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Wednesday, February 08, 2017

Must Police Return Wrongfully Seized Marijuana?

Imagine the following scenario. P is a local police officer who stops D for speeding. In the course of a consensual search of D’s car, P finds a small bag of marijuana. State law bans the simple possession of marijuana by most people, so P seizes the drug. However, D subsequently convinces a judge that he was allowed by state law to possess the marijuana (say, because he’s a qualified patient under the state’s medical marijuana law). Following the judge’s ruling, D asks P to return the marijuana. Must P do so?

Many states explicitly require the police to return marijuana they have wrongfully (as a matter of state law) seized from individuals like D. But the police sometimes refuse to obey such requirements. The police claim that the act of returning marijuana constitutes a drug distribution offense under 21 U.S.C. Section 841, since federal law defines “distribution” as any transfer of a banned substance. Hence, a state law requiring police to return marijuana poses a direct conflict with and is thereby preempted by federal law.

Ah, but there is a twist. 21 U.S.C. section 885(d) expressly immunizes state police from “civil or criminal liability” under federal drug laws if they are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” The provision was likely adopted to shield police from liability for participating in sting operations. But marijuana users have claimed that Section 885(d) also applies to other scenarios, including the return of marijuana, and thereby resolves any conflict between state and federal law.

Who is right? There are at least four possible ways of resolving these disputes, none of which is entirely satisfactory:
  1. Adopt a purposivist interpretation of Section 885(d) and side with the police. Just last month, for example, the Colorado Supreme Court found that Section 885(d) would not immunize state police for returning seized marijuana; thus, state police could ignore a state law that required them to do so. Colorado v. Crouse. This interpretation is arguably consistent with the purpose of Section 885(d), but it is difficult to reconcile with the provision’s text. The Crouse court, for example, suggested that a police officer would not be “lawfully engaged in the enforcement” of state law if she violated federal law—i.e., by distributing marijuana. But the same could be said of the undercover police officer who sells marijuana during a sting operation.
  2. Adopt a literal interpretation of Section 885(d) and side with users. In one case, for example, a California appellate court found that Section 885(d) plainly shielded state police from federal criminal liability for returning marijuana to a medical marijuana patient. City of Garden Grove v. Kha. The Kha court reasoned that Section 885(d) “makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties. . . . There can be little question the [City] police would be acting pursuant to their official duties, were they to comply with the trial court’s order to return [the citizen’s] marijuana to him.” This interpretation arguably comports with the text of Section 885(d) (and prevents state agents from undermining state marijuana reforms). But it difficult to reconcile with the text of another provision of the Controlled Substances Act. 21 U.S.C. Section 903 expressly preempts any state law that poses a “positive conflict” with the CSA. To be sure, Congress might not care if state police return marijuana to the same person from whom they seized it. But interpreted literally, Section 885(d) might block preemption of other, more controversial state actions. Imagine, for example, that a state orders its agents to produce and sell marijuana. Indeed, in the early 2000s, the City of Oakland, California, thought it could immunize a local medical marijuana dispensary by deputizing its owner (Ed Rosenthal) and ordering him to supply the needs of the City's medical marijuana patients. When Rosenthal was later prosecuted by the federal government, the district court rejected his assertion of Section 885(d) immunity, though in so doing, it (like the Crouse court) had to rely on a questionable reading of Section 885(d). United States v. Rosenthal.
  3. Find that the anti-commandeering rule empowers state agents to return marijuana. The idea is that if Congress can’t force state police to seize marijuana in the first instance, it also shouldn’t be allowed to force them to retain the drug if they no longer wish to hold it. To be sure, Congress can preempt some state actions that violate federal law – say, growing marijuana at a state-run farm. But there has to be some limit to preemption if the anti-commandeering rule is to do any work. Otherwise, as I’ve argued elsewhere (p. 1446-49), Congress could prevent states from voting to repeal their marijuana bans, releasing prisoners held on marijuana charges, etc. (both of which entail actions of some sort). So as long as state police do no more than restore the proverbial state of nature (say, by returning marijuana to its original owner), Congress may not be able to stop them. (I sketched this argument in the article above (p. 1459-60).) If a court followed this approach, it could sidestep the 885(d) issue and users would win. 
  4. Find that the police lack standing to challenge state duties as preempted. The likelihood that any police officer would actually be prosecuted for returning marijuana is almost zero (because of DOJ enforcement memoranda, congressional spending restrictions, etc.). In other words, the threatened injury to the police is too speculative to satisfy federal standing requirements. If a court followed this approach, it again wouldn’t have to reach the merits of the Section 885(d) issue and users would presumably win. However, even if this standing argument would work in federal court, it wouldn’t necessarily work in state court (where most of these claims have been raised ). That’s because state courts don’t necessarily apply the same restrictive standing rules as their federal counterparts.

