1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DENNIS ROBERTS
State Bar No. 36651 370 Grand Avenue, Suite 1 Oakland, California 94610 Telephone: (510) 465-6363 Facsimile: (510) 465-7375 Attorney for Defendant MATTHEW FLEMING
___________________________
SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO
THE PEOPLE OF THE ) CASE NO. 2202904
STATE OF CALIFORNIA, )
) NOTICE OF MOTION AND ) MOTION FOR THE RETURN
Plaintiff, ) OF PROPERTY
) MEMO OF POINTS AND ) AUTHORITIES
vs. )
)
MATTHEW FLEMING )
) Date: March 8, 2006
Defendant. ) Time: 9:00 A.M.
) Dept: Eleven (11)
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:
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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 $6360.00 seized from Mr. FLEMING as well as miscellaneous
non-contraband items in Case No. 050131586.
STATEMENT OF FACTS
On Feb. 2, 2005 MATTHEW FLEMING was arrested by police officers of the City and County of San Francisco for reckless driving in violation of V. C. 23103. A search of his car revealed approximately 3 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.
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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 11362.5 AND .7 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 215 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.
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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 11362.5. 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, 28 C.4th 457, 122 Cal. Rptr.2d 326( 07/18/2002) 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. 11362.5, police and
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no jurisdiction exists (to prosecute non-criminal activity) due to H&S 11362.5, 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 $6,000.00 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 17, 2006. 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
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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 (10) days of the
signing of this Order.
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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 30 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 11362.5, 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
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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 7, 2006
__________________ DENNIS ROBERTS
For his Client MATTHEW FLEMING
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Dennis Roberts, declare that:
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, 370 Grand Avenue, Oakland, California 94610. On February 8, 2006, 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 5:00 p.m.
San Francisco County District Attorney=s Office
Facsimile: 415 575 8815 (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 850 Bryant Street, Room 575, San Francisco, 94103.
Facsimile: 415 553 1999
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.
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