The Issue
On Sunday, March 1, 2020, El Paso Police were called out to an apartment occupied by C.S. due to the “smell of marijuana”. C.S. is a patient in Texas that was born with kidney failure and has been on dialysis his whole life. He also suffers from seizures.
This past Sunday, three El Paso Police officers showed up at C.S.’s apartment for complaints of marijuana odor. C.S. told the officers that he smokes hemp flower to help treat his medical conditions. C.S. uses hemp flower over cannabis with higher concentrations of THC because of the legality. The father of three fears the legal repercussions it could have on his family.
Hemp flower became legal under Texas law with Governor Abbott signing House Bill 1325: The Hemp Farming Act in 2019. This bill made cannabis that was under the 0.3% THC threshold legal to possess and consume in Texas.
After realizing why the officers were at his apartment, C.S. started recording the interaction. C.S. explained to the officers that he uses hemp flower to treat his medical conditions. After this, C.S. showed the officer the packaging. The package was marked to show that the flower contains under the legal threshold of the 0.3% allowable THC limit.
Detainment
Once the officers read the packaging, they put C.S. in handcuffs. In the video, you can hear an officer say “it does include some THC.”
At that time you hear a female officer instruct C.S. to give his phone to his wife and to turn around. You can see them place C.S. in handcuffs as they ask C.S’s wife to get his shoes.
Once in handcuffs, the officer starts explaining to C.S. what they were going to do. They told C.S. that because “it has a small percentage” they were going to take him to the substation and present the case to the District Attorney.
After C.S. explained to the officers that he was disabled and undergoes dialysis daily, the officers put on rubber gloves which C.S. said made him feel “like he was diseased”. Shortly after this, two El Paso Police officers escorted C.S. away as one officer stayed behind explaining to C.S.’s wife what was going to happen. While C.S. was being escorted to the officer’s car he asked the female officer if he could put his shoes on. The female officer in the hat replied “No”.
In the video, it is a little hard to hear, but you can hear the officer telling C.S.’s wife that they are “going to take him to the substation and present the case to the District Attorney. If the district attorney’s office declines to take the case, we will allow him to make the phone call [to be picked up].”
The Officers Know
After that, you can vaguely hear the officer state that he understands the wife’s concerns and that “it’s marijuana and there is a lot of obstacles and it should be legal but right now in the State of Texas there is no way to measure the THC quantity as far us [the police]…”
C.S.’s wife stated, “even if you were to test it would be under the limit and we know that”. The officer can be heard saying “even if we were to test it in our lab, they don’t measure THC content right now. It is just whether it’s present or not. It’s marijuana for sure, it’s just a matter of how much THC is in it”. C.S.’s wife replies, “It’s CBD” and the officer follows up with, “It’s cannabis.”
Our Rights
In the United States, we have what is called the Presumption of Innocence. The Presumption of Innocence is a basic right of anyone accused of a crime. Innocent until proven guilty. It means that those accused of a crime are innocent until the government can prove otherwise. This leaves the burden of proof on the state. The state must prove that you are breaking the law.
Although the Constitution of the United States does not cite it explicitly, the presumption of innocence is widely held to follow from the Fifth, Sixth, and Fourteenth Amendments. The case of Coffin v. United States (1895) established the presumption of innocence of persons accused of crimes.
The Problem
In this case, it is up to the state and the police to prove that a law has been broken. It is legal to purchase and possess a hemp flower that is under the 0.3% THC threshold. Simple as that. If no crime was committed why was C.S. detained and taken until officers called the DA? Where is the presumption of innocence here?
The officers were given the product packaging that backed up C.S.’s claim that it was legal hemp flower. The incident should have ended there and the three officers should have gone on their way. Did you catch that? It took 3 officers to respond to this “marijuana odor” call. It took three officers off the street to harang someone who uses hemp flower to medicate; a major problem.
Currently, our District Attorney continues to prosecute without testing plant material to determine if the plant material is legal or illegal. This means that they have no way of proving who is and is not breaking the law. Our District Attorney is out-of-hand. Luckily, El Paso can expect a new district attorney in 2021 and we will know who after the election on “Super Tuesday.”
What A Waste
This does not make the community safer, in reality, it makes it less safe because you are wasting police resources for this type of call. The El Paso Police Department already has a problem with response times being so slow and this is just another scenario that shows why. It took 3 officers to respond to this call. I assume there weren’t any domestic violence calls or any other calls that posed a threat to our community at the time since 3 officers responded. I find that hard to believe though.
A Sensible Solution
There are a few sensible solutions that can put an end to these types of problems. The easiest and most sensible is to stop arresting for misdemeanor amounts of cannabis.
How can you arrest someone for something you cannot tell whether it is illegal or not? A cite and release policy would work wonders here. I fail to see how a police department can arrest someone when they can’t tell if the flower is illegal or not. Not even the district attorney or crime lab can determine if the flower is legal or illegal at this time.
When the crime lab can determine the THC levels, the Texas Department of Public Safety has already said that it will not be testing misdemeanor amounts because it did not get funding to do so.
The District Attorney’s office will have to pay a private lab to test these misdemeanor amounts. That can and will come with a hefty price. This would be a gross misuse of taxpayer funds, especially when the majority of Texans agree that we should not be arresting people for cannabis.
Cite and Release
Cite and Release is a policy that must be implemented in El Paso. This will bring numerous benefits including ending arrests of nonviolent offenders, ending the misuse of police resources, and ending the outlandish arrests of those that are complying with current state law while saving taxpayer dollars as well.
Once cited, the charge should be dropped in court because the prosecutor can’t tell if the plant material is legal or illegal. Even when the Texas Crime Lab has the ability to test plant material for THC quantity, they will not be testing misdemeanor amounts. The District Attorney will have to send the material to a private lab for testing, and that can come with a hefty price tag.
No one should have to go through what C.S. did, especially not a patient. Especially not someone abiding by the law. Nobody possessing any type of cannabis.
All For Nothing
Once arriving back at the officer’s unit, they called the District Attorney on duty. The District Attorney advised the officers to release C.S. and confiscate the legally purchased hemp flower. Thus proving even more to be a waste of officer time and resources over something that is legal in the State of Texas.