All credit goes to VladTemplar for originally writing this.
——————————
So you want to know the state of the law eh? Then listen up.
Disclaimer: Absolutely nothing in this document is to be taken as legal advice given in counsel. This advice is purely informational in purpose and intent and in no way creates any kind of contract for legal services between you and anyone at Stoner Culture or any member of the website and most assuredly not with the author of this writing. This information is never to be considered a substitute for the advice and guidance of a licensed attorney. You are responsible for your own legal future.
For legal advice PLEASE seek the counsel of an attorney. If you’ve been charged then the information in this document is too late for you and you need to get representation immediately. I highly recommend you visit http://norml.org/index.cfm?Group_ID=3445 and find a lawyer in your state to get assistance. There is absolutely no reason whatsoever in this day and age to not have the phone number of an attorney programmed into your cell phone so you can call them when you get into trouble even if you’ve never spoken to them before. Criminal defense attorneys would much rather get a call from a potential client as they’re being processed for their charge than a week before they’re supposed to appear before a judge.
Gotta start somewhere so here we go!
Something to always bear in mind…YOU STAND TO GAIN NOTHING BY HANDING THE POLICE EVIDENCE AGAINST YOU. WHEN IN DOUBT INVOKE YOUR RIGHT TO COUNSEL AND KEEP YOUR MOUTH SHUT!
When it comes to drugs and the United States you’ve pretty much got to keep one thing in mind, the law is always against you. In fact that’s just putting it nicely because the reality is that the entire system is completely stacked. Cops know they can cross the line to get that bust; judges back the cops because they’re afraid for their careers if they don’t, and the prisons…well that doesn’t even need explanation. I don’t say this stuff to scare you or create paranoia I say it because it’s the truth. If there is anything America is short of when it comes to drugs it’s the truth and quite frankly I think we all deserve some.
Some of the advice I purport herein may seem a bit over the top, but you’ve got to remember that there’s no point in me giving you half-assed advice. I’d much rather give general legal advice that met the highest standard of caution and err on the side of caution than to disseminate advice that will not place you in the best legal situation possible. You’re always at the disadvantage in our legal system and the concepts of “innocent until proven guilty” and “beyond a reasonable doubt” are extremely lofty ideals of civil liberties…the problem is that if you make it to trial most juries already assume you’re guilty and reasonable doubt is whatever gets them out for lunch, the movie, or the bar to get drunk quicker.
So what do you do? What can you as a normal everyday citizen with little to no legal training and probably not of the means to have an attorney on retainer 24/7 that you can call at 2am do? You can arm yourself not with implements of a physical kind but the implements of the mind. No matter what happens in our society the government cannot incarcerate your mind and you can fight against the laws that you so vehemently despise by becoming an educated citizen.
This document exists to give you some general legal advice about exerting your rights and to ask questions regarding how to respond to situations or what approaches to take. Simply put if it involves the law this is the place to go.
Onward to the stuff that you actually came in here to read so you can move on with your life.
First up I’d like to convey what I consider the ‘tiers’ of marijuana users. This thread isn’t exclusively for marijuana by any means but by and large that’s going to be the biggest subject. So I’d like to toss this out there before we delve into the details of legal protection.
Marijuana smokers come in 3 categories:
Tier 1: These smokers are your Carl Sagan’s they keep it to themselves and limit their exposure. Most of these smokers are extremely diligent about their surroundings and know full well the risks they’re taking. Most smokers in this category only consume at home, inside, and know what to do if the cops actually do show up. Smokers in this category are almost never caught. If caught the smokers in this category tend to call an attorney immediately and try to defend themselves as best as possible.
Tier 2: These are your average smokers, your typical college student if you will. Smokers in this category don’t want to get caught and will try to take precautions. Smokers in this category often have at least a passing understanding of the legal ramifications of their decision to toke. However, smokers in this category are certainly more lax about their security than smokers in the first tier. They’re the smokers that are more likely to smoke while driving, leave a roach in an ashtray of the car, or somehow do something, even if inadvertent, that will expose them. Smokers in this category do get busted, but not as much as those in the third tier, and when they do get busted they at least check out the idea of legal representation.
