Confiscated Medical Marijuana: Must it Be Returned?

The State of Michigan passed the Michigan Medical Marijuana Act (MMMA) in 2008. Since it became law the MMMA has been a constant source of controversy. A commonly asked question is, can an individual authorized to have marijuana, be it patient or caregiver, have their marijuana returned if confiscated by law enforcement?
According to Section 4(h) of the MMMA the marijuana “shall not be seized or forfeited” (MCL 333.26424(h)), meaning that once things are clarified the marijuana should be returned to the individual. However, Federal Law under the Controlled Substance Act (CSA), 21, USC §841(a)(1) states to the contrary. The CSA states that returning the marijuana is illegal, and the law enforcement officer that returns such is breaking the law.
The Attorney General of the State of Michigan, Bill Scheutte, has weighted in on the issue. He believes the CSA preempts the MMMA, and that law enforcement officers do not have to return marijuana back to an individual once confiscated, irrespective of whether that individual is otherwise protected from criminal prosecution under the MMMA. Attorney General Bill Scheutte’s full opinion can be found on the Office of the Attorney General’s website, under opinions. (Opinion No. 7262, Dated November 10, 2011). Like many of the issues associated with the MMMA this issue will no doubt find its final resolution in Court.


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