the CMPD is attempting to move the case to federal court because cannabis is prohibited under federal law. [...] The OC Register has not been able to find any type of warrant for the operation, and Chief Sharpnack has refused to provide a copy of the supposed warrant used to carry out the raid.

Change of venue won't be any legal help for a warrantless search.

Change of venue won't be any legal help for a warrantless search.

I'm sure nolu will be along to explain that by moving the case to a Federal court, a warrant isn't necessary.

"Change of venue won't be any legal help for a warrantless search."

The officers walked in and saw marijuana. Marijuana is illegal under federal law. They seized (preserved) the evidence and turned the case over to the feds.

No different than if the cops walked in and saw them printing counterfeit $100 bills. Same thing. Seize the evidence and turn it over to the feds -- counterfeiting being a federal crime.

Change of venue won't be any legal help for a warrantless search.

I'm sure nolu will be along to explain that by moving the case to a Federal court, a warrant isn't necessary.

Yella journalism. Combined with stupid people, it's the gift that keeps on giving.

That wasn't a church, it was a Native American Church of the Oklevueha indians. The use of sacred plants isn't illegal if carried out for spiritual purposes under the care of an ONAC medicine man. And there's more. A church does not pay taxes.

Will Matthew Pappas win a trailblazing victory for potheads? How long does the Native American Church excuse last.

... To be continued.

http://www.ocweekly.com/news/police-raid-native-american-church-in-costa-mesa-over-marijuana-6934929

Police Raid Native American Church In Costa Mesa Over Marijuana

By Mary Carreon
Monday, February 1, 2016 at 7:20 a.m.

With California on the knife edge of legalization, Orange County has become known as the land of brutal dispensary raids and corrupt cops. But last week's raid on the Oklevueha Native American Church (ONAC) in Costa Mesa strayed from the typical cannabis facility invasion. ONAC isn't a medical facility— it's a place to engage in indigenous Native American spiritual ceremonies, which can include the use of sacred plants, such as cannabis, ayahuasca, peyote and psilocybin.

The Costa Mesa Police Department raided the Harbor Blvd. church at 3:30 pm on Wednesday, January 27, arresting five people, who were released later that evening. Police around the country have been invading ONAC church branches since December, leading to a federal lawsuit filed by ONAC attorney Matthew Pappas, who argues that the "Federal Religious Freedom Restoration Act overrides the Controlled Substances Act." In other words, Pappas argues, the use of sacred plants ins't illegal if carried out for spiritual purposes under the care of an ONAC medicine man.

[...]

James also pointed out another valid difference between the two facilities — and another reason surrounding MMJ storefronts would potentially want ONAC shut down — is the fact that, unlike dispensaries, churches don't have to pay taxes. " [ONAC] does better business because they don't have to pay the sales tax for the city," James said. "[The plants are] not medicine, they're considered sacraments," James said. "It's much a different thing to get arrested for doing something that's a part of your religion."

As a result of not having to pay the regular taxes, ONAC can offer goods and services at lower prices than surrounding competitors. It's this specific reason that leads James to believe that it was one of the dispensaries that threw ONAC under the bus.

[snip]

The Costa Mesa Collective Church conducting a worship service:

http://www.latimes.com/local/lanow/la-me-ln-pot-dispensary-lawsuit-20160811-snap-story.html

Although medical marijuana is legal in California, Costa Mesa bars dispensaries from operating within its borders.

City spokesman Tony Dodero said police did have a warrant to inspect the dispensary, which was operating in the 2000 block of Harbor Boulevard.

"I've seen it," Dodero said. "I have a copy of it."

[...]

In the days after the raid, Pappas said the storefront wasn't a dispensary but rather a Native American church authorized to use cannabis and other controlled substances in its ceremonies.

On Friday, Pappas backed away from that claim, saying the dispensary had planned to transition into a church but never made the conversion.

Pappas said he no longer represents the religious practitioners, known as the Oklevueha Native American Church.

Damn. I wanted to see Pappas arguing for the Oklevueha Native American Church about the sanctity of tax-free marijuana at the Supreme Court. That argument looked so promising, I don't know why the yellow goofball non-journalist did not cover it.

Now Pappas is back to just representing his religious patriots by their other name, the Costa Mesa Collective (CMC).

