Why Singers Carrying Hash Should Not Take I-10 Through Texas


Last week's arrest of singer-songwriter Fiona Apple on drug charges in Sierra Blanca, Texas, raised a couple of legal questions that are worth mentioning:

If the Supreme Court says roadblocks aimed at finding illegal drugs are unconstitutional, how could Apple have been nabbed at a checkpoint after a police dog "alerted" to her tour bus? The Sierra Blanca checkpoint, run by the U.S. Border Patrol, is ostensibly aimed at catching illegal immigrants. The Court has said such checkpoints "near the border" are consistent with the Fourth Amendment. The Court also has said that using a dog to sniff out drugs, whether at an airport or during a traffic stop, does not constitute a search. So once Apple's bus was legally stopped at the checkpoint, no evidence was required to walk the dog around it. A spokesman for the Hudspeth County Sheriff's Office, which took custody of Apple after her arrest, claimed the dog smelled eight grams of cannabis from outside the vehicle even though it was in "a sealed glass container inside of a backpack way in the back of the bus." He added, "That's a pretty sensitive dog." Suspiciously sensitive, you might say. Since there's a pretty good chance of finding drugs on a musical performer's tour bus, you might wonder whether the dog really smelled the cannabis or merely responded to its handler's expectations (assuming it responded at all). Since the alert was treated as probable cause for a search of the bus, there is a lot riding on this dog's olfactory acuity and his handler's claims about its response to the bus.

Ten years for eight grams? Seriously? In Texas possessing eight grams of cannabis buds would be a Class B misdemeanor punishable by up to six months in jail and a $2,000 fine. But in Apple's case, four of the grams were hashish, making her guilty of at least a third-degree felony, which carries a penalty of two to 10 years in prison, plus a $10,000 fine. If the amount was exactly four grams or more, that would make possessing it a second-degree felony and double the maximum prison sentence. As I noted in a 2010 post about a guy who faced a possible life sentence for hash, the Lone Star State's treatment of cannabis resin is unusually harsh: Possession of any amount is a felony, and the penalties for possession and distribution imply that cannabis resin is 20 to 80 times as bad as cannabis buds, even though its THC content is 20 times higher at most. That's comparing crappy marijuana to high-quality hash. If you compare high-quality marijuana to crappy hash, the difference in THC content can be small to nonexistent. 

Apple is the latest celebrity to be busted for cannabis possession in Sierra Blanca while traveling through West Texas on Interstate 10. Other victims include Willie Nelson and Snoop Dogg. Pot-preferring performers might want to consider a different route, especially if they're carrying hash.