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People v. Crouse

Supreme Court of Colorado, En Banc

January 23, 2017

The People of the State of Colorado, Petitioner
v.
Robert Clyde Crouse, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA2298

         Judgment Reversed

          Attorneys for Petitioner: Daniel H. May, District Attorney Margaret Vellar, Chief Deputy District Attorney Doyle Baker, Senior Deputy District Attorney Colorado Springs, Colorado

          Attorney for Respondent: Charles T. Houghton, P.C. Charles T. Houghton Colorado Springs, Colorado

          Attorneys for Amicus Curiae The City of Colorado Springs: Wynetta P. Massey, City Attorney W. Erik Lamphere, Senior Attorney Colorado Springs, Colorado

          OPINION

          EID, JUSTICE

         ¶1 The state's medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act ("CSA") prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801-971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA. In a split decision, the court of appeals held that the return provision was not preempted by the CSA on the ground that § 885(d) of the CSA exempts those officers who are "lawfully engaged" in the enforcement of laws relating to controlled substances. According to the appellate court, officers returning marijuana pursuant to section 14(2)(e) are acting "lawfully" and the exemption thus resolves any conflict between the CSA and the return provision. People v. Crouse, 2013 COA 174, ¶¶ 32-33, ___ P.3d ___.

         ¶2 We granted certiorari and now reverse. The CSA does not preempt state law on the same subject matter "unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together." 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a "positive conflict" between the return provision and the CSA's distribution prohibition such that "the two cannot consistently stand together."

         ¶3 Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are "lawfully engaged in the enforcement of any law . . . relating to controlled substances." 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is "lawful" only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be "lawfully engaged" in law enforcement activities given that their conduct would violate federal law. We thus conclude that, because section 14(2)(e) "positive[ly] conflicts" with the CSA, and because § 885(d) does not protect officers acting unlawfully under federal law, the return provision is preempted and rendered void.

         I.

         ¶4 On May 5, 2011, the Colorado Springs Police Department arrested Robert Crouse for cultivating and possessing marijuana with intent to manufacture in violation of state law. The police seized drug paraphernalia, fifty-five marijuana plants, and approximately 2.9 kilograms of marijuana product from Crouse's home. He was charged 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 intent to distribute. At trial, Crouse asserted that he was a registered medical marijuana patient, and that state law authorized his cultivation and possession of medical marijuana. The jury acquitted him of both charges.

         ¶5 After trial, Crouse requested that the district court order the police to return the seized marijuana plants and marijuana pursuant to article XVIII, section 14(2)(e) of the Colorado Constitution. Under this provision, "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 upon . . . the dismissal of charges, or acquittal." Colo. Const. art. XVIII, § 14(2)(e). The People opposed the motion, arguing that the return provision of section 14(2)(e) conflicts with and is therefore preempted by the federal Controlled Substances Act. The People argued that the return of marijuana and related property would require them to "distribute" marijuana, in violation of the CSA. The district court rejected the People's argument and ordered the return of the seized property.

         ¶6 The People appealed, arguing that the return provision of section 14(2)(e) conflicted with the CSA. In a split opinion, the court of appeals affirmed the district court's decision, holding that the return of the marijuana would not violate the CSA due to the statute's express immunity for law enforcement officers "lawfully engaged in the enforcement of any law . . . relating to controlled substances." 21 U.S.C. § 885(d). Because law enforcement officers would be enforcing section 14(2)(e), the court of appeals reasoned, the officers would be acting lawfully under § 885(d), and therefore no conflict exists. Crouse, ¶¶ 32-33.

         ¶7 In dissent, Judge Bernard would have held that because the return provision "requires police officers to violate federal law by engaging in affirmative conduct that the CSA forbids, " it "creates an obstacle to achieving the purposes and the objectives of the CSA" and is therefore preempted. Id. at ¶ 105 (Bernard, J., dissenting). Immunity under § 885(d) of the CSA, he continued, was not applicable because the officers could not be "lawfully engaged" in law enforcement activities that violated federal law. Id. at ¶ 106.

         ¶8 We granted review of the court of appeals' opinion[1] and now reverse. Compliance with the return provision necessarily requires law enforcement officers to violate federal law. We therefore conclude that the return provision of 14(2)(e) "positive[ly] conflicts" with the CSA such that "the two cannot consistently stand together." Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) immunizes only those officers who are "lawfully engaged in the enforcement of any law . . . relating to controlled substances." 21 U.S.C. § 885(d) (emphasis added). This court has held that an act is "lawful" only if it complies with both state and federal law. Coats, ¶ 4, 350 P.3d at 851. Here, the officers could not be "lawfully engaged" in law enforcement activities given that such conduct would violate federal law. We therefore hold that, because section 14(2)(e) "positive[ly] conflicts" with the CSA, and because § 885(d) does not protect officers acting unlawfully under federal law, the return provision is preempted and rendered void.

         II.

         ¶9 We review de novo the question of whether the return provision of article XVIII, section 14(2)(e) of the Colorado Constitution is preempted by the federal Controlled Substances Act.

         ¶10 In 2000, the Colorado Constitution was amended to allow persons "suffering from debilitating medical conditions" to use "medical marijuana." Colo. Const. art. XVIII, § 14. Here we consider only section 14(2)(e) of article XVIII. Section 14(2)(e) provides that if marijuana is seized pursuant to an arrest, "such property shall be returned immediately upon an acquittal." Colo. Const. art XVIII, § 14(2)(e).

         ¶11 Conversely, the CSA prohibits the distribution and possession of marijuana for nearly all uses. Under federal law, marijuana is classified as a Schedule I controlled substance, meaning that it has no acceptable medical use and cannot be legally prescribed. 21 U.S.C. § 812(c)[(Sched. I)](c)(10) (2012); see also 21 U.S.C. § 812(b)(1)(A)- (C) (2012). There is no exception for marijuana use for medical purposes, nor is there an exception for use in compliance with state law. See Gonzales v. Raich, 545 U.S. 1, 14 (2005). The CSA states that "it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (2012).

         ¶12 However, § 885(d) provides an exemption under the CSA for law enforcement officers in certain situations. Section 885(d) states that "no civil or criminal liability shall be imposed by virtue of this subchapter . . . upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the ...


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