Tier 3: These are, for the lack of any better word, the idiots. Smokers in this category throw all caution and diligence to the wind and often couldn’t care less about taking precautions or knowing anything about the law. Smokers in this category tend to smoke whenever and however they feel like it, exposure be damned. Many smokers in this category never bother to seek legal representation when charged and many will let multiple possession charges over time just accumulate. Most attorneys that have at least a partial specialization in drugs loathe these smokers because they not only tend to always have an excuse about not paying but they also tend to fuck up while they have pending charges which nullifies whatever plea bargaining the attorney has worked towards. In general if you meet a Tier 3 smoker, you stay the fuck away from them.
I’m going to break this down into three parts descending from the most protected place to the least protected.
1. Your home
2. Your person
3. Your vehicle
Your home
In the eyes of the law absolutely no place gets greater protection than your home. You should consider it your castle and always remember that you have the right to consider it as one. Just like a castle can slam shut the gates and pull up the drawbridge so can you. In that sense I’m going to focus on the most specific weakness of a castle and of your home: the front door.
Gone are the days of armies laying siege to a castle we’re in the days of search warrants and SWAT teams, but if a situation arises where you’ve got a SWAT team stacked up on your front door with a breaching ram and a search warrant you’re pretty much done for so there’s no point addressing that. Thankfully unless you’re a major dealer of illicit substances you probably don’t have to worry about ever seeing the SWAT team bust through your front door what you have to worry about is called the knock and talk.
The knock and talk
This is a pretty basic tactic of any police officer and something officers are trained in rather exhaustively. A neighbor has called complaining of loud music, perhaps a fight, perhaps they smelled weed whatever it is the neighbor saw when the cops show up all they have are the words of an eyewitness (which is usually flimsy for a District Attorney to go on) so the cops have to do the only thing the law will allow them to do which is to walk up to your front door and knock on it.
Steps:
1. Go to door
2. Ask, THROUGH THE DOOR, for the persons to identify themselves and the cops will do so.
3. Ask, THROUGH THE DOOR, how you may help them (the popo) on this fine and dandy evening.
a. The cops will probably ask you to open the door and speak to them
4. Tell the cops, THROUGH THE DOOR, that you will not open up your home without a search warrant and tell them to have a good evening.
5. Walk away from the door
Fact of the matter is that cops can’t enter your home without one of two things, a search warrant or an exigent circumstance. If you hear knocking at your door you’re going to do what everyone else does and walk up to the door. So you’ve done so, you’ve looked through the peephole, and viola it’s the cops. At this point the police know you’re home (unless your lights were off and they didn’t see the peephole being covered up) so you should do what everyone should do when they see someone at the door, not open it. You should ask, through the door, for the officers to identify themselves. They will likely tell you they’re officers of the law and will ask you to open the door and speak to them for a minute. DO NOT FALL FOR THIS TRAP. For the love of God don’t open that door, PLEASE! When it comes to complaints about noise and loud parties cops love it when you open the door because it can give them some sort of probable cause. All a cop needs for probable cause is “plain sight” and they’re allowed to enter the home which lets them seize what was in “plain sight” and while doing so they’re allowed to seize anything else that’s in “plain sight”. So do yourself a favor and never give them a view into your home. If you open that door and those cops get even a whiff of marijuana or anything those cops don’t like they’re going to claim something was in “plain sight.” It may not have been, but who is that judge going to believe, the officer of the law or you? That’s what I thought.
So the cops have asked you to open the door, your pulse has skyrocketed and you’re nervous, what do I do? Mr. VladTemplar told me to not open the door but it’s the fucking cops man they’re going to bust my fucking door down and bum rush like a drug bust!!!! Wrong sir, absolutely wrong. Of all the things I’ve seen I’ve never seen a cop break a doorjamb without a reason to do so.
The exigent circumstance? WTF is that I call shens!
Mr. VladTemplar I do believe you mentioned something called an exigent circumstance and that sounds like a really complicated lawyer thingamajig to let the cops into my home, what is it? Well exigent circumstance is a legal term used in criminal procedure. It basically allows an officer of the law to enter a domicile without a search warrant under three conditions. (1) Prevent imminent danger to life or serious damage to property, (2) or to forestall the imminent escape of a suspect, (3) or destruction of evidence. Those are the, by definition, factors of exigent circumstance. Now you’re probably thinking “Well I’ve got you now, you self-righteous prick, if the cops think I’m smoking the reefer and I don’t open my door they’re going to say they had an exigent circumstance because I’d flush my pot!” And here you’d be wrong. A cop can’t create the exigency; I’ll say that again, an exigent circumstance cannot be created by the officer of the law. So if the cops think you have pot and claim they busted through the door so they could seize it before you destroyed it they’ve created the exigency and it won’t fly in court. This is actually an issue I’ve seen come up and I managed to find massive amounts of on point case law to back it up.
