 1 purpose Movant herein will return to this Court to seek economic sanctions against the San Francisco Police Department. This marijuana will soon be worthless if it is not already worthless due to its limited shelf life. IV. RELIEF REQUESTED Movant has exhausted all informal attempts to retrieve this medicine. He has no other adequate remedy for the return of this deteriorating medicine and to restore him to his medical treatment. Although this Motion was originally noticed against the Office of the District Attorney, said Office disclaimed any interest in this issue and advised that it is up to the Police Department to defend if it so chooses. Movant requests that this Honorable Court order the following: PROPOSED ORDER (1) The Court order the San Francisco Police Chief, and the San Francisco Police Department to return to Movant his medical property. Should this property not be returned prior to the scheduled hearing that this Court order sanctions in the sum of ONE THOUSAND DOLLARS & NO CENTS ($1,000.00)to be paid to the attorney for Movant as and for attorney fees occasioned by this additional legal work to obtain his rightful property. Said sum must be paid within ten () days of the signing of this Order. The Court finds that the legal fees herein --
1 1 1 requested were occasioned by the failure of the Police and Prosecution to return same without Motion and therefore Movant=s legal expenses were necessary for the return of his marijuana medicine. In the alternative, and only if part (1) of this order is disobeyed, an order to show cause, set for hearing no later than 0 days from today=s date issue for the Chief of Police for the City of San Francisco to show cause, if any he has, as to why this medicine has not been returned. This order requires: (a) the San Francisco Chief of Police, to appear in Court at a time and place to be announced and; (b) bring the property to court together with, all training manuals and policies for officers, on how to handle medical marijuana patients and investigations, and; (c) all internal guidelines and/or policies for the implementation of H&S., the arrest of medical marijuana patients, accepted identification of these patients, accepted quantities of medicine, post arrest investigations and dispositions after proof of qualified medical status, and; (d) policies for the return of ordinary prescription drugs and comparable policies for --
1 1 1 their return of medical marijuana to qualified patients. [if any of the above (b) through (d) exist] The San Francisco Police Department and the Chief of Police are ordered to show cause why they are not liable to MATTHEW FLEMING for eminent domain damages in a sum to be decided by this Court for keeping his property. In no event should any continuance be requested or granted due to the already lengthy delay since MATTHEW FLEMING=S arrest for conduct which does not constitute a crime. Dated: February, 0 DENNIS ROBERTS For his Client MATTHEW FLEMING --
1 1 1 I, Dennis Roberts, declare that: PROOF OF SERVICE I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is DENNIS ROBERTS, APC, 0 Grand Avenue, Oakland, California. On February, 0, I caused to be served the within documents: NOTICE OF MOTION AND MOTION TO RETURN PROPERTY; MEMORANDUM OF POINTS AND AUTHORITIES x by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Oakland, California address(es) as set forth below. by placing the document(s) listed above in a sealed federal express envelope with postage thereon fully prepaid, address(es) set forth below. by causing personal delivery by hand of the document(s) listed above to the person(s) at the address set forth below. X by transmitting via facsimile the above listed document(s) to the fax number(s) set forth below on this date before :00 p.m. San Francisco County District Attorney=s Office Facsimile: (COURTESY COPY ONLY TO RICHARD HECKLER) Chief of Police and Police Department of the City and County of San Francisco by service on the Legal Affairs Office of said Police Department at 0 Bryant Street, Room, San Francisco,. Facsimile: I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited within the U.S. postal service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. --
1 1 1 Executed on February, 0, at Oakland, California. Dennis Roberts --