The Colorado Supreme Court ruled Monday that police don't have to return marijuana to acquitted defendants. (RJ Sangosti, The Denver Post)

Found not guilty? Don’t expect to get your weed back in Colorado

The Colorado Supreme Court on Monday ruled that law enforcement officers cannot be forced to return marijuana to defendants even after they are acquitted of pot crimes because doing so would force officers to be marijuana “distributors” and violate federal law.

The ruling overturns a decision by the Colorado Court of Appeals, which ruled that police officers must return marijuana to defendants who win court decisions related to illegal marijuana possession in Colorado.

Forcing Colorado law enforcement officials to return marijuana to defendants after they win a court case would cause them to break the federal Controlled Substances Act, said the ruling written by Colorado Supreme Court Judge Allison Eid.  Eid has been mentioned as a possible U.S. Supreme Court nominee by President Donald Trump.

“The return provision requires law enforcement officers to return, or distribute, marijuana,” the decision says.  “Thus compliance with the return provision necessarily requires law enforcement officer to violate federal law.”

Three Colorado Supreme Court justices dissented, saying the Controlled Substances Act “immunizes federal and state officers from civil and criminal liability in the circumstances at issue here.”

Monday’s ruling says Colorado’s medical marijuana amendment does not protect officers from acting unlawfully under federal law. The high court ruled that the “return provision” of the Colorado amendment “is preempted and rendered void.”

The ruling stems from a Colorado Springs criminal case. On May 5, 2011, Colorado Springs police arrested Robert Crouse on charges of cultivating and possessing marijuana after seizing drug paraphernalia, 55 marijuana plants and about 2.9 kilograms of marijuana from his home.

He was charged with a felony count of cultivating more than 30 marijuana plants. A jury acquitted Crouse, who asserted that he was a registered medical marijuana patient and that state law authorized his cultivation and possession of marijuana.

Following the trial, Crouse requested that the district court order police to return the seized marijuana plants in conformance with the marijuana amendment that upon acquittal, marijuana “shall be returned immediately,” according to court records. He sought reimbursement of $300,000.

District Attorney Dan May’s office opposed the decision, saying law enforcement would essentially be forcing police to “distribute” marijuana in violation of the federal CSA.

The district court judge and the appeals court ordered officers to return the marijuana to Crouse. The Supreme Court decision said following the Colorado law would “positively conflict” with the Controlled Substances Act.

“The two (laws) cannot consistently stand together,” the Supreme Court ruling says. “This court has held that an act is ‘lawful’ only if it complies with both state and federal law. Here, the officers could not be ‘lawfully engaged’ in law enforcement activities given that such conduct would violate federal law.”

Under the supremacy clause of the U.S. Constitution, the Constitution is the supreme law of the land and Congress has the power to preempt state law, the Colorado Supreme Court ruling says.

But Colorado Supreme Court Judge Richard Gabriel, who wrote a dissenting opinion, said he does not believe it is impossible to comply with both the Controlled Substances Act and the Colorado marijuana amendment.

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