If the cops keep knocking on your door and demanding you open it just ignore them, they’re trying to intimidate you into surrendering your rights. Cops do this all the time. Ignore them and they’ll go away. If they had a reason to bust through the door and arrest you believe me they’d have already done it. So don’t give them a reason.
A brief note on search warrants
If the cops knock on your door and you follow the above listed procedure and are told they have a search warrant ask the officers to slide it under the door. Most of the times when cops have a search warrant they’re not necessarily going to hit you with a SWAT team unless it’s genuinely high risk (meaning you’re slinging yayo dude!).
What you need to look for on a search warrant is pretty simple. Foremost it will most likely “look very official.” Meaning it will have a description of where is to be searched, what they’re looking for (the items to be seized), and most importantly the signature of a judge. So if the cops try to pull some kind of Training Day shens you can tell Mr. Wannabe Denzel to give you his name and badge number. You can then promptly call a lawyer who will move like Speed Racer to get to you and help.
Your person
Steps
1. Stop and let the officers walk up to you, do not run.
2. Ask the officers if you’re free to leave, if not ask why you’re being detained (detainment is not the same as arrest, but your rights are still there).
3. If the cops try to search you refuse any searches, if they insist on patting you down let them (stop and frisk is legal) but immediately state you do not consent to any further searches and request to call your attorney.
4. Do not answer any questions, simply be silent. Lying, even a white lie, is something else you can be charged with.
5. Above all be courteous
The scenario
So you’re strolling down the street minding your own business. You’ve got Rick Astley blaring in your headphones and before you know it you’re getting rolled by the cops (now that’s a rick roll). Your first move is to stop and let them come to you. I think it goes without saying that you never run from the cops, it’ll never work and you only make matters worse for yourself when you get caught.
Oh shit now what?
Cops can stop you on the street to question you and even pat you down for weapons. So let’s start this section by addressing the latter first.
The stop and frisk
A pat down search is by definition for weapons, but if a cop feels anything he considers even slightly suspicious in your pockets he’s going to find it, so let that be a lesson. If there’s anything you don’t’ want to be found then your pockets are the worst place in the world. What’s much better is any kind of bag. So your best bet if you’re walking around and you have something illicit on you is to place it inside a container. To give an idea of the legal weight of this I defer to the Supreme Court of the United States.
“For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.” U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L. Ed. 2d 572 (1982).
I think that’s pretty self explanatory. Cops don’t expect you to know it though and the vast majority of cops don’t know it either. If a cop tries to search a bag you’re carrying you should immediately state that you do not consent to any searches of your items, if they search them anyways, you might get arrested but it’s something you can fight.
The questioning
If cops ask you for your name, give it to them. If they ask to see some identification, give it to them. Nothing requires you to carry an ID with you on the street, but it’s a lot less hassle if just hand them an ID card than it is to say you don’t have one. If you don’t have one they’re allowed to attempt to ascertain your identity so it’s best to just comply with the request for identification.
By and large the biggest advantage the 5th amendment gives you is the right to be silent. Pause for a moment and think about what I just said. You have the right to be SILENT. Sometimes, no almost all the time, the best thing you can do is be silent. Just about anything you say can be twisted and used against you so refusing to answer questions by silence is a great option to choose. You can’t be charged for refusing to answer a question, that’s your right.
By and large the biggest favor you can do yourself here is to be kind and courteous. Like it or not cops love to feel in control so placate their egos. It’ll work in your favor and is just one less thing you might have to deal with. Exerting your rights won’t piss the cop off and last time I checked, contempt of cop is not a chargeable offense. So long as you comply with the law you’re fine even if you are arrested.
The threat of the grand jury
Believe it or not some cops will actually threaten you with this and I didn’t even believe it till I actually saw it happen in a case. Something more educated cops will do when they start questioning you and you stay silent is threaten you by saying they’ll get a grand jury to make you talk. Well, that’s all great and grand, but a cop is not a grand jury. Hell the cop can’t even make a grand jury convene that would take the DA. If a cop threatens you with this just do your best to stifle the laughter that I would certainly have because a grand jury is a whole new ball game.
