Medical cannabis might be legal in several states, but it remains illegal on a federal level. Police officers generally need a warrant to search you or your property, but during a traffic stop, they only need probable cause for a legal search. In theory, probable cause means the officer must have some facts or evidence that suggests you’re involved in criminal activity, but it is a loosely defined concept. The Supreme Court ruled in Heien v. North Carolina that the police can basically pull over and detain citizens for pretty much any reason whatsoever even when no real cause exists as "fair leeway for enforcing the law.” In this particular case, however, the person consented to the search, and the majority of people arrested for cannabis unfortunately give up their legal rights willingly by consenting to searches and making similar mistakes.
Many police officers find tricky ways to get citizens to give up their rights and protections voluntarily. As noted in 50 States: New York, cannabis in small amounts is only a criminal offense in NY if held in plain view, but in the 1990s, NYC Mayor Rudy Giuliani found a way to get around decriminalization. How? Police officers started ordering people to empty their pockets, which would put the cannabis in plain sight and allow for criminal prosecutions. Most people are raised to believe they should always obey the police, but many arrestees would have been better off remaining silent except to deny consent to searches without a warrant. This is the type of information people need to know to avoid being arrested for cannabis.
For anyone carrying cannabis when stopped by the police, check out the LEARN Channel series How Can I Avoid Arrest with tips to help you avoid search and seizure and cannabis-related arrests. The tips include the following:
TIP #1: Be respectful.
TIP #2: You have the right to remain silent. Use it.
TIP #3: Travel with cannabis in a locked briefcase in your trunk.
TIP #4: Film your interaction and detention.
TIP #5: Do not consent to voluntary searches.
TIP #6: Ask if you are free to go.
TIP #7: Never physically resist a police officer.
TIP #8: Keep a lawyer’s phone number handy.
Upcoming bonus tips will include passenger rights during a traffic stop and what to do if arrested.
What to Say or Not to Say
Be respectful. If you are driving and get signaled by police, pull over immediately, turn off your car and place your hands on the wheel. Do not curse, argue or engage the police. Furthermore, do not reach for your license or registration until the police officer asks because reaching into the glove box could be interpreted as reaching for a weapon. When the officer does ask, however, hand it over immediately.
Remain silent (#STFU). You know that thing you always hear in movies, “You have the right to remain silent. Anything you say can and will be used against you”? That is pretty self-explanatory, and it is really your main defense against search and seizure. The police have the right to ask you as many questions as they want and will attempt to get you to give them probable cause. However, police do not have to tell you about your right to remain silent until you are actually detained and arrested. If asked if you were drinking, smoking or even speeding, you can politely reply, “I prefer not to answer any questions” or “I prefer to remain silent.” Remaining silent is not probable cause for a search. However, if you say “no” to these questions, it can become a problem later if you actually did drink, smoke or hit the white powder like Scarface. It creates impeachment issues if you end up taking the stand and is also admissible under an exception to the hearsay rule. And if you say “yes,” you could really hurt your case or give them the probable cause they need. If the officer asks why you won’t answer questions, play dumb and blame it on a friend or family member who is a lawyer, or you can be a badass and inform them you do not want to waive your Constitutional Rights. Robert Downey, Jr. played an elite lawyer in The Judge, and to quote his character, “You don’t talk, you walk.”
Ask if you are free to go. At anytime, you can ask, “Officer, are you detaining me, or am I free to go?” Many times, the police will claim that, if you consent to a search or “cooperate,” they will let you go regardless of what they find. The police will also ask leading questions like, “Have you had anything to drink or smoke tonight?” Maybe you had a beer or medical cannabis earlier, and you know you are not currently impaired—it doesn’t matter. The moment you admit to consuming any alcohol or cannabis, you give the officer probable cause for search and seizure. After stating your intent not to answer questions, proceed to ask, “Am I free go go?” Ask repeatedly.
How to Transport Cannabis
Carry cannabis in the car trunk in a locked briefcase or suitcase. If the police see any cannabis “residue or material” via visual inspection, it will immediately trigger a search, even in states with medical cannabis laws. Plus, in states like California, the smell of cannabis emitting from a car will allow police to search the car because of the automobile exception. Keep cannabis or alcohol sealed as tight as possible and in the trunk, and this includes medical cannabis as some states actually require patients to transport it in the trunk. By locking it up in a suitcase or briefcase, you almost guarantee that the police need a warrant to break the lock and search your property (assuming you didn’t violate Rule No. 4). Just remember what Jay-Z said in “99 Problems” when the police asked to search his car: “Well my glove compartment is locked so is the trunk and the back / And I know my rights so you gon' need a warrant for that.” This will also give you time to call your lawyer which, combined with the locked suitcase, may deter the police from continuing to engage and allow you to go free.
