Pubdate: Thu, 03 Nov 2016
Source: Arizona Range News (Willcox, AZ)
Copyright: 2016 Arizona Range News
Author: Derek Jordan


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 don't 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 won't change our current posture. Just as with medical marijuana,
we're a federal agency and charged with enforcing federal laws,"
Brabble said last week. "We have no choice but to seize any illicit

Currently, whether or not someone is arrested for a small or personal
amount of marijuana in their car-whether covered by the state's
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

Since Arizona voters passed the state's 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 hasn't been something on the forefront for us," he

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. Attorney's Office in Arizona is largely unconcerned with
simple possession cases stemming from those in compliance with the
state's medical marijuana law, said spokesman Cosme Lopez.

"We really don't take them," Lopez said.

Should recreational marijuana became legal throughout the state, the
US Attorney's 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 it's own way. It's very difficult to say,
yes, we're 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. Attorney's Office in Colorado. "If they are not on federal land,
they're in their home, and they're allowed to legally possess and use
marijuana, the Cole factors don't 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 state's 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.
It's 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.

More concerning for the police chief are what he called "the broader
effects" of marijuana legalization, citing a study by a recent Rocky
Mountain High Intensity Drug-Trafficking Areas study of
marijuana-related activity in Colorado post-legalization.

"They have shown increase in marijuana use among the youth. That is a
particular thing we are going to continue to deal with," he said.
"You're going to have people driving around that have just smoked
marijuana. The difficulty there, based on this statute, is there
really is no test right now that determines THC level in the blood to
determine impairment. So it becomes a roadside test."

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.

"They're already doing it now when it's illegal. If they're already
possessing it and smoking it when it's a class 6 felony, what's the
incentive to not carry up to 2.5 ounces if it's a petty offense?" he

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 doesn't 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 don't 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

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 you've 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, you're going to have issues, no matter what you do," he said.
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