Attorney says city officials should face jail time if pot not returned to Tacoma man

Police in Tacoma could soon be in real trouble over pot.

The department could be found in contempt if they continue to refuse to return a small amount of marijuana seized from a man after a traffic stop. Municipal Court Judge Jack Emery repeated an order to police Thursday to return the drug to Joseph L. Robertson within seven days or they could be found in contempt.

“Appeal or comply,” Emery told assistant city attorney John Walker. “Or next week, show up, and I would advise you to bring counsel.”

The judge first ordered police to return the drug on Feb. 28, but they have refused. It was seized in May of last year when an officer pulled over the Tacoma man for speeding. He was cited for driving without a license and misdemeanor marijuana possession. Prosecutors dismissed the drug charge in December, after state voters decided to legalize small amounts of the drug.

Even without voter approval of I-502, Robertson’s attorney Jay Berneburg told KIRO Radio’s Andrew Walsh Show Robertson wouldn’t have been convicted on the possession charge because he was a designated medical marijuana provider.

“It was legal for him,” said Berneburg. “There is no way he would have been convicted of unlawful possession of a controlled substance. It was a lawful possession of a controlled substance and the City of Tacoma would have been unable to prove otherwise.”

Robertson provided proof of medical marijuana authorization and then asked for his pot back. The city refused, which led to Emery’s Feb. 28 order.

Berneburg said he discussed the order with assistant city attorney John Walker, and Walker told him he wasn’t planning to give the marijuana back.

“John Walker said, ‘Look we’re not giving it back,'” said Berneburg. “I said, ‘John we have a court order. You have to give it back.’ He said, ‘No. I can’t. You have to understand there’s federal laws, there’s this.’ I said, ‘I don’t care.’ I said, ‘You have a court order. You have a lawful court order.”

Judge Emery said police could be found in contempt unless they comply. The pot is now in the possession of the Pierce County sheriff’s department, which operates the property room for seized evidence.

Pierce County Sheriff’s spokesman Ed Troyer told the Andrew Walsh Show Friday that under federal law, they can’t just hand the drugs back to Robertson.

“As the sheriff’s department, we do hold the property, but we’re also ordered by the federal government – court ordered – not to return drugs under any circumstance and if we do, we’re in federal violation,” said Troyer. “It’s not that we don’t want to give him back his drugs. We just don’t want to be in trouble with the federal government.”

Troyer said they’d be willing to hand the marijuana over to assistant city attorney John Walker and he can handle things from there.

“We are willing to give it back to the City of Tacoma because it is their case,” said Troyer. “They can give it back [to Robertson] and we have no heart burn over that. But what we’re not going to do is hand weed or drugs out to a citizen at our property room and watch them walk off with it.”

The decision will then really fall to Walker. Berneburg said they’re waiting to see what Walker and the city will do.

“I think if they don’t [return the marijuana], I think they’re in contempt. And I think if they don’t, somebody’s running the risk of going to jail. If my client did that, he’d be in jail. If I did it, I’d be in jail. If it’s the attorney for the police department, he’d better go to jail or there’s going to be another lawsuit.”

The Associated Press contributed to this report.