El Paso County District Court No. 11CR1680 Honorable Tim J. Schutz, Judge
Daniel H. May, District Attorney, Terry A. Sample, Deputy District Attorney, Margaret Vellar, Chief Deputy District Attorney, Doyle Baker, Senior Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.
Charles T. Houghton, P.C., Charles T. Houghton, Colorado Springs, Colorado; Black and Graham, LLC, Clifton Black, Colorado Springs, Colorado, for Defendant-Appellee.
Christopher J. Melcher, City Attorney, W. Erik Lamphere, Assistant City Attorney, Colorado Springs, Colorado, for Amicus Curiae City of Colorado Springs.
¶ 1 In 2000, Colorado's voters amended our Constitution to allow persons "suffering from debilitating medical conditions" to use "medical marijuana." Colo. Const. art. XVIII, § 14 (MM Amendment). This appeal concerns only section 14(2)(e). As relevant here, it requires the return of marijuana seized from a medical marijuana patient to the patient if, as occurred here, a jury acquits the patient of state criminal drug charges arising from the seized marijuana (return provision). The prosecution contends that the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., preempts the return provision. It relies on only "obstacle preemption, " a subset of the conflict preemption doctrine.
¶ 2 We reject this contention, for three reasons. First, the "positive conflict" phrase in the CSA's preemption section, 21 U.S.C. § 903, precludes applying obstacle preemption. Second, even if obstacle preemption applies, CSA section 885(d), which prevents federal prosecution of "any duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law . . . relating to controlled substances, " would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision. Third, and making the same assumption, the recipient patient's involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana.
¶ 3 Therefore, we affirm the trial court's order requiring police officers to return marijuana and marijuana plants to defendant, Robert Clyde Crouse.
¶ 4 Colorado Springs police officers searched Crouse's home. They seized marijuana and marijuana plants. The prosecution charged him with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between five and one hundred pounds of marijuana with the intent to distribute it.
¶ 5 At trial, Crouse raised only an affirmative defense that MM Amendment section (2)(a) expressly authorizes his possession — he was a medical marijuana patient, and the marijuana that he possessed was medically necessary to treat his condition. The jury acquitted him of both charges.
¶ 6 Relying on MM Amendment section (2)(e), Crouse moved the trial court to order the police to return the seized marijuana plants and marijuana. The prosecution opposed the motion on two grounds: first, if the police returned the marijuana to him, they would violate the CSA by distributing marijuana to Crouse, and he would violate the CSA by receiving the marijuana; and, second, for these reasons, the CSA preempts this part of the MM Amendment.
¶ 7 The trial court ordered the police to return the marijuana and the marijuana plants to Crouse. The prosecution unsuccessfully sought a stay pending appeal from both the trial court and this court. Then the police returned the marijuana and the marijuana plants.
¶ 8 The prosecution appeals the trial court's order, again arguing obstacle preemption because police officers' returning marijuana to a patient would violate the CSA. It does not separately argue preemption because a patient's receipt of such marijuana would also violate the CSA.
II. This Appeal Is Not Moot
¶ 9 Initially, we reject Crouse's contention that this appeal is moot.
¶ 10 Section 16-12-102(1), C.R.S. 2013, authorizes the prosecution to "appeal any decision of a court in a criminal case upon any question of law." C.A.R. 4(b)(2) states that, when the prosecution's appeal is authorized by statute, as it is here, this court is required to "issue a written decision answering the issues in the case and shall not dismiss the appeal as without precedential value."
¶ 11 But this court lacks jurisdiction over such an appeal unless the ruling or order that is the subject of the appeal was entered in a case that "produced a final judgment." People v. Gabriesheski, 262 P.3d 653, 657 (Colo. 2011). An acquittal or a dismissal of the charges in a case results in a final judgment. Id. And a final judgment "ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceedings." People v. Guatney, 214 P.3d 1049, 1050-51 (Colo. 2009) ("[P]rosecution appeals . . . are subject to the final judgment requirement of C.A.R. 1.").
¶ 12 After the jury acquitted Crouse, he sought return of the marijuana and marijuana plants. The trial court had jurisdiction to rule on that motion. See People v. Hargrave, 179 P.3d 226, 228 (Colo.App. 2007); People v. Rautenkranz, 641 P.2d 317, 318 (Colo.App. 1982) ("'We hold that the district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the contested property . . . regardless and independently of the validity or invalidity of the underlying search and seizure.'" (quoting United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976)).
