phoenixnewtimes.com PHOENIX NEW TIMES MARCH 10TH– MARCH 16TH, 2022 State Licensed Dispensaries & Doctor Certifications | CANNABIS | Pot from p 61 case, which is still making its way through the courts, was not that cut and dried. According to Dean, California truck driver Brandon Tristin Willis was passing through a checkpoint on the Arizona-Utah border. He exited his vehicle at the check- point, and when he went into the facility’s office, Arizona Department of Transportation officials smelled the odor of marijuana on his clothing. A former Arizona Department of Public Safety officer working for ADOT searched the vehicle and found about 6 grams of marijuana in Willis’ possession. Under the SSAA, the odor of marijuana cannot be used as the basis for reasonable suspicion or probable cause to search a vehicle, unless the search is part of a DUI investigation. “In this case, it’s clear it was not a DUI investigation,” Dean told New Times. “I interviewed the officer who agreed that at no time did he have any reason to think that the driver was impaired, never did field sobriety tests or anything like that.” Dean then filed a motion to suppress the evidence, arguing the vehicle was unlawfully searched in violation of the Fourth Amendment of the Arizona Constitution and the SSAA. “The judge wrote it as if it were a federal brief in the district court,” Dean said. “I think the idea is maybe they can just start enforcing the entire federal Controlled Substances Act and all of a sudden they can undo legalization. They can say, ‘Now we’re going to start enforcing possession of marijuana, not as a state offense, but as a federal offense in state court.’” Dean thinks he has a good argument, armed with U.S. and state Supreme Court decisions to back him up. “There’s law too, that talks about this from the United States Supreme Court, and other courts, that to the extent that you can enforce a federal law in a state court, you have to do so in compliance with that state’s law,” he said. “You don’t get to convert that state court into a federal court: It’s still a state court and has to follow state law.” Dean’s motion fell on deaf ears though, as the judge ruled that federal law trumps state law and the court determined the SSAA did not apply. Jonathan Udell, cannabis attorney at Rose Law Group and political director for Arizona NORML, believes the state does not have the power to enact such funda- mental changes to Prop 207 through the courts. As a voter initiative, amending the law would require legislation to be proposed and passed by both houses of the Arizona Legislature. Any changes would have to be with the intent to “further the intent of the initiative” or it would be unlawful. “With these commercial vehicle cases, the state is really grasping at straws in a bid to continue its unjust persecution of cannabis consumers,” Udell wrote in an email to New Times. “Although law enforcement may not like it, Proposition 207 allows adults ages 21 and older to possess marijuana in Arizona ‘notwith- standing any other law. ... neither the legis- lature nor government bureaucracies have the power to override voter initiatives.” Dean filed an appeal in the Mohave County Superior Court in Kingman. Although he prevailed in Pinal County, the case there had some troubling moments for Dean. “They don’t consider the truck to be federal property, but there’s no question that the interstates are owned and oper- ated by the states they’re in,” he said. “A technical reading of this would mean the state could prohibit all transportation of marijuana under that provision.” Dean said the judge in the Pinal case asked the prosecutor directly if she agreed with that interpretation, and Dabbene confirmed that was her belief. “This provision, technically read, could indicate it would include interstate [but] that can’t have been what the voters intended, because it would effectively give the legislature to power to completely undo 90-plus percent of the law,” Dean said. “You wouldn’t even be able to go to a dispensary, buy, and drive home. “Dispensaries wouldn’t be able to trans- port between their cultivation facility and their retail outlet, or between one another.” What it comes down to for Dean, though, is that the fight for the rights of marijuana users in Arizona is far from over, given the whims of the courts and the determination of prohibitionist forces. Randal McDonald, supervising attorney at the Post-Conviction Clinic at Arizona State University’s Sandra Day O’Connor College of Law, agrees that Prop 207 protections should apply, but noted a lot of the specifics of enforcement are still up in the air. “There are still some ambiguities in the statute,” he said. “In Arizona, you can be charged with the sale of marijuana, but more often what you see is that you’re charged with possession for sale of marijuana: [Unauthorized] sale of marijuana is still not allowed, but possession is okay. So the ques- tion becomes is it possession for sale?” Dean has been fighting for the rights of cannabis users since 1993, and is on a mission to let the public know that, despite the passage of favorable cannabis laws, the matter is far from settled, due to the scat- tershot way the U.S. is legalizing the plant. “Unfortunately, the law has given everyone a false sense of confidence that what they’re doing is either legal or they know it’s not, but believe law enforcement isn’t going to bother anybody because marijuana is legal and they don’t care anymore,” Dean concluded. “And that’s a problem.” 63
