AZ: The Feds, The State, And Legal Pot


Sierra Vista – If examples from Washington and Colorado are any indication, should Arizona voters pass Prop 205 this November and legalize recreational marijuana use for adults, there should be little to no federal interference with state law, even in areas with a high number of federal law enforcement agents, such as Cochise County.

Just dont try to drive through a U.S. Border Patrol Checkpoint with your state sanctioned weed, said Vic Brabble, U.S. Customs and Border Protection spokesman for Arizona.

It wont change our current posture. Just as with medical marijuana, were a federal agency and charged with enforcing federal laws, Brabble said last week. We have no choice but to seize any illicit contraband.

Currently, whether or not someone is arrested for a small or personal amount of marijuana in their car – whether covered by the states medical marijuana law or not – depends on the amount of pot they have. The case is then turned over to either federal authorities if it amounts to a more serious offense, such as trafficking, or to state and local jurisdictions for simple possession.

It all depends on the amount, the circumstances, Brabble said.

Since Arizona voters passed the states medical marijuana law, there have been virtually no instances of a valid medical pot user attempting to pass through a Border Patrol checkpoint with marijuana, he said.

This really hasnt been something on the forefront for us, he said.

Arizona Prop 205 would allow a person who is 21 years or older to possess and use 1 ounce or less of marijuana. It would also create a Department of Marijuana Licenses and Control to regulate the production, distribution and sale of the substance throughout the state. All marijuana sales would be taxed an additional 15 percent.

The fees collected for applications, licensing and other administrative fees, as well as other fines collected for violations of new marijuana regulations, would fund the new department, with any remainder going to public and charter schools and the Arizona Department of Health Services, according to a legislative council analysis of the proposition.

It would still be illegal to drive or operate machinery while impaired by marijuana and an employer would not be required to allow the possession or consumption of marijuana in the workplace.

Prop 205 also establishes as petty violations punishable by a maximum fine of $300 the following actions: using or smoking marijuana in a public place, using marijuana if under 21, unauthorized production of marijuana, and possession of more than 1 ounce but not more than 2.5 ounces of marijuana.

The U.S. Attorneys Office in Arizona is largely unconcerned with simple possession cases stemming from those in compliance with the states medical marijuana law, said spokesman Cosme Lopez.

We really dont take them, Lopez said.

Should recreational marijuana became legal throughout the state, the US Attorneys Office would have to take each instance on a case by case basis when determining whether or not to prosecute.

Each one is very unique in its own way. Its very difficult to say, yes, were going to do this in all simple possession of marijuana cases, he said.

In August 2013, US Attorneys Offices across the country were given additional direction by the Justice Department on how to prosecute marijuana cases in light of action on the part of Washington and Colorado voters to legalize recreational use.

Known as the Cole Memo, it outlines eight specific enforcement priorities for state offices to follow when it comes to allocating their own limited resources to prosecuting marijuana-related cases.

The memo specifies that federal prosecution priorities include: distribution of pot to minors, preventing pot revenues from going to cartels or criminal organizations, preventing pot being moved into states where it remains illegal, preventing drugged driving, preventing use or growth of marijuana on public lands, preventing the use of firearms in the sale or cultivation of pot and preventing the state-authorized sale of marijuana from being used as a cover for the sale or distribution of other illegal substances.

We rely on the Cole Memo, said Jeff Dorschner, spokesman for the U.S. Attorneys Office in Colorado. If they are not on federal land, theyre in their home, and theyre allowed to legally possess and use marijuana, the Cole factors dont really contemplate us going after individual users, generally.

Those that are charged with simple possession, say for smoking marijuana on federal land, are generally ticketed or cited. It would be reasonable to think that a similar punishment for similar activity would be seen in Arizona, should recreational marijuana be made legal, Dorschner said.

The legalization of recreational marijuana was not a remedy for all pot-related criminal activity, however.

Our drug task force focuses on large scale marijuana distribution where the marijuana is grown here illegally – including under state law – and then sent out of state to a state where marijuana is not legal, Dorschner said.

Also a concern are illegal growing operations in the states many wilderness areas.

People will find an isolated area and grow marijuana on federal land. What that does is, there is a horrible environmental impact to the forest, the ecosystem and land where they grow the marijuana. They use fertilizers that harm the ecosystem, he said.

In Sierra Vista, should Prop 205 pass, police will have to take a more nuanced view toward marijuana possession when dealing with day to day law enforcement efforts, said Sierra Vista Police Chief Adam Thrasher.

The language of the proposition indicates that possession of more than 2.5 ounces of marijuana would not fall under the Prop 205 guidelines, so police would therefore still rely on federal marijuana possession laws, which state anything under 2 pounds is a class six felony, Thrasher said.

For instance, the odor of fresh marijuana coming from inside a vehicle would still be grounds for contact with a citizen, or taken as one of the totality of circumstances for officers to consider when evaluating a situation for possible criminal activity, because certain amounts would still be illegal, he said.

What we teach our officers, is the totality of the circumstances. Its all the factors together, does that give rise to probable cause to believe that there is evidence or something illegal going on in the vehicle. Any traffic stop, the smell of marijuana alone may not be enough, but based on other factors, it may give them enough to articulate probable cause, he said.

Thrasher said he also suspects, with the lower punishment of a petty offense, that individuals will regularly carry more than the 1 ounce authorized by Prop 205.

Theyre already doing it now when its illegal. If theyre already possessing it and smoking it when its a class 6 felony, whats the incentive to not carry up to 2.5 ounces if its a petty offense? he said.

The police department is more concerned with street-level dealers than individual marijuana users, and it is rare that the odor of marijuana is the initial reason for contact with someone, he said.

Typically our contacts come from some other reason, and the drug investigation develops out of that, the chief said.

One common tactic that officers gather information on dealers is through contacts with individual users in possession of marijuana who may give up information. Those scenarios may become less likely to happen should recreational marijuana becomes legal.

When we deal with users and arrest users, typically for other crimes, we may use those people to develop information and intel on dealers and that kind of stuff. It may be more difficult after this, but our target has always been the dealers, he said.

As an agency that often works closely with federal agencies, Thrasher said he doesnt foresee much federal prosecution of individuals users.

While it is a federal offense to possess marijuana, from a practical standpoint of the feds, they really dont do a lot of prosecution under 2.5 pounds of marijuana, he said, although anything over 2.5 ounces would still be a felony that local and state authorities could charge.

Thrasher said he does not support Prop 205 personally and as a police officer, believing that it will not stem cross-border drug trafficking and that it will exacerbate impairment-related criminal activity.

When youve done this job long enough and you see the effects of impairment and what people do, and, to be quite honest, what they do to each other, and now we have another legal method to impair yourself, youre going to have issues, no matter what you do, he said.

News Moderator: Katelyn Baker
Full Article: The Feds, The State, And Legal Pot
Author: Derek Jordan
Contact: (520) 384-3571
Photo Credit: Don Treeger
Website: Arizona Range News