¶ 13 We conclude that the order granting Crouse's motion was a final judgment subject to appeal under section 16-12-102(1) because the motion was litigated and the order was entered after Crouse had been acquitted, which resolved all the charges in the case. Once the court granted the motion, nothing remained for the court to do to determine the rights of defendant and the prosecution concerning the motion. See Guatney, 214 P.3d at 1050-51.
¶ 14 Accordingly, we further conclude that this appeal is not moot.
A. Standard of Review
¶ 15 Whether a federal statute preempts state law is an issue of federal law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214 (1985). This issue is reviewed de novo. Kohn v. Burlington N. & Santa Fe R.R., 77 P.3d 809, 811 (Colo.App. 2003).
B. The Effect of the Supremacy Clause
¶ 16 The "Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. This language is known as the Supremacy Clause. Under it, state laws that "interfere with, or are contrary to, the laws of Congress" are preempted. Brubaker v. Bd. of Cnty. Comm'rs, 652 P.2d 1050, 1054 (Colo. 1982) (internal quotation marks omitted).
C. As an Exercise of Colorado's Police Power, Section (2)(e) of the MM Amendment Is Presumably Not Preempted by the CSA
¶ 17 Preemption analysis begins with the "assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746 (1981). The assumption strengthens if the federal law involves a "field which the [s]tates have traditionally occupied." Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947) This is so because federal law generally does not supersede "the historic police powers" of a state, unless Congress has expressed a "clear and manifest purpose" to do so Id; see also United States v Oakland Cannabis Buyers' Coop, 532 U.S. 483, 502 (2001) (Stevens, J, concurring in the judgment) ("[F]ederal courts [must], whenever possible, . . . avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a [s]tate have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country." (internal quotation marks omitted)).
¶ 18 By enacting the CSA, Congress did not intend to preempt the entire field of drug enforcement. Under 21 U.S.C. § 903, the CSA shall not "be construed" to "occupy the field" in which the CSA operates "to the exclusion of any [s]tate law on the same subject matter which would otherwise be within" the state's authority. Rather, section 903 provides that state laws are preempted only when "a positive conflict" exists between a provision of the CSA and a state law "so that the two cannot consistently stand together." Id.
¶ 19 One reason for maintaining state control is that "the regulation of drug abuse is a state concern with special local problems necessitating use of the state police power." Ledcke v. State, 296 N.E.2d 412, 420 (Ind. 1973). "Congress evidently intended that both federal and state governments should regulate the drug traffic which has become so prevalent." State v. Allard, 313 A.2d 439, 444 (Me. 1973). When viewed from the perspective that drug abuse and drug trafficking should be concurrently regulated by the federal and state governments, Congress' statement in section 903 that the CSA "does not generally preempt state law gives the usual assumption against preemption additional force." Nat'l Pharmacies, Inc. v. De Melecio, 51 F.Supp.2d 45, 54 (D.C.P.R. 1999) (emphasis in original). D. The Assumption Against Preemption Has Not Been Overcome
1. The Test
¶ 20 Although Congress may preempt "state regulation contrary to federal interests, " it cannot "commandeer the legislative processes of the States." New York v. United States, 505 U.S. 144, 188 (1992) (internal quotation marks and alterations omitted). Thus, on the one hand, federal authorities may enforce federal marijuana laws involving crimes committed solely in Colorado. See Gonzales v. Raich, 545 U.S. 1, 32-33 (2005) (locally grown and used marijuana is subject to federal regulation under the Commerce Clause). And Colorado law cannot supersede such federal laws. Id. at 29. But, on the other hand, Congress cannot compel the State of Colorado to "enact or administer" federal laws concerning such crimes in Colorado state courts. See New York, 505 U.S. at 148.
¶ 21 A federal law can preempt a state law in three different ways. First, Congress can occupy an entire legislative field leaving "'no room for the states to supplement it.'" In re Estate of MacAnally, 20 P.3d 1197, 1201 (Colo.App. 2000) (quoting Greenwood Trust Co. v. Conley, 938 P.2d 1141, 1147 (Colo. 1997)). Second, a federal law can expressly preempt other laws. Id. Third, a state statute can conflict with federal law. Id.
