There are more than seven six months until recreational pot use becomes legal in Oregon, but Portland police are getting a head start on our new reality.
Following the example of District Attorney Rod Underhill, the police bureau has now conceded that small-time marijuana charges that will become legal July 1 can be dropped. The decision, relayed by Police Chief Mike Reese to the county's head criminal judge, will largely eliminate a contradiction that emerged after Underhill decided, similarly, to stop prosecuting some pot charges last month, following the passage of Measure 91. But it definitely doesn't mean your pot is safe around Portland cops.
"Marijuana in any amount (absent of a medical marijuana card) should be seized; the subject should be given a property receipt and a special report should be written," Reese wrote in a bureau-wide memo on December 12, exhorting officers "to use discretion, good judgment and common sense when encountering a person in possession of marijuana."
As we've reported, the DA's decision to stop prosecuting Measure 91-covered crimes did not address the lowest-level pot offenders, because prosecutors typically have no say in cases that involve mere violation (as opposed to criminal charges). That meant a person caught, for instance, with a dime bag could have faced hundreds of dollars in fines, while another person who was found with a dime bag but also cited for an actual crime would have the possession violation tossed.
Reese's decision will change that, but he's also not going quite as far as Underhill's office. Once Measure 91 passed, prosecutors dropped 21 active cases involving pot violations. But it distinguished those cases based solely on the charges filed. Reese's decision, according to Multnomah County Chief Criminal Judge Julie Frantz, is based more on the conduct behind the charge.
"Chief Reese has advised that 'if it appears from the officer's notes that the violation involved conduct that will be legal after July 1, 2015, that the court will dismiss the case,'" Frantz wrote in an email. "This statement by Chief Reese on behalf of the city enables the Multnomah County Circuit Court, to the extent the judge in any given case has access to the officer's notes, to dismiss those cases which fit the criteria announced by Chief Reese as the city has elected not to prosecute those cases."
As of November 14, there were 74 open cases involving marijuana violations and no associated criminal charge, according to records released to the Mercury by the Multnomah County Trial Court Administrator's Office. Some of those, under the police bureau's current thinking, should be tossed.
As a for instance, take the case of 21-year-old Joshua Worley, who was skateboarding downtown October 14 when cops took issue with him jaywalking near the MAX tracks. That concern spiraled quickly into a forceful arrest in which Worley's nose was bloodied. Cops found a bag of pot and pipes on him. An arrest report [pdf] shows Worley wouldn't have been breaking the law under Measure 91. The case is still open, but the pot possession charge will presumably be tossed.
Still, a significant portion of pot possession violations arise differently: from cops or private security officers in the downtown Clean and Safe zone coming upon people lighting up in public. Since that still won't be legal in July, Reese's decision wouldn't give judges the green light to toss those cases. That doesn't mean they won't be cleared, though. The Mercury's found cases of defendants being caught smoking pot in public—an offense clearly detailed in police records—having their charges dismissed by judges nonetheless.
For instance, on November 14, Multnomah County Circuit Judge Terry Hannon dismissed two pot cases under unclear circumstances. The cases involved two women, Dana Detten and Melonie Berry, spotted smoking on SW Ankeny. Court records show Hannon tossed pot possession violations against both Berry and Detten with the notation "per DA," apparently indicating prosecutors had asked the charges be dismissed. But under Oregon law, district attorneys aren't even allowed to appear in violation cases unless the defendant has obtained a lawyer of their own. And it doesn't look like either Berry or Detten had representation.
Hit the jump to read Chief Reese's full memo:
Dear Bureau Members:
Since the recent passing of Ballot Measure 91, there is a need for clarification regarding procedures associated with marijuana possession and delivery.
Beginning July 1, 2015, the following amounts of marijuana will be legal under Oregon law:
• Up to one ounce on a person
• Up to 8 ounces (1/2 pound) in a residence
• Up to 4 plants
The Multnomah County District Attorney’s Office recently decided to dismiss the pending criminal charges related to conduct which will otherwise become legal next July. Any remaining charges not impacted by Ballot Measure 91 will be prosecuted. The DA’s Office does not plan to prosecute future charges for conduct related to marijuana possession and delivery of marijuana which will become lawful under Measure 91 absent exceptional circumstances.
The Multnomah County Circuit Court is reviewing citations that have been issued for violation offenses. In cases where it appears from the officers notes that the violation involved conduct that will be legal after July, 1, 2015, the court will dismiss the case.
Uniformed officers are instructed to use discretion, good judgment and common sense when encountering a person in possession of marijuana. Marijuana used publicly is still illegal and will remain so after July 1, 2015. The decision to cite or arrest in these cases is left to the discretion of the officer. Marijuana in any amount (absent of a medical marijuana card) should be seized; the subject should be given a property receipt and a special report should be written.
Any additional charges unrelated to the marijuana should still be forwarded to the DA’s Office.
The Drugs and Vice Division (DVD) will continue to investigate cases of interstate marijuana trafficking, money laundering, and/or clear cases involving significant distribution to juveniles. DVD will continue to provide on-call support to collect large quantities of marijuana that precinct officers may encounter as evidence or found property.
There is a great deal of work that needs to be done on this legislation, with many public safety questions yet to be answered.
By next July, we should have a better idea of procedural changes we will be making to accommodate the new law.
Thank you for your continued good work.
Stay safe,
Mike Reese