Record the Traffic Stop and Call your Lawyer
The following are LEARN Channel tips (Nos. 4 and 8 in the video) that can help you avoid search and seizure and cannabis-related arrests.
Film the traffic stop and detention. Many states have laws against filming the police, but these laws are illegal and cannot be enforced. The Illinois Supreme Court and The First U.S. Circuit Court of Appeals both ruled that it is "clearly established in this circuit that police officers cannot, consistent with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.” The officer is not allowed to make you turn your camera off, but make sure your phone has a lock-code on it in the event the officer gets agitated and decides to cease it from you. Your best bet is to inform the officers as soon as they pull you over or detain you that you are filming the detention. As long as you do not “interfere with police operations” (see Rule No. 5), you can legally film the interaction.
Keep a lawyer’s number handy. Every citizen has the right to a lawyer if you are arrested even if you can’t afford one. However, if you have a lawyer’s number and business card on hand, it can help prevent an arrest as the police officers will know they are dealing with an informed citizen. If they detain you or start to search your property, you should state, “I would like to contact my lawyer.” Even if you currently cannot afford a lawyer, that should not prevent you from asking a lawyer who practices criminal defense if you can call them in the event of an arrest for representation. Many lawyers will be more than happy to provide you with a number to call if you get detained or arrested.
How to Handle Search Requests
The following are LEARN Channel tips (Nos. 5 and 7 in the video) that can help you avoid search and seizure and cannabis-related arrests.
Refuse all search requests. Do not under any circumstances consent to a search of your property. That includes your car, house and property. The police will consistently ask citizens to consent, and they often make promises to ignore violations of the law or threaten to get K9 units or a warrant. Bottomline, if the police do not have probable cause, they cannot legally search your property. If they do search without consent and they cannot prove probable cause, you have a strong argument that your case should be dismissed. Let them know firmly but politely, “I do not consent to having my property searched.” Also, police can only bring dogs in the time it takes for them to complete the task upon which the original probable cause was based. So, if you are pulled over for speeding, the officer cannot hold you there longer than it takes to issue the ticket, run your registration, etc. If they hold you after, make sure to ask if you are free to go once again and inform them that they may not hold you absent probable cause to do so.
Never physically resist a search or arrest. Even if you believe the search is illegal or a violation of your rights, you need to comply with whatever the police officer asks you to do. That means, if the officer says, “Step out of the car,” you do so. If they start to search your car or property without your permission, say, “I do not consent to having my property searched,” but do not physically attempt to stop the search either. If you do not know if an officer is requesting or demanding your compliance, reply, “I do not consent to having my property searched.” That said, if you must step out of the vehicle, roll up the windows, lock the doors and place the keys in your pocket. This will make it more difficult for the police to lie and say you consented to a search of your car, especially if you can get your phone out and record or if they have a recording device in their car. This forces them to get a warrant or break in. If you feel it is moving in this direction, ask for the officer’s name, badge number and to see a photo identification. He may ask why, in which case you can say you heard about fake cops pulling people over, or you can take the badass approach again informing him that it is a request with which he must comply and that it does not matter what your reasoning is.
Legal Rights: Driver vs. Passenger in a Traffic Stop
The following is a bonus LEARN Channel tip that can help you avoid search and seizure and cannabis-related arrests.
Know your Fourth Amendment standing. As the Secretary of State, Thomas Jefferson announced the adoption of the constitutional amendment on 1792, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
As a passenger in a vehicle, you do not have a right to suppress evidence based on an illegal search of the car. This means, if you have a bag of cannabis in the car and the police search the car without probable cause, only the driver/owner will be able to suppress that evidence based on an illegal search, and you will be stuck taking the rap. As a passenger, you still have a Fourth Amendment right to your person and personal effects. This means you can still fight the case based on an illegal stop or detention if it lacked reasonable suspicion and/or probable cause depending on the nature of the stop. This also means you can fight searches of personal items in the car. Therefore, if you have contraband in someone else’s car, put it in locked luggage or other device that you own, preferably with a lock on it. This way you will have the ability to fight the case based on an illegal search if they are unable to show probable cause and invoke the automobile exception to the warrant requirement.
You Are Under Arrest
Aww shit, so it happened.
Step 1) “I would like to invoke my right to remain silent.” You must say this. Being silent is not enough, as backwards as that sounds. If you just remain silent, the police can literally sit and ask you questions for hours even though you are not responding.
Step 2) “I would like to invoke my right to an attorney.” This will prevent police from coming back to question you after they let you sit around for a while in jail, which they can sometimes get around if you invoke the right to remain silent. This will also get you an attorney to consult with/be present during questioning.
If you followed all of the tips listed in the LEARN Channel series, the lawyer will be in a much stronger position to get the charges dropped.
Special thanks to Ariel Clark of Clark Neubert LLP for feedback and advice