A police officer pulls over a woman for speeding and notices the smell of marijuana coming from a portable vaporizer. A man smokes pot in his car, sitting in a movie theater parking lot.
She got a warning. He went to jail.
Two years after Santa Fe passed an ordinance declaring small amounts of marijuana “the lowest law enforcement priority,” it’s still unclear when someone caught with pot should get slapped with a $25 ticket or a state charge that carries heavier penalties.
In August, SFR published a cover story showing that city police officers largely ignore the policy, not only charging locals for minor marijuana possession in state court, but also repeatedly sending offenders to jail. Our findings dove deeper into earlier reports from the Albuquerque Journal and The Santa Fe New Mexican that city officers prefer to issue tougher penalties for pot users.
That’s why we scratched our heads when Councilor Joseph Maestas acted surprised about the news.
Maestas asked the city manager about the issue during a City Council meeting on Oct. 26, noting he heard “rumors” that officers don’t cite offenders with the low-consequence tickets that have been available since May 2015.
The city already has administrative procedures for how it handles municipal citations when they’re filed in court. But Maestas said that’s not enough. He wants to develop “guidance” for when it’s appropriate to issue a city or state ticket.
“I think there should be some emphasis, some desire, by our officers to enforce our city ordinance,” he said to the city manager during the public meeting. “As someone who supported that change in the law, I don’t think it’s enough to give our officers the complete option to enforce the city or state law.”
Santa Fe Police Chief Patrick Gallagher says the ordinance put officers in a “difficult position,” repeating a claim he made to SFR in August that the department needs to undergo a culture change. “I cannot make a blanket order for them to do the civil citations,” he says. “What I can do is list circumstances in which it may be appropriate to issue a civil citation.”
Maestas tells SFR he decided to push the topic now because he wanted to give police leadership time to acclimate. Gallagher took over the department after his embattled predecessor, Eric Garcia, resigned in July 2015. “Chief Gallagher has been there long enough to put his signature on how he wants the department to run,” Maestas says.
Maestas tells SFR he followed up with Gallagher shortly after the council meeting and decided the department needs to develop better methods for tracking marijuana offenses. “I am trying to validate these rumors with more recent hard data,” he says. “According to the chief, it is difficult to extract that data.”
We took the challenge. Again. Just this year alone, city police have issued nearly 60 state citations to people carrying less than an ounce of marijuana. Each of those offenders faced up to 15 days in jail and fines ranging between $100 and $1,000, depending on how many times they’ve been caught with pot.
More than half of the cases included additional state charges for possessing pot paraphernalia, like pipes and grinders, which would carry the same $25 penalty as possession under the city ordinance. In one case, a homeless man got a paraphernalia charge for a tin container holding two joints. Two of the cases were strictly for marijuana-associated paraphernalia.
During the same period, officers issued four municipal citations for the same offense, according to police spokesman Greg Gurulé.
SFR’s count of 59 marijuana charges this year comes from two sources. From January through August, we relied on city police reports obtained through requests under New Mexico’s public records law. Cases from September and October came from a query of the state’s Administrative Office of the Courts database. We did not count charges concurrent with other state offense, a scenario in which police say they’ll defer to the state law so as not to split cases between two courts. We did, however, count 15 cases where a person cited under the state marijuana statute also received a municipal ticket for infractions like speeding or a broken taillight.
Some city officers issue more citations under the state law than others. Anthony Sweeney this year wrote 10 state tickets for marijuana possession, more than any of his colleagues. But this isn’t a practice confined to one or two cops. Twenty-seven different city officers cited people for marijuana possession under New Mexico’s drug statute in 2016.
The department also provided records of 25 cases from this year in which police confiscated marijuana, but did not issue any citation for the drug. People carrying marijuana in some cases skirted charges for cooperating with officers. Officers in other cases found pot while responding to more serious calls, like unattended deaths or mental health crises.
Yet Maestas is not wrong about gaps in the data. Police provided state uniform incident reports in most instances. Those documents provide a wealth of data, including the race and ethnicity of offenders. For other cases, the department only sent supplemental reports or police narratives, which give bare-bones information, like dates, locations and the names of officers.
Before City Council passed the decriminalization ordinance on a 5-4 vote in August 2014, councilors raised concerns that giving officers the choice between penalties could lead to charges of law enforcement bias or discrimination. While a vast majority of the police contact that resulted in citations occurred in the city’s south and west regions, incomplete demographic data means there’s not enough information for conclusions on the racial makeup of Santa Feans charged with state marijuana offenses.
City police union president Troy Baker says officers don’t need any more guidance on how to do their jobs. “Politicians need to keep their noses out of the enforcement side,” he tells SFR.
The union’s pick for district attorney in the upcoming election, Republican Yvonne Chicoine, declined to comment on Maestas’ statement or whether she supports the ordinance. “This district attorney’s duty is to enforce state law. When cases are filed in the magistrate court, that’s on the basis of state law,” she tells SFR.
Her Democratic opponent, Marco Serna, says he hopes officers will adhere to the ordinance. He adds that he would plead down to a fine any low-level marijuana cases filed in state court.