Marijuana.com

phuzz01

The following are my answers to some of the more frequently asked questions in the Cannabis and the Law question. My hope would be that people reading this would then not have to post some of the same questions that we seem to get here over and over again. However, I realize that that is wishful thinking. If people with verified, current, first-hand knowledge of search and seizure law (such as police officers, lawyers, some academics, etc.) want to add to this or argue against any of my statements, I would absolutely welcome that. However, I would appreciate it if people who talked to their cousin who heard from a friend who read on the internet, etc. not try to present incorrect information here as fact.

Of course, before I begin, I have to give the disclaimer: The following information is true to the best of my knowledge. However, local, state and federal statutes vary widely across different areas, as does the relevant case law. Furthermore, both statutes and case law are changing all the time. Therefore, your mileage may vary. What follows is for informational purposes only, and should not be considered legal advice. If you need legal advice, consult an attorney.

1. Can a police officer approach me and ask me questions for no reason?

Yes. Just like everyone else, police officers can walk up to anyone they want and begin a conversation. They do not need "reasonable suspicion" or "probable cause" to do this. This means that they can also ask you questions. However, that does not mean that you are required to answer those questions. It also does not mean that you have to stay there and talk to them. If you are unsure of whether you are free to leave, simply ask "do I have to answer that question?" and/or "am I free to leave?"

Now, if a police officer has reasonable suspicion that a crime has been/is being/is about to be committed, he may temporarily DETAIN you for a reasonable amount of time and ask you questions of an investigatory nature until his suspicion has been confirmed or dispelled. This is not considered an arrest or a seizure under Terry v. Ohio.

2. When can a police officer "pat me down?"

According to Terry v. Ohio (US Supreme Court), a police officer can conduct a limited "pat frisk" of your person if he has reasonable suspicion that you are armed and may be presently dangerous. This limited "pat frisk" means that he can pat the outside of your clothing, but may not search underneath your clothing or inside of pockets.

If the police officer feels an object during the pat frisk that he reasonably believes may be a weapon, he may remove that object for further inspection.

If the police officer feels an object that he does not reasonably believe is a weapon, he may NOT manipulate in order to determine what it is. However, if he feels an object that--although not a weapon--is immediately apparent as being contraband, the officer may seize that item and it will be admissible.

3. When can a police officer search my person/pockets/etc.?

A police officer can search your person for evidence or fruits of a crime if you give him consent to search your person. He can also search your person incident to a lawful arrest (meaning, right after you have been arrested). He can also search your person if he has a search warrant to search you. He can also search you without a warrant if he has probable cause to believe that there is evidence or fruits of a crime on your person, AND that there are other "exigent circumstances." Exigent circumstances include many different things, but some of them include: if he has reason to believe that evidence will be destroyed if he goes to get a search warrant, if he has reason to believe that suspects will not be caught if he takes the time to get a search warrant, if there is a public safety emergency and he needs to search you in order to prevent death or bodily injury (i.e. you match description of subject who just pointed a gun at someone else nearby). There are a few other situations when a police officer could search you, but those are less common.

4. When can a police officer search my house?

A police officer can search your house if he has a warrant. He can also search your house if you give him consent. He can search your house for a suspect if he was in "fresh pursuit" of that suspect, and the suspect ran into your house. A police officer can search your house if he has probable cause to believe that evidence or fruits of a crime are in it, and there are "exigent circumstances." Again, that would include things like public safety emergencies or if the evidence is going to be destroyed while he is getting a warrant.

If a police officer sees contraband or evidence of a crime in plain view in your house, he can enter and seize it. Even if the officer is standing in the second floor of your neighbor's house and looking down over your fence, that is still considered plain view. Also, police officer can use common items such as binoculars to look into your property. However, the use of high-tech items that are not readily available does not count as plain view. For example, if the police use thermal imaging cameras to look through the walls of your house, that does not fall under the "plain view" exception (would count as a search, and therefore require a warrant/consent/etc.).

Again, there are a few other circumstances where the police could search your home, but I think they are less common.

5. When can a police officer "pull me over?"

A police officer can pull you over in your car if he has reasonable suspicion to believe that any crime or motor vehicle violation has been or is being committed. Motor vehicle violations include such minor things as crossing over a centerline or fogline, or having defective equipment on your vehicle. According to Whren v. US, a police officer CAN stop you for any minor motor vehicle violation, even if his true intention is to look for some other criminal activity (called a "pretextual" stop).

If the police officer ONLY has reasonable suspicion to believe that you have committed some minor motor vehicle infraction (i.e. running stop sign), he may only detain you at the traffic stop for a reasonable amount of time necessary to investigate that infraction and take the appropriate enforcement action. However, if during the stop he then develops reasonable suspicion that another crime has occurred or is occurring, he may then continue to detain you in order to investigate that new crime.

6. Can the police officer make me get out of my car for no reason? What if I am the passenger?

Yes and yes. According to Pennsylvania v. Mimms, a police officer can ask the driver out of the vehicle as a matter of course, even if he does not have reasonable suspicion that there driver is armed and dangerous. According to Maryland v. Wilson, a police officer can do the same for any passenger in the vehicle.

7. When can a police officer search my car?

A police officer can search your car when you give him consent to search it. He can also search your car if he has a search warrant. He can also search your car incident to a lawful arrest, although there can be limitations to this search in some places (in my state, a police officer cannot do it once you are handcuffed in the cruiser, and he cannot search the trunk).

