How Arizona County Targets Cannabis Patients, CBD Oil Users | Phoenix New Times

New Times Investigation: How Yavapai County Targets Cannabis Patients, CBD Oil

Tactics by prosecutor Sheila Polk have resulted in injustices against cannabis patients and CBD consumers that go beyond the Rodney Jones case.
Medical marijuana patient Ashle Stuart of Cornville chose to take a plea deal in July after a nearly a year of fighting with Yavapai County authorities over felony charges for possession of a dispensary-bought vape pen.
Medical marijuana patient Ashle Stuart of Cornville chose to take a plea deal in July after a nearly a year of fighting with Yavapai County authorities over felony charges for possession of a dispensary-bought vape pen. Ray Stern
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The felony drug and weapons case began when Prescott Valley Police Officer Matthew Wilson noticed a vehicle with a cracked windshield pass him on Miner Road in Prescott Valley, a suburb of the central Arizona city of Prescott.

He pulled the vehicle over and asked the driver if there was anything illegal inside, according to a narrative in a booking sheet of the August 2017 incident.

Robert Stapleton of Prescott, 28, a janitor at the local McDonald's, told Wilson he didn't know. Apparently, that was the truth — it was his friend's car. But he did have a handgun in the glove box, he told Wilson.

"This county — they're ridiculous on what they charge." - Harvel Golden, Yavapai County legal defender

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It's not illegal to conceal a loaded gun in Arizona as long the owner's not a prohibited possessor. But Wilson found Stapleton's answer strange, and searched Stapleton's pockets with the man's consent. The officer found a clear, plastic container that seemed to contain a "crystalline" residue, but there was too little of the substance to tell what it was. Next, Wilson called a drug dog to the scene.

Another gun turned up — a .22-caliber rifle. Still nothing illegal.

But then – whoo-hoo! – Wilson found a vape pen that the officer believed contained cannabidiol (CBD) oil.

Now the officer had a solid bust.

This is marijuana enforcement, Yavapai County-style.

Through interviews, inquiries about the county's practices, and a review of 90 court cases, a Phoenix New Times investigation reveals how prosecutors encourage police in the central Arizona county to hold a strict line on cannabis extracts. These tactics have resulted in injustices against cannabis patients and CBD consumers, who otherwise likely would not have been prosecuted. But defying the wishes of state voters on this subject has had an even wider impact, leading to the explosive appeals case now threatening patients and the state's entire medical marijuana industry.

For years, notorious marijuana prohibitionist Sheila Polk – now in her fifth term of office – has ordered strict enforcement of the state's law against "resin extracted" from cannabis plants. Possessing cannabis extracts is a Class Four felony like fentanyl, and subject to harsher penalties than possessing marijuana flower, a lesser Class Six felony.

Her office also routinely slaps medical-marijuana patients with the "narcotic" cannabis charge, even though cannabis extracts are the main ingredient in some of the most popular products in Arizona dispensaries, including THC vape pens, edibles, drinks, lotions, patches, shatter, wax, and hash oil.

It was Polk's office that busted Arizona medical marijuana patient Rodney Jones in 2014, charging him with felony cannabis resin for a thimble's worth of hashish, and arguing that he wasn't protected by the Arizona Medical Marijuana Act (AMMA).

The State of Arizona v. Rodney Christopher Jones case now has the state's entire medical-marijuana industry on edge.

A Yavapai County Superior Court judge agreed with Polk's interpretation in Jones, sending the valid medical-marijuana cardholder to prison for two years. In June, the Arizona Court of Appeals released its 2-1 decision upholding the conviction, declaring that the AMMA didn't address the felonious "resin extracted" from cannabis plants.

More than 176,000 patients and 130-plus dispensary owners and employees are waiting for the Arizona Supreme Court to decide whether it will review the appellate court decision on extracts. If the Court of Appeals decision stands, dispensaries would be required to remove products with extracts from their shelves. (Ironically, it's often the patients who are the most ill, like epileptics and cancer patients, who use such products.)

Following a request for public records to the Yavapai County Attorney's Office, Phoenix New Times studied the booking sheets and other court paperwork on 90 people arrested on suspicion of "narcotic cannabis" charges, and found several eyebrow-raising cases. These outlier cases show how a decision by the Arizona Supreme Court in the Jones case will affect enforcement of cannabis concentrates in Yavapai and other Arizona counties.

