Beyond Borders

Arizona’s struggle to find balance between law and legislature

With federal law in direct conflict with state laws concerning medicinal cannabis, patients possessing valid cards who find themselves at Border Patrol checkpoints in Arizona may still be at risk of being stopped and their medication confiscated.

“Border Patrol agents sometimes confiscate personal property, sometimes without legal authorization or justification,” said Staff Attorney James Duff Lyall of the American Civil Liberties Union of Arizona – Tucson Office.

“As far as risk of arrest and/or confiscation, an additional problem is that Border Patrol agents working at vehicle checkpoints do not generally understand what legal authority they have and in what ways their authority is limited—the law is complicated and they aren’t lawyers. This often results in unlawful questioning, searches and detentions.”

And while the state of Arizona will not charge valid medical cannabis patients for possessing cannabis or related paraphernalia in court, the patients could still be prosecuted in federal court.

However, “in practice, the U.S. Attorneys have shown little interest in wasting limited resources to federally prosecute extremely low level drug charges,” Lyall said.

In Yuma County, which borders both California and Mexico in southwestern Arizona, the Border Patrol maintains permanent checkpoints on both Interstate 8 and U.S. Highway 95, the only major thouroughfares leading out of the area.

In advance of the Arizona Medical Marijuana Act, which was approved by state voters in Nov. 2012, even people possessing valid MMJ cards in other states were not protected once they crossed the border. “Before the Medical Marijuana Act was in effect, there was no such thing as a visiting patient,” said Jon Smith, Yuma County Attorney.

“If they were stopped at the checkpoint, they would be cited for possession of paraphernalia or possession of cannabis, and the fact that they had a card from another state wasn’t a defense.” That meant patients faced the same laws as recreational users, although those busted with small amounts of personal use cannabis at the checkpoints in Yuma County almost exclusively receive misdemeanor citations.

Operation Citation—a cannabis bust initiaive started in 2007—is still active in the Yuma Sector, is a joint initiative between the Border Patrol and the Yuma County Sheriff’s Office (YCSO). As part of the effort, the Border Patrol agents who handle the drug sniffing dogs at the checkpoints are cross-certified by the sheriff’s department to issue citations which can then be prosecuted on the state level.

In 2008, the number of citations issued and prosectued skyrocketed to 1,334. That number continued to grow over the next two years, reaching a peak of 1,790 in 2010 – the same year voters approved the AZ Medical Marijuana Act. With the new law in effect during 2011, the number of  citations given out at the checkpoints that were prosecuted fell to 1,354. The large drop was because a number of those caught with cannabis were valid MMJ cardholders from Arizona or other states. While they were issued citations, the Yuma County Attorney’s Office generally declined to prosecute because Arizona now recognized the legal right of patients from within the state and from other states to possess cannabis. The declining trend continued in 2012 with, only 750 citations given out that were prosecuted, a drop of over 50 percent from the previous year.

Official year-to-date statistics for 2013 concerning citations issued at the Yuma County checkpoints are currently unavailable. Despite the fact valid MMJ patients are not prosecuted on the state level for possessing legal amounts of cannabis, following the implementation of the AZ Medical Marijuana Act, Border Patrol agents continued to seize any cannabis and paraphernalia they came across at the checkpoints.

If any valid medical cannabis patient traveling through Arizona “feels that they have been mistreated at a checkpoint or in any other encounters with Border Patrol or state law enforcement, they should contact the ACLU of Arizona,” Lyall concluded.

Got Rights?

Since Border Patrol agents continue to seize any cannabis and/or paraphernalia they came across at the checkpoints, this led to a case which may now be headed to the US Supreme Court. The case revolves around Valerie Okun, whose three-fourths of an ounce of medicinal cannabis, as well as some hashish, was taken from her nearly two years ago at a Border Patrol checkpoint on I-8 east of Yuma. Okun was not prosecuted by the Yuma County Attorney’s Office because she possessed a valid medical cannabis card issued in California. Once she was cleared of wrongdoing, Okun asked the court to return the cannabis that had been seized from her. The judge presiding over the case agreed to the request, but Ralph Ogden, who was the Yuma County Sheriff at the time, refused to comply. Ogden made this decision based on recommendations from his attorneys, who stated that Arizona law requires any cannabis seized in connection with a drug offense be forfeited to the State. The court ruled that since Ikun is a legal medical cannabis user, the State had no right to take away her pot.