¶ 22 Conflict preemption has two forms: impossibility and obstacle preemption. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372–73 (2000). Impossibility preemption exists "where it is impossible for a private party to comply with both state and federal law." Id. Obstacle preemption exists "where under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 373 (internal quotation marks omitted).
¶ 23 Here, the prosecution limits its argument to obstacle preemption. But the particular wording of CSA § 903 — "there is a positive conflict [such that] the two cannot consistently stand together" — has been interpreted as foreclosing obstacle preemption:
Because Congress provided that the CSA preempted only laws positively conflicting with the CSA so that the two sets of laws could not consistently stand together, and omitted any reference to an intent to preempt laws posing an obstacle to the CSA, we interpret title 21 United States Code section 903 as preempting only those state laws that positively conflict with the CSA so that simultaneous compliance with both sets of laws is impossible.
Cnty. of San Diego v. San Diego NORML, 81 Cal.Rptr.3d 461, 481 (Cal.Ct.App. 2008). We consider County of San Diego well-reasoned and follow it here.
¶ 24 "Congressional intent is determined primarily from the statute's plain language, and secondarily from the statute's legislative history." Greenwood Trust Co., 938 P.2d at 1147. The "positive conflict" phrase demands more than that the state law "stands as an obstacle to the accomplishment and execution" of the federal law. Boggs v. Boggs, 520 U.S. 833, 844 (1997) (internal quotation marks omitted).
¶ 25 Therefore, based on the plain language of the CSA, we conclude that it cannot be used to preempt a state law under the obstacle preemption doctrine. Nevertheless, we offer an alternative analysis of the obstacle preemption doctrine because no federal court has addressed the viability of this doctrine under the CSA.
¶ 26 Obstacle preemption analysis involves two steps. First, the purposes and intended effects of the relevant federal and state laws are determined. Second, those purposes and intended effects are compared to see if the state law impedes accomplishment of the federal purposes, which is the "ultimate touchstone in every [preemption] case." Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks omitted). At the second stage, to determine whether a sufficient obstacle exists, a court examines "the federal statute as a whole." Crosby, 530 U.S. at 373. "For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered . . . ." Id. (internal quotation marks omitted).
2. The Purposes and the Intended Effects of Federal and Colorado Marijuana Laws
a. Federal Marijuana Laws
¶ 27 The CSA lists marijuana as a schedule I controlled substance. 21 U.S.C. § 812 Schedule I (c)(10). Thus, as a matter of federal law, marijuana does not have a "currently accepted medical use in treatment, " it poses a "high potential for abuse, " and it lacks "accepted safety for use . . . under medical supervision." §§ 812(b)(1)(A)-(C). Physicians cannot prescribe marijuana as medicine under federal law, 21 C.F.R. § 1301.13 (2010). In other words, the CSA "designates marijuana as contraband for any purpose." Raich, 545 U.S. at 27 (emphasis in original).
¶ 28 The CSA prohibits, among other acts, distributing a controlled substance. 21 U.S.C. § 841(a). Even so, 21 U.S.C. § 885(d) "carve[s] out a specific exemption for distribution of controlled substances by law enforcement officers." United States v. Cortes-Caban, 691 F.3d 1, 20 (1st Cir. 2012). The purpose of section 885(d) is to "protect accepted law enforcement tactics . . . in which officers handle and transfer drugs." Id.; see also H.R. Rep. No. 91– 1444 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4625 (explaining that section 885(d) "exempts state and local officers when lawfully engaged in enforcing any law relating to controlled substances").
b. Colorado Marijuana Laws
¶ 29 For many years, Colorado law has criminalized the cultivation, possession, and distribution of marijuana. § 18-18-406, C.R.S. 2013.
¶ 30 Colorado's voters created an exception when they approved the MM Amendment, which became effective on the Governor's proclamation. 2001 Colo. Sess. Laws 2379.  As indicated, MM Amendment section (2)(a) provides patients "an affirmative defense" to state prosecution. And MM Amendment section (2)(e) states that marijuana and paraphernalia "seized by state or local law enforcement officials from a patient . . . in connection with the claimed medical use of marijuana shall be returned immediately" to the medical marijuana patient "upon the determination" of the prosecutor ...