As I noted above, none of these approaches is entirely satisfactory to me. But I’m interested to hear what others think – and whether there might be another solution to the puzzle.

Posted by Robert Mikos on February 8, 2017 at 11:10 AM in Constitutional thoughts, Criminal Law | Permalink


Section 885(d) wouldn’t help you, as that provision only applies to government officials and not private citizens. Some state courts have crafted an “innocent possession” defense to cover situations like this – for example, to shield a high school principal who seizes drugs from a student. But federal courts are less inclined to craft such defenses, preferring instead to rely on the good sense of prosecutors and juries to avoid unjust results under what are incredibly broad drug prohibition statutes.

Posted by: Robert Mikos | Feb 9, 2017 11:07:57 PM

If a delivery guy knocks on my door and, after holding the package in my hand for a minute, I, suspecting the package contains marijuana, refuse the delivery and have it returned to the sender, do I violate federal law? If not, what is my defense? I would think it is something along (3) in the article: I was never properly in possession of the contraband and therefore never at liberty to control its disposition, and therefore cannot "distribute" it in any legal sense of the term.

Posted by: M. Rad. | Feb 9, 2017 9:35:18 PM

Robert, thanks for the clarification. That makes sense.

Posted by: Adam | Feb 9, 2017 12:25:02 PM

Adam -- you're correct that IF the federal Due Process Clause recognized a property interest in marijuana, that would resolve the dispute. Congress couldn't force states to deprive citizens of their Due Process rights, so the police officer would be free to return the marijuana without fear of federal criminal liability. But the federal Due Process Clause DOESN'T recognize a constitutionally protected property interest in marijuana, at least so long as the federal marijuana ban remains on the books. Whatever rights users have in marijuana are created exclusively by state law, and thus remain subject to federal override.

Posted by: Robert Mikos | Feb 9, 2017 11:12:50 AM

IANAL, and wonder, is your #3 strong enough? How is a failure to return not depriving D of his property under the 5th Amendment?

Posted by: Adam | Feb 9, 2017 10:38:47 AM

Trick question. Both P and D belong to the local PD.

Posted by: YesterdayIKilledAMammoth | Feb 8, 2017 4:55:39 PM

Although I'm sympathetic to Jimbino's point, I'm not sure the equity / vagueness argument necessarily favors users here. That’s because both the user and the police are being exposed to a government sanction – seizure for the former and potential criminal prosecution for the latter.

Posted by: Robert Mikos | Feb 8, 2017 4:20:58 PM

Apply the rule that the enforcement of the statutes is so confused and arbitrary as to deny the user justice. User wins and gets his legal dope back.

Posted by: Jimbino | Feb 8, 2017 3:05:11 PM

Fair point on the proves-too-much aspect of an impossibility-conflict analysis. While I still think I'm right as a conceptual matter that impossibility preemption generally turns on conduct rather than liability, the fact that it'd render the immunity provision a nullity is a problem since the question is ultimately one of statutory interpretation.

The solution, I think, is to construe the immunity provision as if it's a substantive exemption, notwithstanding its literal terms, in light of the canon against construing statutes to be nullities. If treated as a substantive exemption, then the impossibility-conflict disappears.

But, as you suggest, I still think that an obstacle-preemption analysis would work.