... to be continued

Patient: “Then let me talk to my lawyer.”

Officer: “That’s a pretty libertarian thing to say.”

Being libertarian is illegal? Who knew?

“If a business refuses access, a city can obtain an inspection warrant and seek a judge’s permission to make forcible entry, but investigators can’t seize evidence for a criminal case, said Jen McGrath, another attorney representing Costa Mesa Collective.”

The Orange County Register says they claim entry was made with a warrant.

http://www.ocregister.com/articles/mesa-725216-costa-police.html

Sharpnack said the department obtained an inspection warrant, which is used to enter a premises to investigate whether it is complying with building, fire, zoning and civil codes.

Warrants are issued by a judge and a list of items seized has to be filed with the court, said Jen McGrath, another attorney representing Costa Mesa Collective.

If a business refuses access, a city may have grounds to obtain an inspection warrant and seek a judge’s permission to make forcible entry, but investigators can’t seize evidence for a criminal case, McGrath said. The lawsuit alleges police may have “omitted, misrepresented or withheld material facts” to obtain an inspection warrant.

Entry with an inspection warrant would be lawful. Finding gobs of evidence of unlawful activity in plain sight while inspecting for compliance with building, fire, zoning and civil codes would enable further action. A finding that it was a medical dispensary within the limits of Costa Mesa would make the whole operation illegal. The first purported defense, since abandoned, seems to have been a claim that it was really a church. The explanation that the dispensary had failed to convert to a church, appears to admit that it was an illegal dispensary. The Free Thought Project didn't find it convenient to report that dispensaries are not allowed within the limits of Costa Mesa. They are illegal.

It's another yellow half story. I would like the other half.

... to be continued

Entry with an inspection warrant would be lawful.

Where's the warrant?

The OC Register has not been able to find any type of warrant for the operation, and Chief Sharpnack has refused to provide a copy of the supposed warrant used to carry out the raid.

Where's the warrant?

See #5

http://www.latimes.com/local/lanow/la-me-ln-pot-dispensary-lawsuit-20160811-snap-story.html

Although medical marijuana is legal in California, Costa Mesa bars dispensaries from operating within its borders.

City spokesman Tony Dodero said police did have a warrant to inspect the dispensary, which was operating in the 2000 block of Harbor Boulevard.

"I've seen it," Dodero said. "I have a copy of it."

http://bestbuds.com/costa-mesa-dispensary-raid/

Costa Mesa Raid That Put Dispensary Workers In Jail May Have Been Illegal

1 month ago By: Zach Smith

An attorney claims Costa Mesa police did not have a warrant when they raided a dispensary and put five employees in jail.

On January 27, officers stormed into medical dispensary Costa Mesa Collective with guns drawn and forced employees and customers to get on the ground.

Security footage shows the officers shouting upon entry:

“Search warrant, police department. Hands up!”

After removing a video recorder, the officers searched the dispensary, seized items from safes and arrested five people, both employees and customers, for suspicion of possession with intent to distribute marijuana.

The arrested individuals were in jail for four days before being released since it turned out no charges had actually been filed, according to the Orange County Register.

Susan Schroeder, chief of staff for the Orange County District Attorney’s Office, said the case had been referred back to police because it required further investigation.

Medical marijuana dispensaries are illegal in Costa Mesa, so it’s not clear why Costa Mesa Collective was even operating at the time.

But Long Beach lawyer Matthew Pappas believes the raid should not have been conducted since it is unclear whether the officers had a warrant.

He told the OC Register:

“These guys were doing this to shut down a business without due process because they don’t like it. They became judge, jury and executioner.”

Costa Mesa Police Chief Rob Sharpnack is “100 percent certain” the officers had a “code enforcement inspection warrant” but Pappas insists no such warrant was presented to Costa Mesa Collective operators during the raid.

Pappas said on August 4 he plans to file a lawsuit this week challenging the officers’ legal authority to burst through the dispensary’s door and seize items.

He says he is yet to see this supposed warrant along with an inventory of seized items, which Costa Mesa Collective operators should have received as well.

[snip]

... to be continued

Color me skeptical.

If this raid was done "by the book" as you claim, why destroy or disable the surveillance cameras?

Seems to be S.O.P. to destroy any evidence of their wrongdoing.

Costa Mesa Police Sued Over Warrentless Raid of Costa Mesa Collective

This lawsuit comes about a year after the infamous Sky High raid in Santa Ana, where Santa Ana Police were caught on camera using force with people, apparently eating edibles, stealing products and throwing darts.

Much like the cops in the Sky High raid, the CMPD was also caught breaking surveillance cameras and looking for other hidden cameras to destroy. "If the cops were doing everything legally and within compliance of the law, there would be nothing to hide," says McGrath. "They wouldn't have gone for the cameras."

Wait - the cops in the Sky High raid were shown stealing and eating pot-laced edibles by the cameras (the ones not destroyed that is).

Why aren't they being charged for that?

never mind - in nolu chan "cops are gods" Bizarro World, they can do any fucking thing they want.

Oh - the police chief says he has a warrant?

Color me skeptical.

Be skeptical all you want. Law enforcement seized contraband. Marijuana dispensaries are unlawful in Costa Mesa. The whopper about being a church didn't go far.

The petition was filed in Superior Court of the State of California, County of Orange, Central Justice Center, and is CMC, a group of patients collectively operating pursuant to Ca. Health & Safety Code § 11362.775 v. City of Costa Mesa; Costa Mesa Police Department; and Does 1 to 10 inclusive. It was filed in State court on 9 August 2016.

It states it is PETITION FOR WRIT OF MANDAMUS (CCP § 1085); VIOLATIONS OF THE STATE AND FEDERAL CONSTITUTIONS (42 U.S.C. § 1983).

It states two causes of action:

FIRST CAUSE OF ACTION
(42 U.S.C. § 1983. 14th AMD., DUE PROCESS)

SECOND CAUSE OF ACTION
(42 U.S.C. § 1983, 4th AND 14th AMDS.)

The two causes of action cite Federal law, and Federal law only.

to be continued...

Color me skeptical.

My goodness how I despise that hackneyed, faggot phrase.

Please, for the love of Christ, stop using it.

The NOTICE OF REMOVAL states at ¶5:

5. This Court has original jurisdiction over Plaintiffs’ federal civil rights claims (second and third causes of action alleged in the Complaint) pursuant to 28 U.S.C. §1331 and removal jurisdiction under 28 U.S.C. §1441 because those claims arise under 42 U.S.C. § 1983. See Compl. at caption and at page 7, line 6 and page 8, line 2. This Court has supplemental jurisdiction over Plaintiffs’ state law claim pursuant to 28 U.S.C. §1367.

6. Defendants City of Costa Mesa and Costa Mesa Police Department join in the removal of this action, as evidenced by their joint representation by the undersigned. There are no other defendants named in this action.

Concurrent with the filing of this Notice of Removal, the Defendants are filing in the state court a Notice to State Court and Adverse Party of Removal to Federal Court, and serving the same on Plaintiffs’ counsel. A true and correct copy of that Notice, with proof of service thereof, is attached hereto as Exhibit “E.”

Dated: September 12, 2016
COTA COLE LLP

By: /s/ Daniel S. Roberts
Dennis M. Cota
Daniel S. Roberts
Attorneys for Respondents
CITY OF COSTA MESA and COSTA
MESA POLICE DEPARTMENT

That references the second and third causes of action. I find only a First and Second cause of action in the Petition, as indicated above.

http://law.justia.com/codes/us/2014/title-28/part-iv/chapter-89/sec.-1441/

2014 US Code
Title 28 - Judiciary and Judicial Procedure
Part IV - Jurisdiction and Venue
Chapter 89 - District Courts; Removal of Cases From State Courts
Sec. 1441 - Removal of civil actions

28 U.S.C. § 1441 (2014)

§1441. Removal of civil actions

(a) Generally.—Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Removal Based on Diversity of Citizenship.—(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Joinder of Federal Law Claims and State Law Claims.—(1) If a civil action includes—

(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and

(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute,

the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).

(2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).

(d) Actions Against Foreign States.—Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e) Multiparty, Multiforum Jurisdiction.—(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if—

(A) the action could have been brought in a United States district court under section 1369 of this title; or

(B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter.

The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court.

(2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) 1 has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be retained for the determination of damages.

(3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination shall not be subject to further review by appeal or otherwise.

(4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise.

(5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title.

(6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum.

(f) Derivative Removal Jurisdiction.—The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

(June 25, 1948, ch. 646, 62 Stat. 937; Pub. L. 94–583, §6, Oct. 21, 1976, 90 Stat. 2898; Pub. L. 99–336, §3(a), June 19, 1986, 100 Stat. 637; Pub. L. 100–702, title X, §1016(a), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 101–650, title III, §312, Dec. 1, 1990, 104 Stat. 5114; Pub. L. 102–198, §4, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 107–273, div. C, title I, §11020(b)(3), Nov. 2, 2002, 116 Stat. 1827; Pub. L. 112–63, title I, §103(a), Dec. 7, 2011, 125 Stat. 759.)

http://law.justia.com/codes/us/2014/title-28/part-iv/chapter-85/sec.-1331/

2014 US Code
Title 28 - Judiciary and Judicial Procedure
Part IV - Jurisdiction and Venue
Chapter 85 - District Courts; Jurisdiction
Sec. 1331 - Federal question

28 U.S.C. § 1331 (2014)

§1331. Federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

(June 25, 1948, ch. 646, 62 Stat. 930; Pub. L. 85–554, §1, July 25, 1958, 72 Stat. 415; Pub. L. 94–574, §2, Oct. 21, 1976, 90 Stat. 2721; Pub. L. 96–486, §2(a), Dec. 1, 1980, 94 Stat. 2369.)

http://law.justia.com/codes/us/2014/title-28/part-iv/chapter-85/sec.-1367/

2014 US Code
Title 28 - Judiciary and Judicial Procedure
Part IV - Jurisdiction and Venue
Chapter 85 - District Courts; Jurisdiction
Sec. 1367 - Supplemental jurisdiction

8 U.S.C. § 1367 (2014)

§1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

(e) As used in this section, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

(Added Pub. L. 101–650, title III, §310(a), Dec. 1, 1990, 104 Stat. 5113.)

The same attorney from CMC v. Costa Mesa, Matthew Pappas, very recently represented a different marijuana dispensary with the following result at the Court of Appeals of the State of California.

A marijuana dispensary in Costa Mesa is illegal.

A marijuana dispensary in Costa Mesa is illegal.

A marijuana dispensary in Costa Mesa is illegal.

Filed 7/12/16

Certified for publication 8/4/16 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE KIND AND COMPASSIONATE et al.,

Plaintiffs and Appellants,

v.

CITY OF LONG BEACH et al.,

Defendants and Respondents.

B258806

(Los Angeles County
Super. Ct. No. BC 483024)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. John Shepard Wiley, Jr., Judge. Affirmed.

Matthew Pappas; Rallo Law Firm, Arthur J. Travieso and Amy L. Bingham for Plaintiffs and Appellants.

Charles Parkin, City Attorney, and Theodore B. Zinger, Deputy City Attorney, for Defendants and Respondents. _______________________________________

SUMMARY

This is an appeal from a judgment dismissing a complaint after the trial court sustained a demurrer. The court granted leave to amend, but plaintiffs never did.

Plaintiffs are two medical cannabis "collectives/dispensaries" (The Kind and Compassionate, and Final Cut) and three medical cannabis patients, who are members of The Kind and Compassionate collective. Plaintiffs alleged 11 causes of action against the City of Long Beach (city) and/or three of its employees or officers (Eric Sund, Robert Shannon and Robert Foster), all arising from the city's enforcement of municipal ordinances that first regulated and then entirely prohibited the operation of medical marijuana dispensaries within the city's borders. The principal claim in the complaint is that defendants have discriminated against plaintiffs by enacting and enforcing these ordinances, which plaintiffs assert are facially discriminatory and have a disparate and adverse impact on persons with disabilities. Plaintiffs also assert various constitutional violations and tort claims.

We affirm the trial court's judgment dismissing the complaint.

FACTS AND LEGAL BACKGROUND

Before we turn to the facts alleged in the complaint, we briefly note several established principles applicable to medical marijuana dispensaries or collectives.

First, federal law prohibits the possession, distribution and manufacture of marijuana, finding it to be "a drug with 'no currently accepted medical use in treatment in the United States' [citation], and there is no medical necessity exception to prosecution and conviction under the federal act [citation]." (City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 738-739 (Riverside).)

Second, California law also imposes sanctions on marijuana possession, cultivation, and related activities. In California, however, voters and the Legislature have adopted limited exceptions to those sanctions where marijuana is possessed, cultivated, distributed and transported for medical purposes. (Riverside, supra, 56 Cal.4th at p. 739.) These statutes are the Compassionate Use Act (CUA; Health & Saf. Code, § 11362.5), adopted by the voters in 1996, and the Medical Marijuana Program (MMP; § 11362.7 et seq.), enacted in 2004. "Among other things, these statutes exempt the 'collective[] or cooperative[] . . . cultiva[tion]' of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit those activities." (Riverside, at p. 737.)

Third, the CUA and the MMP "have no effect on the federal enforceability of the [Controlled Substances Act (21 U.S.C § 801 et seq.)] in California." (Riverside, supra, 56 Cal.4th at p. 740.) The CUA and the MMP have a "narrow reach" (Riverside, at p. 745), providing only "a limited immunity from specified state marijuana laws" (id. at p. 748).

Fourth, "the CUA and the MMP do not expressly or impliedly preempt [a city's] zoning provisions declaring a medical marijuana dispensary . . . to be a prohibited use, and a public nuisance, anywhere within the city limits." (Riverside, supra, 56 Cal.4th at p. 752; id. at p. 754, fn. 8 ["the CUA and the MMP, by their substantive terms, grant limited exemptions from certain state criminal and nuisance laws, but they do not expressly or impliedly restrict the authority of local jurisdictions to decide whether local land may be used to operate medical marijuana facilities"].)

Fifth, the Ninth Circuit has held that "medical marijuana use is not protected by the ADA [(Americans with Disabilities Act (42 U.S.C. § 12101 et seq.))]," because the ADA "defines 'illegal drug use' by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs' medical marijuana use." (James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397.)

With this background in mind, we turn to the complaint.

[...]

a. The discrimination claims

The bulk of plaintiffs' 43-page opening brief is devoted to its assertions that the city ordinances regulating, and then banning medical marijuana dispensaries discriminate against persons with disabilities. This claim has no merit, and the trial court properly sustained the city's demurrer to plaintiffs' causes of action for violations of the DPA, the Unruh Act, the ADA, and the Rehabilitation Act.

Our conclusion is controlled by now well-established principles: "[The CUA and the MMP] remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a 'right' of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries." (Riverside, supra, 56 Cal.4th at pp. 762-763; see also Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1048 ["[i]t is too late in the day . . . to argue that the CUA and MMP[] grant a statutory right to use and/or collectively cultivate medical marijuana"]; Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534, 1553 (Conejo Wellness Center) [neither the CUA nor the MMP creates "a state right to cultivate, distribute, or otherwise obtain marijuana collectively, and thereafter to possess and use it, for medical purposes"].)

Plaintiffs argue at great length that Riverside did not involve discrimination claims, and they "disagree" with the principle that the CUA and the MMP do not confer a right to use and distribute marijuana. Our Supreme Court in Riverside definitively held that neither the CUA nor the MMP grant a " 'right' of convenient access to marijuana for medicinal use . . . ." (Riverside, supra, 56 Cal.4th at p. 762.) That being so, municipal regulation of, and bans on, medical marijuana dispensaries cannot operate to discriminate against persons with disabilities, because those persons have no right of convenient access to medicinal marijuana in the first place.

In addition to that fundamental point, neither the DPA nor the Unruh Act has any application to plaintiffs' desire to use, sell, or have convenient access to medicinal marijuana. The DPA gives individuals with disabilities "the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places." (Civ. Code, § 54, subd. (a).) The DPA does not give them the right to convenient access to marijuana. The Unruh Act entitles all persons, including those with disabilities, to "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) It does not entitle anyone to convenient access to medicinal marijuana.

[...]

ii. Section 1983

Section 1983 provides redress for the deprivation, under color of law, of any rights, privileges or immunities secured by the Constitution and laws. The complaint alleges the enforcement of the city's marijuana ordinances deprived class members of federal constitutional rights (Fourth, Fifth and 14th Amendments) and "rights . . . secured by the California constitution under color of an invalid law."

Plaintiffs never had a vested property right to operate a medical marijuana dispensary in the city. The city asserted in the trial court and on appeal that the city's zoning code is drafted in a permissive fashion, so that any use not enumerated in the municipal code is presumptively prohibited. (Cf. Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1562 [the plaintiff's operation of a collective medical marijuana dispensary "was always unlawful: first, as a use not expressly permitted by the [municipal code], and later, as a use expressly banned by the [municipal code]"; the plaintiff was "therefore not entitled to the constitutional protections afforded property owners or lessees engaged in lawful existing nonconforming uses"]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433 ["where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible"].)

Plaintiffs made no effort in the trial court or on appeal to explain why this principle does not or should not apply in this case. Nor do they dispute the city's assertion that it never issued a permit to plaintiffs to operate a medical marijuana dispensary in the city. (Cf. Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791 ["It has long been the rule in this state . . . that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit." (Italics added.)].)

In the absence of factual allegations that would establish a vested right, at any time, to operate a marijuana dispensary, plaintiffs cannot state a claim under section 1983 for deprivation of vested property rights.

[...]

DISPOSITION

The judgment is affirmed. The city shall recover its costs on appeal.

GRIMES, J.

WE CONCUR:

RUBIN, Acting P. J.

FLIER, J.

http://www.michbar.org/file/opinions/appeals/2011/121511/50420.pdf

STATE OF MICHIGAN

COURT OF APPEALS

In re Forfeiture of $9,430 United States Currency.

No. 298479
Wayne Circuit Court
LC No. 09-015761-CF

UNPUBLISHED
December 15, 2011

PEOPLE OF MICHIGAN,
Plaintiff-Appellee,

v.

$9,430 UNITED STATES CURRENCY,
Defendant,

and

PERCY HEAD,
Claimant-Appellant.

Before: O’ ONNELL , P.J., and MURRAY and DONOFRIO , JJ. PER CURIAM

Claimant, Percy Head, appeals as of right the circuit court’s judgment of forfeiture of $9,430 in United States Currency, pursuant to MCL 333.7521. We affirm. On May 12, 2009, Michigan State Trooper Jason Nemecek pulled claimant’s vehicle over on I-94 because claimant was following the car ahead of him too closely and had an air freshener hanging from his rearview mirror, possibly obstructing his vision. When Trooper Nemecek approached the car, he smelled burned marijuana. Claimant said there was nothing illegal in the car and gave Trooper Nemecek consent to search it. Trooper Nemecek first ran LEIN checks on claimant and the passenger. The passenger was in violation of parole and Trooper Nemecek took him into custody. Claimant’s LEIN check showed he was driving with a suspended license, so Trooper Nemecek arrested claimant. Trooper Nemecek searched the car and saw marijuana stems and seeds on the floor in the front seat and in the back seat. A narcotics canine searched the car but did not give a positive indication for drugs inside the vehicle. Trooper Nemecek then searched claimant pursuant to arrest and found a large amount of money in his pocket. Claimant said it was about $3,000, but it was actually $9,430. At the police station, Trooper Nemecek tested the money and the same narcotics dog alerted to the presence of narcotics on the currency.

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Trooper Nemecek decided to forfeit the money and a forfeiture trial was held, at which the trial court ruled that forfeiture was proper.

On appeal, claimant asserts the trial court erred in concluding the prosecution established by a preponderance of the evidence that the money should be forfeited. In a forfeiture proceeding, review of the trial court’s decision is for clear error. In re Forfeiture of $180,975, 478 Mich 444, 450; 734 NW2d 489 (2007). “A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made.” Id. “[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C); see also In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995).

Under MCL 333.7521(1)(f), the following property is subject to forfeiture: Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article that is traceable to an exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article or that is used or intended to be used to facilitate any violation of this article including, but not limited to, money, negotiable instruments, or securities.

While forfeiture is generally disfavored in the law, Michigan’s forfeiture provisions are part of the Public Health Code and, therefore, should be liberally construed to promote the health, safety, and welfare of the citizens of the state. Forfeiture of $19,250, 209 Mich App at 27. “However, the requirements of the forfeiture provisions may be construed strictly to ensure that the due process rights of claimants are protected.” Id.

A forfeiture proceeding against property is in rem, and the subject of the proceeding is the property itself, rather than the owner or possessor of the property, who is the claimant. Forfeiture of $180,975, 478 Mich at 450. In an in rem forfeiture proceeding, the party seeking forfeiture has the burden of proof by a preponderance of the evidence. Id. at 458. “Proof by a preponderance of the evidence requires that the factfinder believe that the evidence supporting the existence of the contested fact outweighs the evidence supporting its nonexistence.” Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 89; 367 NW2d 1 (1985).

To forfeit an asset because it was used, or intended to be used, to effect a violation of the controlled substances act, there must be a substantial connection between the asset and the underlying criminal activity. In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). The asset need not be traced to a specific sale of drugs, only to drug trafficking generally. In re Forfeiture of $1,159,420, 194 Mich App 134, 147; 486 NW2d 326 (1992). Property with only an “incidental or fortuitous connection” to the underlying criminal activity is not subject to forfeiture. Id. at 146. Whether a claimant can legitimately account for the possession of the asset is a factor considered in making this determination. See id. at 147. However, it is the prosecution’s burden to show claimant cannot so account. Id.; Forfeiture of $180,975, 478 Mich at 458 n 19.

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Here, there was ample evidence in favor of the trial court’s forfeiture decision, including that Trooper Nemecek smelled burned marijuana in the car, Trooper Nemecek saw marijuana stems and seeds in the car, claimant significantly underrepresented the amount of currency he possessed, the currency was wrapped in rubber-bands, claimant was driving a vehicle that did not belong to him, claimant said he was self-employed, the narcotics canine alerted to the presence of narcotics on claimant’s currency, and claimant had a prior misdemeanor drug conviction. This Court has held that “drug profile” evidence is not particularly probative where there is no other convincing evidence indicating a claimant was linked to drug trafficking. In re Forfeiture of $275, 227 Mich App 462, 468; 576 NW2d 431 (1998), rev’d on other grounds 457 Mich 864 (1998). Claimant’s use of a third-party vehicle, his self-employed status, his misstatement about the amount of currency he possessed, and the way the money was packaged constituted evidence showing at least part of a “drug profile.” However, there is also other persuasive evidence linking claimant to the sale or purchase of drugs, including the smell of marijuana in the car, the seeds and stems in the case seen by Trooper Nemecek, and the narcotics on the currency. Therefore, the “drug profile” evidence here is probative and was properly given weight by the trial court.

Claimant is correct when he argues that some evidence could have supported a negative finding by the trial court. In particular, the evidence showing that the narcotics canine did not alert to the presence of any narcotics in the vehicle (not even to the stems and seeds Trooper Nemecek saw), the stems and seeds were never collected for evidence, and claimant presented legitimate sources for the currency in his possession, including a $2,000 bank account withdrawal on January 21, 2009, a $5,000 withdrawal on April 21, 2009, a statement showing an account balance of $14,650 on April 10, 2009, and a receipt for a vehicle sale on April 8, 2009, for $16,298.30.[1]

However, “regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). Here, the trial court specifically found that Trooper Nemecek did see the stems and seeds in claimant’s car, that claimant misstated the amount of currency he had on him, and that the canine gave a positive indication for narcotics on claimant’s currency. Claimant does not refute the positive canine indication, and the trial judge was free to accept Trooper Nemecek’s testimony, and to discredit claimant’s testimony, including his supposedly legitimate sources of income. See Forfeiture of $19,250, 209 Mich App at 29; Forfeiture of $1,159,420, 194 Mich App at 147. In rigorously applying the clearly erroneous standard, we recognize the trial judge had the benefit of evaluating the witnesses before him and judging the credibility of the testimony, and, therefore,

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[1] The prosecution attempted to discredit these sources by pointing out that one of the bank transactions took place several weeks before claimant was pulled over, the other occurred several months before, and the vehicle sale happened over a month earlier. We also note that bank withdrawals and account balances do not actually show the legitimacy of the source of funds, merely that claimant had access to them, and that failure to collect evidence does not necessarily mean it did not exist.

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we cannot conclude that the court’s finding that the prosecution established by a preponderance of the evidence that the money was, or was intended to be, used in exchange for a controlled substance, was clearly erroneous.

Affirmed.

/s/ Peter D. O’Connell
/s/ Christopher M. Murray
/s/ Pat M. Donofrio