Not a pending Supreme Court decision, nor pledges by several Arizona county attorneys to hold off on prosecuting medical marijuana cases, nor Noah Blackwell’s state-issued medical marijuana card were enough to stop a state trooper from hauling Blackwell to Maricopa County’s Fourth Avenue jail last month for possessing a vape pen.
Blackwell was driving home from a friend’s house on March 6 when a state trooper pulled him over for an abrupt lane change on the Superstition Freeway near Gilbert Road. Blackwell, who is 22, told the officer he had a gun, which he was licensed to carry concealed. He also told the trooper where to find his vape pen, which his Arizona-issued medical marijuana card gave him license to carry, too.
“He said he was going to have to arrest me because you can’t have medical marijuana and guns in the same vicinity,” Blackwell recalled. “He was going to have to arrest me for having a wax pen.”
Blackwell spent a day in jail. He was released on his own recognizance and told to show up to court on March 21 for a pretrial status conference. Court documents show he faced five felony charges, including one count of possessing drug paraphernalia and three counts of narcotic drug possession, and one for misconduct involving firearms. But two days before his first scheduled appearance, Blackwell said he received a text saying that no charges were filed and he didn’t need to show up.
An attorney he’d consulted called the court, Blackwell said, and learned that it was waiting for a decision in the Arizona v. Jones case, which centers on the legality of marijuana extracts — found in edibles, wax, shatter, and oils — under the 2010 Arizona Medical Marijuana Act. On March 19, about the same time Blackwell was told not to show up to court, the Arizona Supreme Court heard oral arguments in the case in downtown Phoenix.
Now the fate of medical marijuana in Arizona hangs on the justices’ decision. As extracts remain in legal purgatory, arrests in Maricopa County are leaving patients and advocates in a haze of confusion and frustration about the county’s policy and the risks to medical marijuana patients for possessing extracts.
According to advocates, attorneys, and patients, law enforcement officers in Maricopa County are arresting patients who have products containing extracts and holding the evidence. To them, those actions amount to the threat of prosecution. Should the Supreme Court rule that Arizona’s medical marijuana law doesn’t cover extracts, such a decision not only would gut the 2010 law, but it also could unleash a slew of narcotics possession charges against patients, months after their arrests.
“I haven’t gotten my medicine back, and I haven’t gotten my firearm back,” Blackwell told Phoenix New Times. A registered patient for more than a year, he takes medical marijuana to help with chronic neck and back pain from a two-story fall he took as a child.
“My back is all messed up, and I’m already developing arthritis in my neck,” he said. Blackwell said he didn’t believe in taking pills, but the medical marijuana helped.
As for the trooper’s claim that he couldn’t possess a firearm and drugs in the same vicinity, several lawyers said that under Arizona law, medical marijuana patients should be legally allowed to possess both. The confusion arises from federal law that bars the possession of guns in the vicinity of illegal drugs.
Depending on the Supreme Court’s decision, Blackwell is one of several known patients in Maricopa County who could face charges for narcotics possession. Last week, the Arizona chapter of the American Civil Liberties Union sent a letter to County Attorney Bill Montgomery, asking his office to stop “prosecuting or threatening to prosecute” licensed patients.
The letter didn’t cite specific cases, but Jared Keenan, the group’s criminal justice attorney, cited at least one arrest of a medical marijuana patient. Advocates at Arizona NORML, the state chapter of a national marijuana-advocacy organization, cite more.
Mikel Weisser, Arizona NORML’s executive director, runs a hotline for patients who’ve been arrested for marijuana possession. He confirmed that he knew of six such cases in Maricopa County, but said there could be more.
As Arizona’s medical marijuana community waits to see how the Supreme Court case shakes out, Weisser and Tom Dean, a marijuana attorney who is also Arizona NORML’s legal counsel, sent a letter on April 5 to all 15 Arizona county attorneys, asking for a moratorium on new drug charges for medical marijuana patients and for attorneys to “exercise prosecutorial discretion for the next few months until we find out what the final decision is.”
The Maricopa County Attorney’s Office, meanwhile, says it is not prosecuting such patients, and that its policy is not to do so.
Amanda Steele, a spokesperson for the Maricopa County Attorney’s Office, said via email on April 11 that the office had not received the letter from NORML. The ACLU’s letter “did not offer any information on a case or a person,” she added, and the county attorney’s office had not been provided any evidence of patients prosecuted for possessing marijuana concentrates.
“It is the official position of this office that we do not prosecute individuals who have a valid qualified patient card and possess/use items that meet the requirements of [the Arizona Medical Marijuana Act]. This includes cannabis products such as concentrates,” Steele added.
MCAO might not be prosecuting patients possessing extracts — for now — but according to cannabis advocates, patients are being threatened with prosecution. Dean, Arizona NORML’s attorney, said there is a discernible difference, from the cases he’s seen, in law enforcement’s treatment of medical marijuana patients who use the flower and those who use products containing extract.
“If you have a patient card, and you have flower within your allowable amount, officers aren’t going to take that,” he said. “But they’re going to take the concentrates. They absolutely treat patients differently who are in possession of flower.”
From Dean’s perspective, the Maricopa County Attorney’s Office seems to be gearing up to file charges against patients who have already been arrested, should the Supreme Court rule that extracts are not legal under the Arizona Medical Marijuana Act.
“If they didn’t intend to file charges against patients... why would they take the evidence and file reports?” Dean said. “All of the things short of actually filing criminal charges are already taking place.”
Victoria Vornberg said she was arrested November 21, in Surprise, for less than a gram of wax. Even though she showed the police officer her medical-marijuana card, which she’s had for two years, and told him she’d bought the wax at a dispensary, “he pretty much told me that it’s equivalent to meth and heroin,” she recalled. She also had a “a pinch or two” of weed on her, but the officer wasn’t interested in that, she said.
“He was like, ‘The weed doesn’t matter. We only care about the wax,’” Vornberg said. “He kept all of it anyway.”
The officer took Vornberg, who is 19, to the police station, where she had mug shots taken and was told to expect papers from six months to a year later. As of April 10, she hadn’t received them.
“I don’t really know what to do,” Vornberg said. “The officer told me that it might be dropped to a misdemeanor, but I’m still going to try to fight that anyway, because that’s not right. I’m going to fight it no matter what it is.”