Posted by: Hash | Feb 8, 2017 2:35:53 PM

Per Jordan’s comment, I should have been more precise – Section 885(d) was likely adopted to shield police ** and other state agents ** from liability for participating in sting operations ** and like actions **. For example, in United States v. Cortes-Caban, the court noted that Section 885(d) “protects accepted law enforcement tactics such as sting or reverse-sting operations in which officers handle and transfer drugs, the transfer of suspected drugs to DEA laboratory agents for analysis, or to a clerk of court in the course of presenting evidence at trial. . .” But even accepting that Section 885(d) applies to more actions than just selling drugs in a sting operation, I'm not sure this changes the analysis. After all, all of the actions Jordan (and the Cortes-Caban court) mentions seem more like a sting operation than either a) returning marijuana or b) growing and selling marijuana.

Posted by: Robert Mikos | Feb 8, 2017 12:37:26 PM

"The provision was likely adopted to shield police from liability for participating in sting operations." I think that's probably incorrect. If §885(d) didn't exist, then the subchapter in which it's located would arguably prohibit a great deal of non-sting enforcement of drug laws. The subchapter in which it's located includes prohibitions on possessing drugs, distributing drugs (defined broadly as "to deliver" a drug), maintaining premises for the purpose of distributing drugs, transporting drugs in certain areas, investing income derived from violating the subchapter, etc. Ordinary law enforcement related to drugs would violate whole swaths of that subchapter. For example, a police officer takes physical possession of the drugs found during a bust, gives them to another police officer, who puts them in the drug lockup at the police station, from which they're trucked past a truck stop to a central state facility that's near a school, where another officer takes possession of the drugs and stores them, and then that officer goes out and invests her salary from that week in her sister's small business. Without Section 885(d), I've just listed at least a half-dozen prohibited actions under that subchapter.

Posted by: Jordan | Feb 8, 2017 12:22:30 PM

I like Hash’s thinking. Indeed, I’ve made a similar in the article noted in the post (p. 1458-59). But I don’t think this move quite works.
Hash suggests that a law requiring the return of marijuana is preempted because it “requires * conduct * that is * prohibited * by federal law.” That’s a straightforward direct (impossibility) preemption argument. From this argument, it also follows that 885(d) would not grant immunity for returning marijuana, because one cannot be lawfully engaged in the enforcement of a preempted law.
The problem is that this interpretation arguably negates all immunity pursuant to Section 885(d). After all, Section 885(d) is only necessary when someone violates federal law. For example, imagine that P’s captain orders him to go undercover and sell marijuana as part of a sting operation. It seems plain that Section 885(d) was meant to shield P from federal liability for his actions. But since he is engaged in “* conduct * that is * prohibited * by federal law*” – i.e., distributing marijuana, the state law authorizing the sting operation would presumably be preempted on Hash's analysis – and P couldn’t invoke Section 885(d) immunity.
Maybe a court could differentiate the two actions using a more nuanced obstacle preemption analysis. Namely, it might find that the return of marijuana (arguably) undermines Congressional purposes, whereas the sting operation does not. But I don’t think a court could distinguish the two actions under a direct (impossibility) preemption analysis, without running into this problem of sacrificing Section 885(d) at the altar of Section 903.

Posted by: Robert Mikos | Feb 8, 2017 12:19:21 PM

Adopt a literal interpretation of 885(d) and side with the police: the state law is preempted by 841 *regardless of whether* 885(d) grants immunity, because it still purports to require conduct that is prohibited by 841, *even if* 885(d) immunizes the cop for violating 841's prohibition.

Conflict preemption doesn't depend on whether the cop would face *liability* for violating federal law, but rather on whether state law requires *conduct* that is *prohibited* by federal law. Imagine if federal law prohibited certain conduct but imposed no liability whatsoever for violation of the prohibition -- i.e., a substantive mandate with no remedial enforcement mechanism. State law purporting to require the conduct would still be preempted, because it would still be requiring an individual to violate federal law, even if there were no federal-law consequences to the violation.

And, for related reasons, 885(d) does not grant immunity in these circumstances by its literal terms. Namely, this would not be lawful enforcement of state law because the state law is preempted and thus no law at all.

Posted by: Hash | Feb 8, 2017 11:47:13 AM

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