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.
Special thanks to Ariel Clark of Clark Neubert LLP for feedback and advice