Mike Smith wants his marijuana back.

When that will happen is the question, following the March arrest and June dismissal of a case against the Sedona man. He is legally allowed to possess medical cannabis under Proposition 203, which Arizona voters approved in November.

Cottonwood Police Department officers arrested Smith on March 5 for possession of 15 grams of cannabis, despite Smith having Montana identification required under Arizona law allowing him possession of four times that quantity.

Most out-of-state patients enjoy reciprocity in Arizona and are defined as “visiting qualifying patients” if their cards were issued for medical conditions Arizona cannabis laws recognize.

After three months of legal wrangling, on June 15, city of Cottonwood prosecutor Terry Sutton dropped the charges against Smith citing his legal right to possess cannabis.

The city of has not yet returned Smith’s cannabis.

Smith’s Case

A contractor for 25 years, Smith suffers nerve damage in his arms and uses medical cannabis under Montana law, which voters there legalized in 2004.

A self-described snowbird with a home in West Sedona, Smith runs a medical marijuana clinic that helps qualified patients apply for cannabis possession in Montana. The clinic also operates in Nevada and Alaska.

Since Arizona approved the use of medical marijuana in November, Smith expanded operations of his medical clinic to this state with offices in Glendale, Paradise Valley and Flagstaff. The clinic helps patients who qualify for medical marijuana file the proper Arizona Medical Marijuana Program paperwork with the Arizona Department of Health Services.

Along with a medical doctor and an office administrator, Smith typically conducts patient evaluations and paperwork filings on Friday and Saturday in the Phoenix area and Sunday and Monday in Flagstaff. The clinic also conducts evaluations at other locations around the state.

On March 5, Smith held one of these clinics in the rented conference room of a Cottonwood hotel.

Around 1:30 p.m., a police officer arrived at the hotel, after an unnamed friend of CPD Police Chief Jody Fanning told him about a newspaper ad for the clinic, according to the police report.

The officers were cordial, Smith said, as he showed them information regarding his legal possession under the new laws. Smith had also spoken with a lawyer, according to the police report.

He gave the officers his medical marijuana card from Montana because his Arizona card had not yet been issued.

Smith now carries his new Arizona card and his recently renewed Montana card as well as an Arizona ID. Some states permit marijuana use for medical conditions that Arizona doesn’t recognize. These patients are not permitted to possess cannabis in Arizona even with an out-of-state card.

A sergeant also questioned Smith about not having a business license, but Smith said one wasn’t required.

The police left but a sergeant and detective from the Partners Against Narcotics Trafficking task force arrived. They questioned whether Smith possessed any cannabis.

“I said, ‘Of course I do, I’m legal,’” Smith said.

According to the police report, Smith asked the officers if they would like to see his cannabis, then walked them to his car. Smith had roughly 15 grams of cannabis and kief — sifted pollen from a cannabis plant — stored in a lockbox. Under the new marijuana laws, Smith is permitted to carry 2.5 ounces, or about 71 grams, for his personal use.

Smith said the officers waited for a call back from Sutton and arrested him for possession of cannabis. The police report states the officers also checked with Fanning, Sutton and the Yavapai County Sheriff’s Office.

According to the citation, police arrested Smith and confiscated his cannabis under Arizona Revised Statute §13-3405-A1: “A person shall not knowingly possess or use marijuana.” He was released a short time later.

Cottonwood City Attorney Steve Horton said Sutton’s decision was based on his reading of voter-approved Proposition 203 and his belief the law would not be in effect until 120 days after the vote was canvassed, thus Arizona residents could not apply for legal possession until after Arizona Department of Health Services approved its rules on April 14.

However, because the proposition was a citizen-based initiative, Horton said, it went into effect immediately after the Nov. 2 vote was canvassed, permitting out-of-state qualifying patients to possess cannabis.

Horton said the police officers were also not in possession of a scale to measure the cannabis’ weight and decided to let the crime lab determine if the weight was under the legal limit.

The issue of whether a certain amount of cannabis is within the legal possession limits will be a challenge for law enforcement to tackle as medical marijuana becomes more commonplace, he said.

“I think they’ll probably carry a small scale or know the weight through training,” Horton said. “I think training and experience will help with that.”

Fanning did not return phone calls by press time.

Sutton asked the court to dismiss Smith’s case with prejudice — meaning prosecutors can not file charges again — writing “the defendant provided allowable proof of eligibility to possess medical marijuana in the state of Arizona, which was below the 2.5 ounces allowed by law. Defendant provided allowable proof of being a visiting qualifying patient from the state of Montana.”

After Cottonwood Municipal Judge Douglas LaSota ordered the charges dismissed, Smith’s Flagstaff attorney, Tom Dean, requested July 13 that Sutton return Smith’s confiscated cannabis.

“We are in possession of something that we obtained — through a good-faith seizure — now we have this stuff that under state law is lawful to possess, but is still a crime under federal law,” Horton said.

Smith said he spent roughly $2,000 in legal fees to fight the charges against him and to recover his cannabis.

On July 26, Dean filed a motion in Cottonwood Municipal Court for the return of Smith’s property.

A Test Case

Dean said his client’s arrest is a test case of the new laws. Dean handled one of the first medical marijuana patient cases in Arizona, a California patient who was arrested in Mojave County.

After showing proof the patient was in complete adherence as a visiting qualifying patient, the Mojave County Attorney’s Office also agreed to drop the charges.

