Q: What’s Seattle’s marijuana policy?

A: This question has been asked several times in different forms. On Wednesday, Mayor Mike McGinn released this Q and A about Seattle and marijuana laws:

1. Is enforcing simple possession of marijuana really SPD’s lowest priority?

Yes. In the first four months of this year about 6,500 incident reports were filed with the City Attorney’s Office. In only six of those incidents was marijuana the reason for the contact. Only .09% of incident reports during this time period cite marijuana as the primary reason for a contact.

2. Do police officers ever stop someone solely because of marijuana?

Yes, but very rarely. Although it may appear that marijuana was the “sole charge” in a lot of incident reports, it often looks that way because the reason for the stop was either a traffic citation (which isn’t a criminal charge), or to execute a warrant. If someone is arrested because of an outstanding warrant, the offense for which the warrant was issued isn’t a new violation, so review of the City Attorney’s records would cause one to conclude (incorrectly) that marijuana was the only criminal violation at issue.

3. Why do officers have to report that they took my weed? Can’t they just flush it and let me go on with my day?

Police officers are expected to document every incident accurately and by the book. When an officer comes across someone with marijuana, whether during a traffic stop or execution of a felony warrant, he or she is obligated to seize it. There have been a number of incidents across the country in which an individual alleges that an officer stole his/her narcotics. Because cities have been sued and officers relieved of their duties because of these allegations, it is SPD policy that every drug seizure be properly documented in an incident report.

4. Why can’t an officer just record that he seized marijuana? Does he really have to recommend prosecution?

Police officers don’t decide or recommend whether or not to prosecute. An incident report is simply a narrative description of what happened. Each report is categorized by the “primary charge”, meaning the most serious offense outlined in the report. An Assistant City Attorney will look at every report the police send over and decide whether or not to charge. The decision to charge rests solely with the City Attorney, not SPD.

5. Why does the officer have to send a report to the prosecutor at all?

We have recently changed the way we send incident reports to the City Attorney’s Office. Formerly, incident reports were paper reports that were walked over to the City Attorney’s Office. Now, these reports are electronic and go from the patrol officer to a detective sergeant to be reviewed for accuracy, and then directly to the City Attorney’s Office. The only time a report wouldn’t go to the City Attorney or King County Prosecutor is if there’s no evidence or no suspect. The law gives our elected prosecutors the discretion to choose what to charge, but it doesn’t give the same discretion to the police.

The fact that reports are transmitted automatically may account for the increase in incident reports involving marijuana, because in the past some volume of low-priority incident reports were probably never sent to the City Attorney’s Office in the first place.

6. You said the police rarely stop people just for marijuana, and yet the City Attorney is declining all these marijuana charges. Where are these charges coming from?

Most police contacts involving marijuana occur because of an unrelated offense. For example, of the incident reports filed between January 1st and April 30th of this year (the time period covered by the Stranger’s public disclosure request), there were only eighty that cited possession of marijuana. Of these:

• 17 (21.3%) involved 911 calls for service. 7 were for narcotics complaints, meaning someone called 911 about drug-related activity and that drug turned out to be marijuana. 10 of those were dispatched calls for non-narcotics complaints like fighting, trespassing, or someone behaving erratically and blocking traffic and marijuana was discovered subsequent to the arrest. While enforcing marijuana laws is our lowest priority, responding to our community is our highest priority. 14 (17.5%) involved the serving of warrants. That is, officers encountered someone with an outstanding warrant, searched that individual, and discovered marijuana.

• 20 (25%) involved a traffic stop. Even under the most liberal legalization proposals, driving under the influence of marijuana would remain illegal, so when an officer stops a vehicle and smells pot, a search is clearly justified.

• 12 (15%) involved a High Drug Enforcement Area. These are areas of our city which see a high volume of drug trafficking, and have been targeted for heavy drug enforcement. When a cop sees a hand-to-hand sale, it’s not always obvious what drug was sold until they make the stop. Additionally, street-level dealers of heroin or cocaine often deal marijuana as well. Thus, marijuana shows up in the incident report.

• If you remove those four factors, you are left with 21 of the 80 incidents. Of the 21, all but six were incidents in which the officer stopped the suspect for a reason other than marijuana, and discovered marijuana incident to the arrest. Those six remaining incidents all involved individuals openly smoking marijuana in front of a police officer.

7. I keep hearing that marijuana is basically legal in Seattle. How serious an offense is it, really?

According to the City Attorney:

Marijuana possession remains illegal everywhere in Washington, including Seattle. Enforcement of “personal use” possession is the lowest priority for both the Seattle City Attorney’s Office and the Seattle Police Department. I don’t prosecute simple marijuana possession cases, but marijuana possession is still a crime, and people risk arrest and search incident to arrest for possession, especially people who choose to flaunt marijuana in the presence of law enforcement.

As for the “serious offense” question, under Washington law, possession of any amount of marijuana with intent to manufacture or deliver the marijuana is a felony, regardless of the amount of marijuana. Possession of more than 40 grams of marijuana is also a felony, regardless of intent. Possession of 40 or fewer grams of marijuana without intent to manufacture or deliver the marijuana is a misdemeanor. The King County Prosecuting Attorney is responsible for prosecuting felony offenses, so it is up to the county whether and how to charge felony marijuana offenses.

The answer to the first question was corrected by the mayor’s office Thursday.