Court says SF police have to return a man’s seized marijuana

A court ruled that San Francisco police are to return a small amount of marijuana seized during an arrest of a suspect. A court ruled that San Francisco police are to return a small amount of marijuana seized during an arrest of a suspect. Photo: Marilyn Nieves / Getty Image Photo: Marilyn Nieves / Getty Image Image 1 of / 24 Caption Close Court says SF police have to return a man’s seized marijuana 1 / 24 Back to Gallery

Anyone over 21 who possesses an ounce or less of marijuana for personal use in California is entitled to keep it, under a 2016 ballot initiative. But if police seize the marijuana during an arrest, could they be prosecuted under federal law for illegal distribution if they gave it back?

A judge in San Francisco apparently thought so in April, when he refused to order San Francisco police officers to return three-quarters of an ounce of pot they had seized from Robert T. Smith’s backpack while arresting him on other charges in January. But a three-judge panel of the Superior Court’s Appellate Division said the officers would be immune from prosecution, under both federal and state law, so they have to return Smith’s marijuana.

Federal law prohibits both possession and distribution of marijuana, but shields police from liability for handling the drug while “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances,” the panel said in a ruling that was posted Monday as a precedent for future cases. Those laws include the California statute that requires police to return marijuana that can be possessed legally in the state, the court said.

The judges also noted that a state appeals court had ruled in 2007 that since medical marijuana was legal in California, police could legally return medicinal pot to its owner. The same logic applies to marijuana that is now legal for personal use, the panel said.

“The San Francisco Police Department wold be returning the ... marijuana pursuant to a court order, and not acting as drug ‘pushers’ the (federal law) was designed to combat,” the panel said.

Lara Bazelon, a University of San Francisco law professor who represented Smith, said the ruling was an “important victory in (a) seemingly small case.”

The ruling reverses a decision in April by Robert Foley, a retired Santa Clara County judge temporarily assigned to the San Francisco Court. Smith was initially charged with disturbing the peace and making criminal threats, but those charges were later dismissed.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter:@BobEgelko