palmspringsbum - Felony Cultivation Return of Property Reply to Opposition


 1   mary caregivers "who associate within the State of California
                         
 2   in order collectively or cooperatively to cultivate marijuana
                         
 3   for medical purposes."  ID. § 11362.775.
                         
 4         The Ninth Circuit for the first time expressed its view as
                         
 5   to whether the CSA constitutionally applies to the personal,
                         
 6   noncommercial use of marijuana for medicinal purposes.¹  Raich
                         
 7   v. Ashcroft, 352 F.3d 1222 (oth Cir. 2003).
                         
 8         By a two to one vote, the court determined that such ac-
                         
 9   tivities do not involve instrumentalities or channels of inter-
                         
 10  state commerce and it therefore needed to decide only whether
                         
 11  they substantially affected interstate commerce.  See United
                         
 12  States v. Lopez, 514 U.S. 549, 558-59, 131 L. Ed. 2d 626, 115
                         
 13  S. Ct. 1624 (1995).  Pursuant to the analytical framework ar-
                         
 14  ticulated by the Supreme Court in United States v. Morrison,
                         
 15  529 U.S. 598, 610-12, 146 L. Ed. 2d 658, 120 S. Ct 1740
                         
 16  (2000), the court considered the following questions:  (1) Does
                         
 17  the statute in question regulate commerce or any sort of eco-
                         
 18  nomic enterprise?;  (2) Does the statute contain any express ju-
                         
 19  risdictional element which might limit its reach to a discrete
                         
 20  set of cases?; (3) Does the statute or its legislative history
                         
 21  contain express congressional findings that the regulated ac-
                         
 22  tivity affects interstate commerce:; and (4) Is the link be-
                         
 23  tween the regulated activity and a substantial affect on inter-
                         
 24  state commerce attenuated?  See id.
                         
 25  
                         
 26  ___________________
                         
 27  ¹ This issue was expressly reserved by the Supreme Court in
     United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483,
 28  495 n.7, 149 L. Ed. 2d 722, 121 S. Ct. 171 (2001).
                         
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 Defendant's Reply to Oppoosition to Motion for Return of Property