DALLAS — Sitting in a cramped booth at a local diner, Melody Smith, 37, teases her daughter over the waffles she ordered just moments ago and now refuses to eat.
It’s this soccer mom persona, Smith said [although Smith is not her real name], that helps her bypass watchful cops when she returns from semiannual trips to Colorado, where the sale of recreational marijuana was legalized last year, with a few ounces of pot.
“I tend to just be overlooked by authorities in general,” she said in a later interview.
Smith considers herself a pot tourist, a term used for those who casually buy in newly legal jurisdictions like Colorado. Like others, she transports what she buys back to states like Texas, where possessing marijuana remains a prosecutable offense.
The risks that even small-time pot traffickers take to transport weed across Colorado state lines are increasing as law enforcement in neighboring states set up more border checkpoints, increase inspections of storage facilities and shipping containers and even take Colorado to court. In December the attorneys general for Nebraska and Oklahoma sued Colorado in a Supreme Court case to roll back the state’s voter-approved laws legalizing marijuana, claiming cops in their states can’t keep up with an influx of weed that they argue is originating from Colorado.
But Smith has no plans to halt her trips. Despite the heightened crackdown, she and others interviewed for this story concede that their race and income make them less likely to get caught. The white, suburban mom said she eats or inhales marijuana twice a month, preferring a vaporizer and her couch to drinks at a bar. She earns a six-figure salary as the customer service manager for a prominent energy company.
Traffickers like Smith are rankling Nebraska and Oklahoma, which claimed in their Supreme Court suit that Colorado's legalization measure is undermining their own “marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”
Nebraska Attorney General Doug Peterson defended his state's decision in an op-ed, vowing that he and other officials wouldn’t “stand idle and watch Colorado’s failed experiment as it spills over to our state.”
The Supreme Court has asked Barack Obama’s administration to weigh in on the case. The court’s reluctance to take the case is telling as weed legalization and decriminalization sweeps through state legislatures but suffers from an impasse on Capitol Hill, even with marijuana now legal in Washington, D.C.
Sam Kamin, a professor of marijuana law and policy at the University of Denver, said these legal uncertainties help perpetuate the black market. “It won’t be resolved until federal prohibition disappears,” he said.
These small-time pot traffickers often draw comparisons to Prohibition-era bootleggers. As with alcohol, analysts say legalization is increasingly less about if it will happen than it is about when.
The Pew Research Center reported in March that a majority of Americans back legalizing marijuana. Stunningly, the poll found that fewer than half the respondents said they have tried it, with 7 in 10 convinced that alcohol is more harmful to society.
Changing attitudes about pot clash also with the reality of law enforcement. Marijuana-related offenses still make up a sizable chunk of arrests nationwide. Of the 1.5 million arrests for drug use violations that law enforcement agencies made in 2012, the FBI estimated in a crime report that roughly half stemmed from simple possession cases involving marijuana.
Those numbers contribute to the United States’ exploding prison population, with more than 95,000 people, or almost half of inmates, serving sentences for drug offenses, according to the Federal Bureau of Prisons.
“What [my buyers] get from me is they know they’re not going to get arrested,” said one source, John Paulson [not his real name], a businessman who lives outside Tampa. “They know it’s safe.”
He chalked up what he does to a cause familiar with libertarians: consumer choice, with the reassurance that he sells only to a discreet clientele.
Another source from Texas, who asked to be identified as Casper Jones, said she felt proud of her work in the pot industry. “This was product that I felt really good about,” she said.
Jones and Paulson have cleared hundreds of thousands of dollars trafficking marijuana. They both have done a lot of business in California, where medical marijuana is easy to buy.
According to Jones, she made about $70,000 during the one year she spent reselling marijuana. She said she would buy a pound of marijuana for $1,000 in California and have anywhere from 15 to 30 pounds at a time transported to Texas, where she would sell each pound for $2,000.
Paulson would purchase larger quantities and gross more than twice his purchase price. He would visit high-end parties with executives and deliver gift baskets with edibles wrapped to look like Jolly Rancher candies.
