Judge To Cops: Return Mans Marijuana

[cobber]

Any final order of a court in any proceeding is generally appealable as a matter of right. Many other orders are appealable with leave on interlocutory appeal.

There doesn't have to be a trial or a conviction or anything like that. There just has to be an appealable order from the court. In this case, it appears there is, specifically the order to return property.

Filing the appeal is easy, you figure out which trial or appellate rule the order falls under and the rule will spell out for you what is necessary to perfect the appeal. Generally you file a notice of appeal and then the formal appeal and supporting brief but the precise process varies from jurisdiction to jurisdiction. It happens every day.

Best,


Joe

Was there a final order per se? The law changed and the substance was no longer illegal under State law. What exactly would the police be appealing in that respect? That the law actually did not change? That appeal would go nowhere, since you would be asking State courts to enforce federal drug laws.

The State courts would deny such an appeal, since they would have to concede in the process of considering the appeal that the federal law might trump the State law, and that the State courts were in violation of the federal code.

 

[HotD]

This sounds oh so familiar.

Only in this case, the seized item is some marijuana. Usually the item is a firearm.

 

[Fargo]

Was there a final order per se? The law changed and the substance was no longer illegal under State law. What exactly would the police be appealing in that respect? That the law actually did not change? That appeal would go nowhere, since you would be asking State courts to enforce federal drug laws.

The State courts would deny such an appeal, since they would have to concede in the process of considering the appeal that the federal law might trump the State law, and that the State courts were in violation of the federal code.

I would think that the order to return property would be an order appealable as a matter of right. Of course, as you point out this is a purely state proceeding, the evidence does not appear to be being held pursuant to a federal charge/investigation. I don't think there is a legal basis under state law for the cops to retain it.

I think the only way they legally can is if they give it to the feds or somehow begin a proceeding under federal jurisdiction. State law simply does not allow them to seize/keep it.

As a side note, speaking of "illegal" orders from a judge and the outrage some here have about this one, I want to know who all here think that somehow growing a plant in your backyard for your own consumption is "commerce among the several states"? I also want to know how simple possession of something is also "commerce among the several states"?

If it isn't, most of the the federal pot law and the subsequent judge's order in Gonzalez v. Raich upholding it are both "illegal"...


Best,


Joe

 

[cobber]

I would think that the order to return property would be an order appealable as a matter of right. Of course, as you point out this is a purely state proceeding, the evidence does not appear to be being held pursuant to a federal charge/investigation. I don't think there is a legal basis under state law for the cops to retain it.

I think the only way they legally can is if they give it to the feds or somehow begin a proceeding under federal jurisdiction. State law simply does not allow them to seize/keep it.

As a side note, speaking of "illegal" orders from a judge and the outrage some here have about this one, I want to know who all here think that somehow growing a plant in your backyard for your own consumption is "commerce between the several states"?

If it isn't, most of the the federal pot law and the subsequent judge's order in Gonzalez v. Raich upholding it are both "illegal"...


Best,


Joe

Maybe the seeds, fertilizer and tools came from other states?

 

[Fargo]

Maybe the seeds, fertilizer and tools came from other states?

So simple possession without a proven transaction can now be "commerce"? Much less "among the several states"? There was no evidence in the Raich case that there was any interstate commerce. Rather it held that doing something that could potentially have some tiny effect on interstate commerce, like growing your own instead of buying it, now falls under federal jurisdiction.

Lets be objective about this, from the framing of the constitution until 1937? NO ONE thought that interstate commerce included purely intrastate transactions and possession. Almost none of the federal regulation we have today was thought to be legal until FDR had enough time for enough justices to die so he could stack the court full of his cronies...

Best,

Joe

 

[Dogdung]

comparing protesters to child molesters? Think I might go burn a flag now

I would start with the molesters first.....but the American flag burners and westboro people are a close second on the scum bag scale. They all deserve a good ass whipping.

 

[cobber]

So simple possession without a proven transaction can now be "commerce"? Much less "among the several states"? There was no evidence in the Raich case that there was any interstate commerce. Rather it held that doing something that could potentially have some tiny effect on interstate commerce, like growing your own instead of buying it, now falls under federal jurisdiction.

Lets be objective about this, from the framing of the constitution until 1937? NO ONE thought that interstate commerce included purely intrastate transactions and possession. Almost none of the federal regulation we have today was thought to be legal until FDR had enough time for enough justices to die so he could stack the court full of his cronies...

Best,

Joe

I think we're in agreement. The ICC should apply to commerce, and not be used to shoehorn in all sorts of federal laws and regs that should be left to the States.

First we need to sweep out Congress and the SCOTUS. But that's a pretty tall order.

Or the States could start pursuing 10th A. claims and restore true federalism.

 

[Fargo]

I think we're in agreement. The ICC should apply to commerce, and not be used to shoehorn in all sorts of federal laws and regs that should be left to the States.

First we need to sweep out Congress and the SCOTUS. But that's a pretty tall order.

Or the States could start pursuing 10th A. claims and restore true federalism.

We are absolutely in agreement.

I would love to see this country return to federalism but unfortunately I don't think that personal and local accountability is what much of the population wants. Rather, they want the all-powerful uncle sugar of the federal government to sweep in and take care of them.

I really think it is true that people generally get exactly the government that they deserve. We have a strong central government because we created it. We created because we decided not to rule ourselves at the personal/local level.

Best,


Joe

 

[Bunnykid68]

I would start with the molesters first.....but the American flag burners and westboro people are a close second on the scum bag scale. They all deserve a good ass whipping.

I burned my last flag yesterday

 

[IndyDave1776]

I would start with the molesters first.....but the American flag burners and westboro people are a close second on the scum bag scale. They all deserve a good ass whipping.

Burning molesters instead of flags sounds reasonable.

 

[Bunnykid68]

Burning molesters instead of flags sounds reasonable.

Flags are easier, they don't fight back and scream. Please do not ask me how I know this, I only burn flags

 

[IndyDave1776]

Flags are easier, they don't fight back and scream. Please do not ask me how I know this, I only burn flags

What's wrong with a little screaming?

 

[Bunnykid68]

What's wrong with a little screaming?

Because once the fire gets past the ankles it is a whole lot of screamin, or so I have heard.

Burn a flag and just hear someone *****in about ya burnin a flag

 

[EM45HP]

I dont get it, this weed was confiscated before this new law took effect. Why should it be returned? I could completely understand if they did this after the law, but before? I recall reading that bill when it passed (due to me being very pro marijuana) and there was a clause on just this, and it clearly asked this same question, if I had weed confiscated before the bill was passed, would I get it back, and it said no. I see the judge being wrong on this one, I understwnd he has more say so than the leo, but I have to agree with the leo on this one.

Well, the marijuana was confiscated before the passing of the bill in December that legalized recreational marijuana use, but Washington has been a medical marijuana state since 1998, meaning that if the doctor recommended (not legally allowed to prescribe) marijuana for the patient, that person would receive a card (similar to a LTCH) to be able to legally purchase and possess up to 24 ounces of marijuana. It was not legal for people without this medical card to possess any marijuana (people carrying without LTCH). The article states that Mr. Robertson provided proof of medical marijuana authorization, which means that as long as he possessed under the 24 ounce limit, the police are required to return his medicine. IANAL, but that's how I see it. Similar to any prescribed medication.

 

[IndyDave1776]

Because once the fire gets past the ankles it is a whole lot of screamin, or so I have heard.

Burn a flag and just hear someone *****in about ya burnin a flag

It builds character! (or at least they aren't likely to do it again)