If the DA has a grand jury convene the grand jury can consider evidence against you that will force you to appear in court and testify. Notice that whole in court thing? Yeah it happens in court, with counsel present, before a judge. A cop is not a grand jury, he’s not a judge, and he’s certainly not a DA. Don’t fall for this bullshit.
Your car
Steps
1. Have your driver’s license, registration (if your state has it), and insurance verification handily accessible and NOT in a location where you’d store anything illicit.
2. Be courteous, but don’t answer questions about “do you know how fast you were going” by telling them, that’s an admission of guilt. Keep asking “How may I help you?”
3. If the cop asks to search your vehicle, refuse.
4. If the officer keeps asking questions, ask if you’re free to go.
5. If the officer tells you you’re not free to go then state, overtly, that you’re invoking the protections of the constitution of the state you’re presently in as well as the protections of the Constitution of the United States and that you’re expressly invoking your right to counsel.
6. Once you’ve invoked your right to counsel the cop can either arrest you or let you go, he cannot ask you any further questions. If the officer keeps questioning you remember this for your attorney, it goes to character/ethics of the officer.
NEVER CONSENT TO A STANDARDIZED FIELD SOBRIETY TEST!
A field sobriety test is a completely subjective test. Meaning the officer doesn’t think “would a reasonable person think this driver is impaired” but rather “do I, the police officer, think this person is impaired?” The difference is huge and when you willingly submit to a field sobriety test you’re submitting to their subjective inspection of your sobriety. Translation: they’re going to claim you “failed” one of the physical coordination tests. There is no field sobriety test currently available to police for marijuana (though there is a saliva test it’s still lab-based) and you can simply tell the officer you’re willing to blow on a Breathalyzer but you won’t submit to the field sobriety tests. That’s all they’ve got.
On to the car
The car is the worst place for you to have a police encounter, period. I’m one of the most careful drivers out there because I’m always paranoid of getting pulled over. The more I’ve learned about your rights in a traffic stop and the more I’ve learned about drug profiling the more careful I become. The best advice I can give you about your rights when in a car is that they’re nearly non-existent. The Supreme Court has ruled a vehicle to be a movable crime scene and in the infamous Whren decision absolutely ANY traffic infraction, essentially, is sufficient to allow an officer to pull you over and cite you for it. So let’s roll through your rights in a car.
An officer is always allowed to ask you for your driver’s license, registration, and insurance verification. These are items you should have readily available in your vehicle. You should know where they are. You should keep these in a readily accessible location that you would never consider hiding something illicit in. My insurance verification is held by a holder that’s kept in place on my visor by a garage door opener. My glove box contains nothing besides copies of the car’s maintenance work, the owner’s manual, and a disposable camera (good to have if you get in a wreck).
When the cop approaches you in your car remember the one cardinal rule, anything you say can be used against you. That cop is searching for a probable cause to search your vehicle and they’ll take anything they can get. If your car even remotely smells like marijuana you’re pretty much guaranteed the cop is going to claim probable cause and search the vehicle.
A brief segue into toking and driving
I know I’m going to catch some flak for this, but folks, this is the absolute dumbest thing you can do. I don’t care if you’re the best driver alive when high you’re asking to get pulled over. When you get pulled over you’re going to get searched, they’re going to find whatever you had on you, and you’re going to get arrested, period. Smoking marijuana and driving is absolutely ludicrously dumb. You wouldn’t think it smart to knock back a bottle of whiskey while driving and you shouldn’t think it smart to toke away on Mr. Spliffy either.
So Mr. VladTemplar where do I store my shit?
The trunk, above all, the fucking trunk. A trunk is a locked container that is outside your area of control in a vehicle. Cops are allowed to search within the area of control you have and so long as your trunk is outside that (hatchbacks don’t get an exemption like this) your trunk is not incident to search for probable cause. Now if you’re arrested it is, but just because they smell something funky doesn’t mean they get to search the trunk, you dig?
The best advice I can give you on a traffic stop is to be courteous but to exert your rights at the same time.
That’s all folks!
Your state laws may contradict some things I’ve said above and some of the things I’ve said above may prove to be false in the future. The state of our legal order is constantly changing and a single decision by a circuit court that presides over the area you’re in may drastically change the state of the law for that area and you. The Supreme Court could turn around tomorrow and completely nullify all the advice I’ve given above. The only constant in the law is change and the only disadvantage of our present order is that civil liberties are shrinking faster than the tits of a cheerleader who took off her pushup bra.
Stay safe people and take care of each other.