“Without exception, in every single jurisdiction in the state of Arizona, it’s like starting from scratch,” Dean said. “It seems like prosecutors are in denial about it.

“That’s what happened in Mr. Smith’s case. The prosecutor did not believe that there was a medical marijuana defense. We got bogged down in the details, but the prosecution agreed to file a motion to dismiss.”

The process has become a pattern for Dean’s defense of his client’s rights to possess. Dean said he presents prosecutors with all the evidence regarding his client’s legal possession and offers prosecutors an opportunity to drop the charges rather than file with the court.

“It’s a slightly quicker process,” Dean said.

Dean currently has another case pending in Camp Verde Municipal Court with a Hawaii card carrier who qualifies in Arizona.

Returning the Marijuana

Also in question is Smith’s 15 grams of cannabis. He is legally allowed to possess it and Cottonwood police are required to return wrongly seized property under state law, but returning marijuana would technically be a crime under federal law.

Dean said most prosecutors and law enforcement are unwilling to return confiscated cannabis to legal possessors under what he says is the mistaken belief they could be charged with aiding and abetting distribution under the Controlled Substances Act.

Horton said the marijuana was confiscated in a good faith seizure even though charges were later dropped.

Dean said the new law specifically addresses his client’s legal right to possess medical marijuana and related paraphernalia.

Horton said while Smith is allowed to possess cannabis, the municipal employee returning it to him may be committing a crime under federal law, which still views marijuana as a Schedule I controlled substance.

A joint lawsuit filed in federal court by Arizona Gov. Jan Brewer and Attorney General Tom Horne makes the same argument regarding ADHS employees who may issue licenses to medical marijuana dispensaries.

Smith said state health employees don’t deal directly with cannabis and the law doesn’t apply.

Dean goes one step further, however, and says state and municipal employees are protected under Section 885 D3 of the Controlled Substances Act, which specially grants immunity from federal laws if law enforcement or officials are acting in compliance with state and local drug laws:

“Immunity of federal, state, local and other officials: Except as provided in sections 2234 and 2235 of title 18, no civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any state, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.”

Dean writes in his motion the employee would not be liable as “an aider and abettor” by handling the marijuana. The aiding and abetting wording pertains to conspiring to return drugs for purpose of participating in profitable venture. He writes no one would accuse a city employee of conspiracy by simply returning the property.

Dean also cites a California ruling protecting doctors from prosecution by granting them amnesty from aiding and abetting a possible violation of federal law when they write prescriptions for patients to use medical marijuana.

The provision was successfully used to shield police in Portland, Ore., from federal prosecution in returning marijuana in 2002, he writes.

Dean writes police cannot hold illegally confiscated property indefinitely as it would violate Smith’s constitutional rights right to due process under the 14th Amendment.

Horton said the law gives immunity from being charged with aiding and abetting, but is less clear whether they are committing a crime under federal law by returning cannabis.

“This is something Terry [Sutton]’s doing. He’s looking into the federal law,” Horton said.

“We have to ask, ‘are we facilitating the commission of a crime by returning’ or ‘are we facilitating a crime by not returning it,’” Horton said.

Brewer and Horne’s case regarding a similar issue likely won’t be answered by federal district court, Horton said,

“It’ll likely go to 9th Court [Court of Appeals] for a ruling,” Horton said. “I would hope and expect that it would.”

Dean said he has asked for law enforcement to return marijuana before, but it has not yet happened in Arizona. Smith’s case, however, may set a precedent.

Legal Possession

Up until the 1920s, cannabis was a legally prescribed drug in the United States. Smith has a collection of antique cannabis medical bottles sold by major pharmaceutical companies at the time.

Currently, Arizona recognizes the medical benefits of cannabis for cancer, glaucoma, HIV and AIDS, Hepatitis C, amyotrophic lateral sclerosis or Lou Gehrig’s disease, Crohn’s disease, Alzheimer’s disease, cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures including epilepsy, and severe or persistent muscle spasms including multiple sclerosis.

Under Arizona law, patients or their registered caregivers may obtain up to 2.5 ounces of cannabis every two weeks from a registered nonprofit medical marijuana dispensary.

If the patient lives more than 25 miles from the nearest dispensary, the patient or caregiver may cultivate up to 12 marijuana plants.

Caregivers can have up to five registered patients. If a caregiver is also a patient, they’re permitted a maximum of 15 ounces and 72 plants.

Smith said his clinic registers roughly 40 people a day. To obtain a medical marijuana card from the state, patients must show a medical need from a licensed physician and fill out paperwork with the state. Smith’s company and other medical marijuana clinics streamline the filing process.

“We’re for true medical patients,” he said. “You must have a qualified medical doctor. If you don’t have the right paperwork we can’t help you.”

If a patient thinks they qualify, the first step is to speak with his or her family doctor for a medical opinion.

If a patient’s doctor declines to prescribe medical marijuana, Smith’s doctor is available to write a prescription, but the patient must have his or her medical records. Patients can request their medical records and if they qualify under Arizona law, can receive a prescription from Smith’s doctor.

“But we don’t dispense cannabis; we don’t have dispensaries,” Smith said.

Smith said his clinic recommends cannabis be consumed in edible or vaporized form because the ingested quantity can be properly measured.

If and when they open, dispensaries will likely sell marijuana that can be smoked, vapored or eaten in baked products.

When dispensaries will open is still unknown due to Brewer and Horne’s pending lawsuit.