Maricopa County, the state's largest, isn't prosecuting extracts cases the same way. County Attorney Bill Montgomery would like to charge patients and CBD users with felonies, no doubt. But in 2014, Montgomery was sued by the family of Zander Welton, a boy whose serious seizures seemed to be helped by cannabis extracts. Maricopa County Superior Court Judge Katherine Cooper ruled that the Medical Marijuana Act does cover extracts. Montgomery didn't appeal her decision.

Montgomery's office and metro Phoenix police also don't target CBD sellers or, presumably, users. Vape pens with CBD oil are sold openly to adults without medical-marijuana cards at smoke and vape shops in metro Phoenix. CBD is sold online in all 50 states, and the U.S. Drug Enforcement Agency, despite some threats, has not taken action against it.

But in Yavapai County, unless and until the Arizona Supreme Court addresses the issue of extracted cannabis resin, medical-marijuana patients with extracts and CBD users remain in high risk.

Stapleton told Officer Wilson he got the vape pen from his friend, and that he used it to help with back pain. Wilson asked him if the vape pen contained THC, the psychoactive ingredient in cannabis plants, and how a "CBD oil high was different than regular marijuana."

Stapleton answered that it had a "low amount" of THC and that CBD did not give him "as bad of a head change."

Wilson also asked if Stapleton had a medical-marijuana card, and Stapleton answered "no." He wouldn't need one to buy or possess CBD oil in Phoenix, but as other Yavapai cases show, having a card wouldn't have mattered, anyway.

Records show that Wilson was a little confused about the CBD oil. The officer called Jonathan Hale, deputy county attorney, and asked him how he should write up a citation for CBD.

"Treat the CBD as marijuana instead of a narcotic," Hale told the cop.

Stapleton soon found himself booked into jail. Despite Hale's instruction to Wilson, Polk's office later charged Stapleton with possession of narcotic cannabis for the CBD oil, two counts of possession of weapons in a drug offense, and a charge of possession of paraphernalia for the vape pen.

After a plea deal, Stapleton was convicted in Yavapai County Superior Court a few months later of misdemeanor possession of drug paraphernalia for the vape pen. The other charges were dropped.

His court-appointed lawyer, Harvel Golden, a Yavapai County public defender, said a plea deal down to the paraphernalia charge is the most typical outcome for felony marijuana cases in Yavapai County. Golden didn't recall much about the 2017 case, but he looked up his notes on it. Like other cases, he said, the defendant agreed to a drug treatment plan that, when completed successfully, will result in the felony charges being dropped.

"This county — they're ridiculous on what they charge," Golden said. "They overcharge. And you can quote me on that. It won't be anything new for them — they've heard it before."

The vast majority of the 90 cases that New Times reviewed involved people who had no legal right under Arizona law to possess marijuana. New Times looked at only the 2017 cases, which were the most readily available from Polk's office, and which were the most likely to have been adjudicated by now. But similar busts have taken place this year, and will continue to be made unless the state's high court reverses the appellate decision.

Many of the cases involved bulk trafficking of marijuana, meth, and other drugs, with cops finding small amounts of cannabis extracts in the suspects' possession. Other cases involve Arizonans without medical marijuana cards who bought vape pens or shatter on the black market.

But two of the 90 arrests and prosecutions were for people who had CBD oil. Mitchell Aaron Brown of Prescott was also arrested and charged in 2017 with felony possession of narcotics for "a bottle of CBD oil." Brown had a small container of marijuana buds on him during his traffic stop, and a Prescott Valley officer wrote him up for that separately, under the lesser felony charge. But Yavapai County prosecutors ultimately charged Brown for the Class Four felony narcotic charge, plus a felony count for paraphernalia, presumably for the bottle.

The local NPR affiliate asked Polk for a September 20 article whether her office prosecuted people for CBD oil after a reporter witnessed such a possible prosecution in open court.

"Polk says it’s her policy not to prosecute CBD cases," reporter Will Stone wrote, quoting Polk that she was "not aware of any prosecution in the state for CBD."

Polk didn't return messages for this article. But when New Times pointed out the convictions of Brown and Stapleton among the released documents, the office acknowledged that it had prosecuted suspected CBD oil cases. It's not doing that anymore, according to Bill Hughes, the chief criminal deputy for the Yavapai County Attorney's Office.

The office "currently" will not prosecute possession of "likely" CBD oil unless there is additional evidence such as a lab report that proves the substance contains more than trace amounts of THC, according to Hughes.

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Bill Hughes, Yavapai County chief criminal deputy
Hughes said he wasn't sure when the office changed its policy. But he noted that while some products contain 0.3 percent or less THC (the industry standard for hemp-derived CBD products sold without need for a medical marijuana card), other products may be mislabeled as containing only CBD.

"A person cannot skirt the law by slapping a sticker on THC oil and calling it 'CBD oil' any more than he or she could rob a bank and call it a 'bank withdrawal,'" he said in an email.

He was unaware of other felony narcotic cannabis cases involving CBD out of the "tens of thousands of cases that have been prosecuted over the approximately 107 years that the Yavapai County Attorney’s Office has been in existence," he said.  But, he added, "Such cases may have happened."

Hughes emphasized that of 344 suspected narcotic cannabis cases submitted to the office by law enforcement agencies between January 1, 2016, and July 1, 2018, the office declined to bring that charge in 131 of the cases.

As with the 90 cases reviewed by New Times, it's likely that the majority of the 344 cases involved other, potentially serious criminal charges against suspects. But it's clear that Yavapai County has continued to prosecute valid medical-marijuana cardholders for cannabis extracts since the arrest of Jones in 2014.

In two other cases from the 2017 list of 90 cases, medical-marijuana patients were charged with possessing extracts that are sold commonly in state dispensaries.

One of them was Ashle Stuart, a 29-year-old mom from the small town of Cornville. She's a registered dispensary agent for a medical-marijuana business in Yavapai County, Harvest of Arizona, which acquired the previous dispensary she worked for, Yavapai Herbal Services. She's also a medical-marijuana patient, consuming primarily for her chronic pain. And no, she's not faking it. She has a medical port near her right shoulder to make it easier for intravenous fluid uptake, which she needs to help treat her "autonomic nervous system disorder."

Her Phoenix attorney, Sam Harbison, confirmed that Stuart has a legit diagnosis, and that she had brain surgery several years ago as a result of the illness. Stuart met with New Times in Harbison's office last week.

Stuart and her fiance, German Fritzler, had been working all day on October 13, 2017, she as a budtender and Fritzler as a trimmer in the dispensary's cultivation facility. He was covered in tiny bits of marijuana as they drove home that evening on Cornville Road. Fritzler's silver SUV had a burnt-out license plate light, and they got pulled over by Yavapai County Sheriff's Deputy Bea Carrillo, who told the pair that the car smelled of burnt marijuana. Carrillo found multiple containers of marijuana and pipes in the car, court documents show. Carrillo also found a "small rubber container which contained marijuana wax," a THC vape cartridge for Stuart's vape pen.

Carrillo suspected Fritzler was too impaired to drive. After taking them to jail, the deputy submitted a DUI-drugs charge for Fritzler, plus a possession of marijuana charge because a few of the loose pieces of marijuana had landed in a front pocket. Carrillo wrote up Stuart for the wax and paraphernalia, despite her valid Arizona medical-marijuana card and the dispensary receipt for the vape cartridge.

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A typical THC vape pen cartridge.
Stuart said she was booked into a "freezing" jail cell, denied her blood pressure medicine, and not released until 3 p.m. the next day. Soon, she was charged with two felonies. With the help of family members, she located and hired Harbison to help her fight what she felt was a bogus prosecution.

"Our position the whole time was that this should be dismissed," Harbison said.

The most logical tactic was to wait for the Arizona Court of Appeals to rule on the Jones case. Prosecutors went along with it for a while, "but they finally said no more" and set a hard deadline for a deferred prosecution deal, Harbison said.

Then came the June ruling in the Jones case, and it wasn't favorable to defendants like Stuart. She took the plea deal in July. The deferred prosecution deal forces Stuart to undergo probation, which includes drug treatment for three years. As long as she completes the program successfully, she'll be convicted only of one misdemeanor. Meanwhile, Fritzler agreed to a deal in which he pleaded guilty to one count of possession of marijuana, with the DUI and a paraphernalia charge dropped.

"It was an extremely tough decision," Stuart said about taking the plea deal instead of risking a felony conviction at trial. "I didn't feel comfortable pleading to something I know I didn't do."

For the next three years, Stuart has to check in at the county probation office once a month, and a probation officer also visits her home once a month. She must submit to urine testing three times a month at the local TASC drug treatment facility. Everything costs between $85 and $100 a month.

"The money part of it is nothing compared to the emotional stress," Stuart said. "The TASC workers treat me like I'm a drug addict."

Arguably, in Stuart's case, the whole system appears to be a farce: Stuart tests positive for THC each time she comes in, and that's okay, because she's legally allowed to continue using medical marijuana as a patient under state law.

Besides the CBD and patient prosecutions, other Yavapai cases among the 90 reviewed by New Times show that if any former patients or dispensary agents expect to get a break from law enforcement in Yavapai County for simple possession, they might be over-medicating.

Jordan Warren was booked into jail on April 14, 2017, after a Prescott Valley police officer stopped him for a cracked windshield and found three canisters packed with joints, another container with two grams of pot, and a canister of "wax." His medical-marijuana card had expired the day before.

Police sought felony charges of possession of marijuana and paraphernalia, plus possession with intent to sell, but he was ultimately charged with felony narcotic cannabis possession and paraphernalia. He took a plea deal to the paraphernalia.

Four other defendants, including one from California, reportedly had medical-marijuana status that had expired.

Also, two registered dispensary agents, who aren't allowed to possess or use marijuana personally unless they have patient status, were among those arrested in 2017 on felony extracts charges and later convicted. One of the dispensary workers, Kasandra Stout, is allowed to transport medical marijuana under Arizona law but was convicted with a plea deal after police found THC-infused honey in her vehicle.

Law enforcement agencies in Yavapai County, like the Yavapai County Sheriff's Office, seem more than happy to help with this hard line on concentrates. Although most of the arrests for concentrated cannabis were by Yavapai County deputies or Prescott Valley police, the Arizona Department of Public Safety also makes arrests for concentrates – but only in certain jurisdictions.

"The DPS is a statewide law enforcement agency and works in numerous jurisdictions. In circumstances where the law is not clearly defined or is subject to interpretation, troopers look to legal counsel and the prosecutors in the jurisdiction where they patrol for guidance," the Arizona Department of Public Safety stated in response to New Times questions about the agency's stance on extracts. "The legal parameters of the Arizona Medical Marijuana Act are not yet well-defined, including the definition of marijuana and whether that definition encompasses various substances such as hashish, cannabis, CBD oil, and THC oil.

"If a trooper encounters an individual with a valid medical marijuana card," the agency statement continued, "in possession of an allowable amount of marijuana as defined by the AMMA, no enforcement action is taken."

But notice the wording — no enforcement action is taken for "marijuana." If the substance is "cannabis," the state's unscientific name for extracted cannabis resin, enforcement action is, in fact, sometimes taken by DPS troopers. Like in the case of Adam Wanko.

Wanko, a 48-year-old Phoenix resident, had failed to keep up with the mandatory insurance requirement for his Cadillac, and on March 13, 2017, as he was driving on Interstate 17 north of Camp Verde, that mistake became a lot more costly.

A DPS trooper parked along I-17 spotted Wanko's white Caddy and pulled it over after running a routine check of the plate. Wanko soon found himself arrested, which shouldn't have surprised him since his driver's license had been suspended for failure to pay a previous fine for not having insurance. But he may not have expected what came next when the officer found his medical marijuana.

Robert Mandel, attorney
Wanko told the trooper he had an Arizona medical-marijuana card and some marijuana in the vehicle. Inside the center console was a small, black container with a symbol of a marijuana leaf on it; inside that was "a small amount of yellowish brown wax-like substance that my training and experience led me to believe was marijuana or cannabis oil," the trooper wrote.

Following his arrest, Wanko received a notice from Polk's office: Besides the misdemeanor suspended license charge, he was also hit with the felony charge for narcotic cannabis. He pleaded not guilty.

Wanko's case is still pending as of mid-September, having been delayed several times in anticipating of a decision in the Jones case. Wanko and his attorney advised the court during a hearing a few months ago that "they are continuing to track the Rodney Jones case. ... They are awaiting an opinion in that case as it will have an impact on this case."

Wanko is not a model citizen, it's true. He previously served prison time for identity theft. But that means the Arizona Supreme Court decision on the Jones case will be especially important to him: If the Jones verdict is overturned, Yavapai no longer has a case against Wanko. But if it's upheld, Wanko may end up back in prison for something that wouldn't have merited an arrest or prosecution in Phoenix.

He's not the only the one waiting for that decision. Mikel Weisser, director of the Arizona chapter of the National Organization for the Reform of Marijuana Laws, said he knows of pending extracts cases in four other counties. Still, Yavapai is "the leader of the charge," he said.

Robert Mandel, one of the attorneys who recently filed a petition for review of the Jones case to the Arizona Supreme Court, said he's heard of at least two such cases, including one in Pima County. Pima County Attorney Barbara LaWall didn't return a message asking about the case.

The petition for review is not just about the Jones case, Mandel said, "it’s also about ensuring that all the rest of Arizona’s cardholders, many of whom were instantly transformed into felons when the court of appeals released its decision, will continue to have access to the plant’s medicines irrespective of form and method of consumption, as the electorate intended.”
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