In MOST states, a police officer can search your car without a warrant if he has probable cause to believe that there is contraband, evidence, or fruits of a crime in it. According to the federal case Carroll v. US, the US Supreme Court said that the mobile nature of a vehicle automatically qualifies as "exigent circumstances." This is called the "automobile exception." However, individual states can be more strict about restrictions on searches than the US Constitution. So, for example, in my state Carroll v. US does not apply, and I cannot search your car without a warrant, some other exigent circumstances, or another valid exception.

If a police department has a written inventory policy, a police officer can "inventory the contents of your vehicle" (effectively a search) any time that he is going to tow your car. The purpose of this inventory is to protect the police department and the tow company from liability if you say "I had $2,000 sitting under the front seat, my car was towed, and now it's gone."

Like with your person, a police officer can search your car if he has probable cause to believe that there is evidence or fruits of a crime in it, AND he there are exigent circumstances (see above).

This last one is tricky. If a police officer pulls you over, asks you to get out of the car, and has reasonable suspicion that you are armed and dangerous, he can conduct a "pat frisk" of your person (see above about pat frisk). Since you were in a vehicle, if he does this, he also has the right to conduct a limited search of your vehicle for weapons that were in your "wingspan." This is called a "vehicle pat frisk." Basically, if you are sitting at the wheel of your car, he could search anywhere that you would be able to reach while you were sitting there. Some courts have decided that this wingspan basically includes anywhere in the passenger compartment of the vehicle (although certainly not the trunk, for obvious reasons). Again, the purpose of this limited search is for officer safety (i.e. weapons), not contraband, although if while he is doing it he seems something that is immediately and clearly contraband, he can seize it.

8. If a police officer conducts an illegal search, will my case be thrown out?

It could be, but NOT NECESSARILY. If a police officer conducts an illegal search, the evidence gathered in that search and any other evidence found as a result of that (called the "fruits of the poisonous tree") will be deemed inadmissible in court. HOWEVER, if the police have other evidence (unrelated to the illegal search) that you committed the crime, they can still bring that forward and convict you. Also, if evidence was discovered during an illegal search that would have been discovered anyway (called "inevitable discovery"), it may be admissible.

I'll give you an example from real life. I stopped a girl who gave me a false name because she did not want me to find out that her license was suspended. When I did find out, I arrested her for driving under suspension and disobeying a police officer (for giving false name/DOB). After I placed her in handcuffs and put her in my cruiser, I asked her if there was anything illegal in her car without reading her Miranda (see Miranda below). When she said there was marijuana in the ash tray, I went and seized it. Her attorney attempted to suppress the marijuana evidence because I allegedly found it as a result of asking her incriminating questions while she was in custody without reading her Miranda. However, I was able to argue successfully that I would have inevitably found the marijuana anyway, because I was about to conduct an inventory of the contents of her vehicle prior to towing it (see inventory searches above). The evidence was allowed, and she was convicted.

9. When can a police officer arrest me?

In addition to any other requirements, a police officer needs probable cause that you committed a crime in order to arrest you. I will now give the other requirements that a police officer needs to arrest you in my state. I think it is fairly representative of other states, but again, your mileage may vary, so check local laws. A police officer can arrest you with an arrest warrant. He can arrest you without a warrant for a felony. He can arrest you without a warrant for a misdemeanor (or in my state, a violation) that occurs IN HIS PRESENCE. In my state, he can arrest you without a warrant for restraining order violations and domestic violence offenses within 12 hours of the offense. As always, he can arrest you without a warrant if he has probable cause AND there are some other "exigent circumstances." An example of this is if you are near the border to another state, and if he goes to get a warrant, you are likely to flee the state in order to avoid being arrested.

10. Can a police officer put me in handcuffs even if he doesn't arrest me?

Yes. A police officer can arrest you but not put you in handcuffs. And he can put you in handcuffs but not arrest you. He can put you in handcuffs if he reasonably believes that it is necessary for the safety of you, him and/or others. So, for example, if I roll up on a domestic disturbance, I may put both parties in handcuffs for safety's sake while I figure out what the heck is going on. Then, when I determine who the primary aggressor is, I can arrest that party and release the other one.

11. When does a police officer have to read me my Miranda rights?

There are two circumstances that have to be met for a police officer to have to read you Miranda. They are CUSTODY and INTERROGATION. So, a police officer can arrest you and not read you Miranda, as long as he does not interrogate you. This means that he can even ask you questions, as long as the questions/answers are not incriminating in nature (i.e. name, date of birth, etc.). Also, a police officer can interrogate you about a crime without reading you Miranda as long as you aren't in custody. When I am interviewing someone, I simply tell them that they do not have to answer questions that they don't want to and that they are free to leave at anytime. Other factors leading to "custody" can include how many officers are present, whether you are in handcuffs or not, and a host of other things.

If you are in custody, and a police officer does not read you Miranda rights, and then asks you questions of an incriminating nature, that does not mean your case will be dismissed. It means that the incriminating statements that you make will not be admissible. See my above example about the car stop and the marijuana in the ashtray. The judge can suppress the statements that the girl made about having marijuana in the ashtray, but the state can still bring forward other evidence than the statements (such as the marijuana itself).

Well, that's all for now. If I think of more later, I may do a Part II.