February 28, 2020

The line between trafficking and transporting

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Last August, about four miles east of theNew Mexico-Arizona border, a New Mexico State Police officer clocked a white van heading east going about 12 miles per hour over the posted speed limit in a construction zone. According to the officer’s report, once he pulled the van over and approached the passenger-side window he detected “an overwhelming odor of marijuana.” In fact, the officer wrote in his initial report, “The smell was so strong that I had to move back a bit.” 

The passenger of the van, Cevin Stambough, told the officer he was a New Mexico medical cannabis patient and had about five grams of cannabis on him. Stambough showed the officer the small amount of cannabis, but the officer told Stambough the smell of cannabis was too strong to be the result of just five grams. The officer was right. After a search warrant he reportedly found “10 individual plastic bags of marijuana” along with roughly 2 pounds of cannabis concentrate or extracts. All together, the officer found about 14 pounds of cannabis or cannabis derivatives. Stambough claimed ownership of everything and is now facing a second degree felony distribution charge in a state district court. 

The 14 pounds Stambough is accused of trying to illegally sell is well beyond the eight ounces the state’s Medical Cannabis Program allows patients to possess at any given time. But the case still raises questions about how law enforcement agencies around the state determine whether a registered patient is transporting their medicine or trying to illegally sell cannabis. It also raises questions about how the New Mexico Department of Health works to educate law enforcement officers about medical cannabis rules and regulations that are not specified in statute. 

The line between legal and illegal

Chief Deputy District Attorney R. David Pederson is the lead prosecutor in the state’s case against Stambough. Pederson told NM Political Report that the cannabis that Stambough claimed was his was “substantially more product than what is allowable under [DOH] regulations.” The large amount of cannabis combined with other factors, Pederson said, led to the felony charge.

“Taking out the medical cannabis issues about it, when officers make an arrest, they look at a whole bunch of factors,” Pederson said.

He said some of those factors can include how the cannabis in question is packaged or if a suspect is acting in a manner consistent with selling illegal drugs. 

“There’s just a myriad of factors,” he said. “So it really is a fact-intensive kind of assessment, on a case-by-case basis, as to whether you denominate it as a simple possession, or is it something more than that?”

Some of the indicators in Stambough’s case, according to the police report, was an admission to having five grams of medical cannabis, the strong smell of cannabis,  and what the arresting officer viewed as an attempt by Stambough and the driver to disguise illegal cannabis sales as another form of legitimate business. Pederson said he could not talk about the specifics of the state’s case against Stambough, but he did say the driver’s reported admission that he was coming traveling from Phoenix,“has some bearing on some of these issues.” 

Stambough’s attorney did not respond to inquiries from NM Political Report.

Still, Pederson said, the intersection of enforcing state drug laws and the DOH’s rules and regulations on medical cannabis creates plenty of questions. He said his office has not seen many cases like Stambough’s, but that he anticipates more.  

“My speculation is we’re going to see more of this until and unless the Legislature clarifies some of these aspects of it,” Pederson said. 

During the legislative session that ended earlier this month, lawmakers tried to pass a handful of laws to shore up the state’s Medical Cannabis Program, but ultimately the only cannabis bill that was signed into law was one that specified only New Mexico residents can enroll in the medical program. 

Regardless, the DOH and the Medical Cannabis Program already have specific rules and regulations regarding how much cannabis a patient can buy or possess at any given time. 

Travel light

In Stambaugh’s case, the 14 pounds of cannabis or cannabis products he claimed ownership of is arguably much more than the Medical Cannabis Program allows patients to possess at any given time. 

The state’s cannabis law specifies that medical cannabis patients are protected from criminal charges or penalties if what they have “does not exceed an adequate supply.” The same law vaguely defines “adequate supply” as “an amount of cannabis, in any form approved by the department” that is “determined by rule of the department to be no more than reasonably necessary to ensure the uninterrupted availability of cannabis for a period of three months and that is derived solely from an intrastate source.” 

The Medical Cannabis Program’s rules and regulations define an adequate supply as 280 “units.” In this case, a unit roughly translates to a gram of dried, smokable cannabis or to .2 grams of a cannabis derivative. The program’s rules dictate that patients can buy up to 230 units in a rolling three-month period. Likewise, patients can possess up to 230 units at any given time. 

A patient with a Personal Production License (PPL), or a home grow license, is still limited to 230 units of usable cannabis. PPL holders are also limited in what they can grow: four mature female plants and up to 12 seedlings.

Any medical cannabis patient enrolled in New Mexico’s Medical Cannabis Program can give, but not sell, up to two ounces of medical cannabis to another enrolled, qualified patient. 

A spokesman for the New Mexico State Police told NM Political Report that officers do not have a specific policy regarding medical cannabis, except to follow state law. 

“We just go off the applicable criminal code,” Officer Dusty Francisco, a state police spokesman said. 

No one from the Medical Cannabis Program was made available for questions about how they recommend medical cannabis patients transport medicine that was grown by a PPL holder.