State v. Ehrensing

The evidence return provisions of the Oregon Revised Statutes require that the person the evidence is returned to be lawfully entitled to possess the evidence. Because possessing marijuana is illegal under federal law, the statute does not require it be returned to a defendant.

The State appealed a trial court order returning marijuana seized from Defendant, who is a registered marijuana card holder, back to Defendant. Marijuana was seized from Defendant but the criminal case was dismissed. Defendant requested the return of the marijuana pursuant to the Oregon Medical Marijuana Act (OMMA) and the statutory evidence return provisions. The State argued that it could not comply with the trial court's order without violating the federal Controlled Substances Act (CSA), and thus the provisions requiring the return of the marijuana were preempted by federal law. The Court of Appeals reversed, but did not reach the preemption argument. Instead, the Court found that Defendant was not entitled to the return of the marijuana under state law. The OMMA provision did not apply because the requisite determination by a district attorney required by ORS 475.323(2) was not met. The general evidence return provisions also didn't apply, because they required Defendant be "lawfully entitled to possess" the returned evidence, and Oregon interpretation of that provision requires it be lawful under both state and federal law. Because possession of the marijuana would violate the CSA, defendant fails to meet that requirement of the law and is not entitled to the marijuana's return under those provisions. Reversed.