“If you meet me, I look like a middle-aged white executive,” he said.
According to his account, he was a successful entrepreneur for years but fell on hard times several years ago when a business arrangement went sour. A suit, a countersuit and an expensive divorce drained his life savings, he said.
A friend with a dispensary convinced him to sell marijuana, and Paulson began making trips from Florida through the Midwest to California and back. He sold different varieties of high-end marijuana, he said, ranging from Green Candy to Super Sour Flower.
He planned his routes, studied peak traffic times and stayed only at higher-end hotels. He moved product on trips for which he could use other, legitimate business as an alibi. He used rental cars and drove only during the day to avoid suspicion.
Leery of drug-sniffing dogs, Jones and Paulson followed an industry practice of triple-bagging their product, wiping down each layer with alcohol and vacuum-sealing it. Both often also shipped via FedEx and the U.S. Postal Service.
Beyond even these precautions, all three sources had something else working in their favor: They are all white.
Racial bias often emerges in arrest and sentencing patterns, with blacks bearing a disproportionate brunt of prohibition enforcement. The American Civil Liberties Union found that African-Americans were four times as likely as whites to face arrest for marijuana over the last decade.
Age and gender can play a role during a traffic stop too. According to Jones, it wasn’t uncommon for marijuana sellers to hire women in their 20s.
“Most of the girls involved are hired to transport,” she said, explaining that cops were more likely to assume their innocence. “I know some girls who were making $65,000 for one trip.”
Jones said she was caught coming through Texas early one morning. Officers stopped her at a checkpoint.
They confiscated her marijuana and paraphernalia but didn’t charge her or a companion. “They just let us go and said, ‘Welcome to Texas,’” she said.
Jones said she stopped selling in 2013 when she thought her business partner started taking risks that could raise red flags with enforcement.
Since then, the risks that marijuana trafficking entails have increased around Colorado as law enforcement offices step up monitoring efforts.
According to a recent report by a regional office of the Office of National Drug Control Policy, highway and state police made 360 marijuana interdiction seizures of outbound marijuana from Colorado in 2014 — an increase of 592 percent from the annual average from 2005 to 2008. The report relied on information volunteered by law enforcement agencies, so it may not reflect the actual landscape.
A few analysts take issue with how authorities chose to present their findings, however. According to an analysis by the Marijuana Policy Project, a pro-legalization group based in Colorado, interdictions shot up from some 300 cases to about 1,500 over that time frame, with officers seizing just 33 percent more marijuana.
“Cops don’t like that Colorado passed this law, so they’re trying to make the case that marijuana is flooding in,” said Mason Tvert, the communications director for the group. “They’re stopping so many more people, but they’re finding less and less marijuana.”
Reported drug trafficking offenses fell after Colorado legalized marijuana, down 9.6 percent from 2012, according to the U.S. Sentencing Commission. The agency described a “sharp decline” in marijuana as a share of those numbers in 2013.
Nebraska and Oklahoma don’t need to prove a rise in trafficking in order to sue Colorado, but it isn’t clear how a Supreme Court decision would impact marijuana policy.
“They can’t order Colorado to criminalize marijuana,” Kamin said. “What they’ll do if they take the case is say you can’t regulate or tax it.”
That’s a scenario that continues to play out as government officials grapple with the marijuana question. The Obama administration is holding off on federal enforcement in states where it’s legal, thanks to a Justice Department memo, but the next president could reverse course.
The uncertainty leaves even legitimate businesses that come forward in states like Colorado wondering whether prosecutors will use their good-faith efforts against them in the future. That returns the decision to a still divided Congress — and keeps those who use and sell marijuana in limbo.
Meanwhile, Smith said she’s already planning her next trip to Colorado.
Lenore Adkins, Kara Andrade and Olga Khrustaleva contributed to this report
Correction: An earlier version of this story overstated Melody Smith's salary. She earns a six-figure salary.