Arkansas police began seeing something on the street last month that they'd never seen before -- legal pot.
What would have at one time been an automatic citation or trip to jail may now simply be a quick verification of a patient card.
Police agencies agree that medical marijuana adds another layer of complexity to traffic stops and other routine interactions with the public, and departments across the Natural State are contemplating how to deal with a new set of factors to determine whether someone is in legal possession of cannabis.
Sgt. Anthony Murphy, a spokesman for the Fayetteville Police Department, said officers there will "enforce the law the way it is written," and a patient who isn't carrying his patient ID card could be cited or arrested. If an officer smells marijuana, Murphy said that gives an officer probable cause to search a vehicle regardless of whether the driver is a verified patient.
"So have your card, and don't be shocked if your vehicle gets searched if it smells like marijuana," Murphy said.
Some disagree with that interpretation of the law.
State voters approved Amendment 98 to the Arkansas Constitution in 2016, and Arkansas last month became the 33rd state where marijuana can be legally purchased for medical use.
The amendment shields qualified patients and designated caregivers from arrest as long as they are carrying their medical marijuana registry ID cards and complying with the other provisions of the amendment, such as possessing no more than 2.5 ounces of usable cannabis at any one time.
The amendment also specifically prohibits operating a car while under the influence of marijuana, and it bars the use of cannabis in public places.
If someone is arrested and charged with a marijuana offense because he was not in "actual possession" of a registry ID card, the patient may have the charge dismissed by a court under Amendment 98 by demonstrating that he has a registry ID card.
Patients aren't required to provide police with a copy of their medical marijuana registry ID cards, but Bill Sadler, a spokesman for Arkansas State Police, encouraged qualified patients to provide the cards when asked in order to smooth the interaction.
"Why not show it?" Sadler said.
David Couch, the Little Rock attorney who drafted Amendment 98, agreed. He said police have every right to make an arrest or issue a citation for marijuana-related offenses if the person won't verify that he is a qualified patient.
"If you're a patient with your card and you don't show it to a cop, you need to be arrested," Couch said. "That's a ticket for being a dumbass."
Arkansas State Police distributed a slideshow to state troopers last month on how to proceed with legal cannabis now on the streets. The first dispensary opened May 10.
It outlines what is and isn't allowed under Amendment 98. It also encourages troopers to report patients to the Arkansas Crime Information Center if the trooper has reasonable suspicion to believe that the patient's drug use could lead to an arrest for driving under the influence, public intoxication or smoking marijuana in public; or if the person admits using marijuana in the past year.
The Arkansas Crime Information Center reports that drug use information to the National Instant Criminal Background Check System, which is mostly used to verify if a person is eligible to buy guns. Such a report can also cause a person's concealed handgun carry license to be revoked under Arkansas law, according to state police.
North Little Rock police are developing a policy for medical marijuana enforcement, and it plans to schedule training for all officers soon, said a department spokesman, Sgt. Amy Cooper. Cooper said officers will be checking to ensure that patients comply with Amendment 98.
"When in possession of medical marijuana always have the appropriate registry ID card and only carry the amount (2.5 ounces or less per patient) of medical marijuana allowed under the Arkansas Medical Marijuana Amendment," Cooper said in an email.
Alcoholic Beverage Control Enforcement agents have provided training to more than 1,000 Arkansas law enforcement officers in recent months, spokesman Scott Hardin said.
There are still some cloudy aspects to drug interdiction with medical marijuana now on the street.
"NEA Report," a Jonesboro-based online news outlet, reported that the Jonesboro Police Department's medical cannabis policy initially required patients to keep medical marijuana in the packaging they purchased it in from a dispensary. However, the department soon changed its policy to require only that it be kept in a child-proof container.
"While not required the product remaining in the initial packaging would certainly make a traffic stop much smoother for all parties," Hardin said.
The General Assembly passed a 2017 law requiring medical marijuana to be kept in child-proof packaging, but that law didn't include a penalty. Couch said it's unclear what the enforcement of that law will look like since no penalty was contemplated. He noted that it was a good provision, and the General Assembly may want to include some type of penalty with a severity level similar to a seat-belt ticket.
Couch also disagreed with the conclusion of several law enforcement agencies that the odor of marijuana gives them a right to search a qualified patient's vehicle. If there are signs the patient is driving under the influence, he said, they could search the vehicle only after the person failed a sobriety test.
"A car could smell like marijuana if the person had smoked it earlier at their house, then got into the car," Couch said, adding that the smell doesn't necessarily mean that the person is guilty of driving while intoxicated.
Sadler, the state police spokesman, said the presence of medical cannabis adds more difficult discretionary decisions on law enforcement officers.
"There's lots of interesting questions, and the [Arkansas Supreme Court] may have to answer them at some point," he said.
There's already been at least one arrest of a qualified patient. West Memphis police arrested Tommie Burnette Sr. last month for possession of marijuana, despite his status as a registered patient, according to a Memphis television station's report.
Burnette, according to the report, was arrested after an officer pulled him over for a missing tag light. The officer smelled marijuana, and Burnette consented to a search after providing his registry ID card.
He was arrested after the officers found 1.5 grams of marijuana in a clear bag that wasn't child-proof.
While some departments have reached the legal conclusion that a patient forfeits all of his immunity under Amendment 98 if he drives while under the influence or stores the drug in a non-child-proof container, Couch said that is a stretch and a "tortured" reading of the law.
He agreed with Sadler that a case may make its way before the state's high court in the next few years, but he hopes it won't matter.
"I think in a couple of years [cannabis] will be legalized in Arkansas, and we won't have to worry about it," Couch said.
SundayMonday on 06/09/2019
Print Headline: Pot cases put Arkansas police in ticklish situations