Pierce County Judge Discovers an Interesting Theft Loophole

I’m unclear how this works, please help me understand:

A Pierce County judge ruled Friday the owners of a Tacoma medical-marijuana dispensary fighting to reclaim pot seized during a police investigation would have to do more than flash their medicinal-cannabis authorization forms to prove they’re qualified to possess the confiscated product.

Superior Court Judge John Hickman did not spell out exactly what Guy Casey and Michael Schaef would have to do to convince him they are allowed to possess marijuana. But he rejected their arguments that their authorization cards should be enough.

If Casey and Schaef aren’t legally entitled to have the marijuana that they were caught with, charge them. Prosecutors didn’t charge Casey and Schaef because their entire case was based upon the testimony of some flaky doofus they eventually realized was unreliable. But to Judge Hickman, none of that matters. Casey and Schaef are guilty until they prove their innocence to him. And even though there’s precedence for cases like this, that may not matter in the great reefer madness metropolis of Tacoma.


  1. 1

    Roger Rabbit spews:

    Describing the seizure and retention of marijuana by law enforcement as “theft” is a bit over the top, Lee. I know you’re writing in the vernacular, but even so, the general legal rule in Washington is that marijuana is contraband, and as such, is “subject to seizure and forfeiture and no property right exists” in it. (RCW 69.50.505(1)) Police not only have authority, but a duty, to seize illegal drugs. Police confiscation of contraband is not “theft” but is a legally mandated exercise of state power.

    The medical marijuana statute creates an exception to the general rule as follows: “If a law enforcement officer determines that marijuana is being possessed lawfully under the medical marijuana law, the officer may document the amount of marijuana, take a representative sample that is large enough to test, but not seize the marijuana. A law enforcement officer or agency shall not be held civilly liable for failure to seize marijuana in this circumstance.” (RCW 69.51A.040(1)) Also, “The lawful possession or manufacture of medical marijuana as authorized by this chapter shall not result in the forfeiture or seizure of any property[.]” (RCW 69.51A.050(1)) Thus, it appears that by the wording of the medical marijuana statute, medical marijuana is NOT contraband and is not subject to seizure or forfeiture.

    However, whether a quantity of marijuana found in a person’s possession is, or is not, medical marijuana which is exempt from seizure and forfeiture is a question of fact, for the trier of fact (in this case the judge sitting without a jury), to determine.

    I would summarize Washington law this way. There’s a presumption that marijuana is contraband, and its possession and use is illegal. There’s a medical exception to this presumption, but the medical marijuana statute does not say having the authorization card creates a presumption of legal possession and use. Therefore, a person claiming the medical exception has the burden of proving that every requirement of the statute for medical possesion and use is satisfied. This means the trier of fact (i.e., a jury or a judge sitting without a jury) can require proof not only of a prescription but also that the person writing the prescription is an authorized medical professional as defined by the statute and that the patient has a medical condition specified by the statute. This could require proof of the medical professional’s credentials and medical records documenting the diagnosis. It might even require expert medical witness testimony that the diagnosis is reasonably supported by diagnostic tests and medical evidence. Exactly how deeply the court might inquire and how much evidence the medical marijuana patient might be required to present would seem to largely fall within the discretion of the trial judge.

    Worse than that, a finding of statutorily authorized medical possession and use would apply only to that specific arrest and/or seizure. It would not be binding on police or prosecutors with respect to any future arrests and/or seizures of the same person. Each bust is a separate potential crime, and the medical marijuana patient would have to establish the affirmative defense each time he was arrested or his medical marijuana was confiscated.

    And that’s only state law. There is no medical marijuana exception under federal law. Possession or use of marijuana remains illegal under federal law, medical prescription or not.

    Are the waters muddy enough yet, or would you like me to play with this some more?

    The fact that the medical marijuana statute characterizes medically authorized possesion or use as an “affirmative defense” is significant.

    This means a person claiming medical authorization has the burden of prmarijuana patient can overcome by establishing that he or she is authorized to possess and use marijuana for medical purposes under the medical marijuana statute. This statute does not say that an authorization card creates a presumption of legality.
    Actually, there are multiple questions of in this case. Let’s start with the authorization card. The medical marijuana statute requires a medical marijuana patient or

  2. 2

    Roger Rabbit spews:

    correction @1: The last two paragraphs, after the phrase “play with this some more,” were supposed to be deleted and are not part of the comment. Disregard that material.

  3. 4

    notme spews:

    C’mon Lee, I’m sure I can find a Seattle based judge who would make a similar rulings. Does that make Seattle a “reefer madness metropolis” too? Tacoma’s elected leaders were at the forefront of the 2011 cannabis legislative activities, have empowered a citizens group to help develop a responisble approach to the mess the Governor has created, and have not shut down any dispensaries. We live in a city with a prohibitionist who serves as the editorial page editor of the newspaper, but if you look at election results, the people of Tacoma pay little attention to the opinions of the newspaper. I understand your frustration, but don’t paint with such a broad brush please.

  4. 5


    That’s fair. I shouldn’t attack a whole city for the insanity of its main newspaper’s ed board. But the police are pretty whacked down there too. :)

  5. 6


    Roger, there have already been several rulings in this state that go against that. In the Gabriel case that I linked to, the judge was very clear that if the police don’t charge the person, they can’t hold the marijuana and have to return it. To hide behind the parts of the law you’ve identified, it’s entirely fair to describe that as legalizing theft.

  6. 7

    Roger Rabbit spews:

    @6 Lee, I’m simply interpreting the statute on its face as a lawyer, and I’m trying to do it objectively.

    Judge Armstrong’s decision in the Gabriel case isn’t binding on other trial-court judges. It isn’t even binding in her own court. Only appellate decisions from the state supreme court or courts of appeals are precedential.

    The easiest way to find precedential cases is by going to a law library that has the annotated version of the Revised Code of Washington, then looking under each section of the statute to see what cases are listed there. You also want to check the pocket part for recent cases after the book was published. Then you have to go read the cases to see what their legal holdings are.

    There probably are criminal defense attorneys with experience in medical marijuana cases who may be up to speed in this area of law. I’m not one of them; I only did a perusal of the statute itself to write this comment, and I’ve only superficially reviewed a sampling of the caselaw, so I don’t comprehensivley know what’s out there in the caselaw. This manual by a private law firm may be of interest: