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YOUR NAME IN CAPS 1234 Your Street Your City, CA 12345 Telephone: (415) 555-5555 Fax: (415) 555-5556 [only if you have one] In Proper Persona YOUR NAME IN CAPS

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF APPLICABLE COUNTY

THE PEOPLE OF THE STATE OF CALIFORNIA,

) ) ) Plaintiff, ) ) v. ) ) YOUR NAME IN CAPS, ) ) Defendant. ) ) __________________________________________)

No. Insert Number NOTICE OF MOTION TO RETURN PROPERTY ILLEGALLY SEIZED; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ORDER Date: Once a hearing is scheduled Time: on the court calendar, insert Place: the details here.

TO THE CLERK OF THE ABOVE-ENTITLED COURT; THE DISTRICT ATTORNEY FOR THE COUNTY OF APPLICABLE COUNTY; AND THE APPLICABLE POLICE DEPARTMENT: PLEASE TAKE NOTICE that at the aforementioned date, time, and place of the aboveentitled court, or as soon thereafter as movant may be heard in the above-entitled court, movant name will move for an order to return property seized from movant’s person and/or residence and/or vehicle on applicable date, by members of the applicable law enforcement agency. The property sought to be returned is as follows: specify items seized.

People v. name, No. insert number Motion for Return of Property

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This motion is made on the grounds that the property seized is being held unreasonably and there is no probable cause to believe that a crime has been committed. This motion is based on California Health and Safety Code § 11362.5, Penal Code §§ 1536, 1538.5 and 1540, Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 38 Cal.Rptr. 576, this notice of motion, on the attached memorandum of points and authorities served and filed herewith, and such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated at oral argument, on all papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion. Dated: ______________ Respectfully submitted,

BY:

_______________________ NAME IN ALL CAPS

People v. name, No. insert number Motion for Return of Property

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MEMORANDUM OF POINTS AND AUTHORITIES I. THIS COURT HAS THE POWER TO ORDER THE RETURN OF PROPERTY THROUGH A SPECIAL PROCEEDING WHETHER OR NOT THERE IS A CRIMINAL ACTION PENDING To ensure the prompt disposition of property seized from citizens by law enforcement, the Penal Code authorizes a simple mechanism for the return of property through a “special proceeding.” See Penal Code §§ 1536, 1538.5 & 1540. In the seminal case of Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 38 Cal.Rptr. 576, the court held that one whose property is being unjustly held may avail herself of the summary procedures authorized by the Penal Code for the return of property, “even as to property not yet offered or received in evidence. . . .” (Ibid. at 365-66; see also People v. Superior Court, Orange County (1972) 28 Cal.App.3d 600, 608, 104 Cal.Rptr. 876 [“We conclude that the fact the trial of the criminal action had been completed did not deprive the superior court of the power to entertain the motion for return of property either pursuant to section 15367 or in the exercise of its inherent power to prevent the abuse of court processes”]). The Gershenhorn court reasoned that the alternative remedies of a civil action for claim and delivery and conversion, while also available, were not equal in expedition or adequacy to the prompt and simple mechanism provided by Penal Code § 1540. (Ibid. at 365). Based on this holding and the court’s inherent power to prevent the abuse of its process, several courts have approved the use of a “special proceeding” independent of the underlying criminal litigation to entertain a motion for the return of seized property. (See Ensoniq Corporation v. Superior Court (1998) 65 Cal.App.4th 1537, 1547; Avelar v. Superior Court (1992) 7 Cal.App.4th 1270, 1276; People v. Superior Court, Orange County (1972) 28 Cal.App.3d 600, 607; Buker v. Superior Court (1972) 25 Cal.App.3d 1085, 1089). Although Penal Code § 1540 is only directed to property seized pursuant to a warrant, its procedures are applicable to warrantless seizures as well because, to hold otherwise, would “reverse the

People v. name, No. insert number Motion for Return of Property

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constitutional order of importance and would induce law enforcement officers to dispense with, rather than to use, the orderly procedure which the Constitution clearly prescribes.” (Gershenhorn, supra, 227 Cal.App.2d at 365). II. THE COMMPASSIONATE USE ACT ENTITLES [NAME OF MOVANT] TO POSSESS THE MEDICAL MARIJUANA AT ISSUE The Compassionate Use Act (Cal. Health & Safety Code § 11362.5 expressly “ensure[s] that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician. . . .” Cal. Health & Safety Code § 11362.5(b)(1). Although this provision does not afford qualified patients complete immunity from search and arrest (People v. Mower (2002) 28 Cal.4th 457, 464 & 469) and police are not required to abandon a lawful search when the subject produces documentations suggesting he may be a qualified patient (People v. Fisher (3d Dist. March 14, 2002) 96 Cal.App.4th 1147, 1149, 117 Cal.Rptr.2d 838), a qualified patient or primary caregiver may seek adjudication of his legal entitlement to possess medical marijuana through a motion for return of property. (See Penal Code §§ 1536, 1538.5 & 1540). If he can establish that his qualifications to possess medical marijuana, which requires a recommendation or approval from a licensed physician and a quantity of marijuana that is reasonably related to his current medical needs (People v. Jones (3d Dist. 2003) 112 Cal.App.4th 341, 347, 4 Cal.Rptr.3d 916, 920; People v. Trippett (1st Dist. 1997) 56 Cal.App.4th 1532, 1550-51, 66 Cal.Rptr.2d 559), there is no probable cause to believe that a crime has been committed. (See Penal Code § 1538.5(a)(1)(A) [authorizing return of property seized without a warrant where the search or seizure was unreasonable]; Penal Code § 1538.5(a)(1)(B)(ii) & (iii) [authorizing return of property seized

People v. name, No. insert number Motion for Return of Property

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pursuant to warrant where property is not that described in warrant or there is no probable cause]). In this case, movant name will present proof of his/her entitlement to cultivate and/or possess marijuana for medical use pursuant to the Compassionate Use Act. Movant name has proof that he is a qualified patient. Attached hereto is (1) a doctor’s recommendation for medical marijuana use issued to the movant by Dr. Practitioner; and (2) a medical marijuana photo ID card qualifying him/her under CA Health and Safety Code section 11362.5. His/Her quantity in grams and/or number of plants of marijuana is no more than is necessary for his personal medical needs. Accordingly, s/he is entitled to the return of the property seized from him/her on applicable date.

Dated: ______________

Respectfully submitted,

BY:

_______________________ NAME IN ALL CAPS

People v. name, No. insert number Motion for Return of Property

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF APPLICABLE COUNTY

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. FULL NAME IN CAPS,

) ) ) ) ) )

No. Applicable Case # ORDER FOR RETURN OF PROPERTY )

) ) Defendant. ) __________________________________________) TO THE APPROPRIATE POLICE DEPARTMENT AND ANY OTHER LAW ENFORCEMENT AGENCY HAVING POSSESSION OF ITEMS LISTED BELOW: GOOD CAUSE HAVING BEEN SHOWN, YOU ARE HEREWITH ORDERED to forthwith return each of the items listed below to INSERT NAME HERE.

Insert items here.

Dated:

_______________________________ JUDGE OF THE SUPERIOR COURT

People v. name, No. insert number Motion for Return of Property

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CERTIFICATE OF SERVICE

I am a resident of the State of California and over the age of eighteen years. My address is 1234 Server’s Street, Server’s City, CA 12345. On applicable date, I served the within document(s):

NOTICE OF MOTION TO RETURN PROPERTY ILLEGALLY SEIZED; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ORDER FOR RETURN OF PROPERTY

via hand delivery upon:

INSERT NAME OF DISTRICT ATTORNEY AND ADDRESS

INSERT NAME OF LEGAL COUNSEL FOR LAW ENFORCEMENT AGENCY THAT SEIZED PROPERTY AND ADDRESS

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on this ___ day of Month, in Server’s City, California.

_____________________ SERVER’S NAME IN CAPS

People v. name, No. insert number Motion for Return of Property

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