If you use pot you are a criminal.
This is true even in Colorado and Washington, where the feds continue to outlaw cannabis. This is also true in California and other states that provide medical protection. This means the police not only have the right, but the obligation to try and stop you (though state police cannot enforce federal law). Fortunately, you do not have to help them. The United States Constitution gives you rights that protect you during police encounters. It is the job of the police to find evidence of a crime. It is not your job to confess or help them. They get paid quite well, so please do not do their job for them. Your job is to do and say the right things to protect yourself and defend your rights.
During a police encounter, the best case scenario is you will be let go with a warning or simple citation. The worst case is, you or someone you love will get hurt. No one should be the victim of police brutality, but it happens. Cops are jumpy. They are trained to be suspicious. Do not make any sudden moves they can claim were threatening. Be polite and respectful, even if the courtesy is not returned. Remember, the police do not have the final word and while they may be able to harass, intimidate, and arrest you, the real fight is in the courtroom before the judge and jury. But you must actually survive the police encounter first before you can win the battle in court.
To win that court battle, your lawyer needs to be able to prove the police acted illegally and the evidence should therefore be thrown out. The goal is to get all the evidence tossed so that there is no case left against you. If you give police permission, your lawyer will not be able to argue they acted illegally and there will not be much s/he can do to defend you. This is why what you do and say are very important. Your lawyer needs you to say the “magic words.” These are words that limit what the police can do and will help your lawyer prove the police acted illegally.
The Magic Words
What are the magic words, you ask? The first magic words can set you free. Simply ask,
“AM I FREE TO GO?”
If they reply that you are free to go, then you are free to go. You may have to wait for the officer to finish the citation, but yes, you are free to go. If you are not free to go, then you must use the other magic words,
“I DO NOT CONSENT TO ANY SEARCHES,”
“I WANT TO REMAIN SILENT,”
“I WANT A LAWYER.”
You must use all of the magic words and use them in this order. You must memorize and practice the magic words. During a stop, the police will not always tell you your rights or help you understand them. In fact, they are trained to harass, scare, and trick you into giving up your rights. You have to be strong while they get in your face and insult you. They are even allowed to lie. Do not believe them. Say the magic words, follow police orders, and shut up!
How do the magic words work?
The first question, “Am I free to go,” clarifies if you are being detained or not. If you are being detained, the police cannot ask you questions without reading you your rights, just like on the TV cop shows. If they do not read you your rights, your lawyer can use this against them in court.
The second statement, “I do not consent to any searches,” is critical. The cops are not allowed to just search you for any reason. They have to meet certain requirements like having probable cause or a warrant. Even if they have a warrant, they can only search within certain limits. For example, if the warrant is for plants, they cannot necessarily search drawers. But if you give consent, you are giving permission to search everywhere. Never consent to any searches! It will never help you or get the cops to go easy on you. If they need consent then they have nothing else against you so don’t give it to them. If the police think they do not need consent, they will go ahead and search after you say the magic words. Stand out of the way and be quiet while they search. Maybe they find something maybe they don’t.
“I want to remain silent,” is one of the trickier magic words. The Supreme Court has declared that in order to use your right to remain silent, you must first speak up and say you want to remain silent. After you say it, the police are still allowed to continue to question and harass you. You must not speak up and if you do, you have to say “I want to remain silent,” all over again. For some reason, the Supreme Court thinks this is all very easy to do during a police encounter.
Don’t worry. The last set of magic words are here to help. When you tell the police, “I want a lawyer,” they are not allowed to talk to you again until you have a lawyer with you. If they do talk to you and you accidentally talk back, your lawyer will be able to throw it out in court even if you forget to say “I want to remain silent,” after you talk. Asking for a lawyer is the ultimate legal block against the police. You do not need to ask for a specific lawyer or worry about paying if you cannot afford it. If you are arrested, remain silent and wait to get bailed out. At your first court date you can ask for a free lawyer.
If a person says the magic words, but only cops can hear them, did they really say anything at all?
Yes! There are ways to prove you said the magic words even if there are no witnesses other than the police. It is becoming common for police to record encounters. Also more and more drivers are using dash cams. Bystanders and onlookers are also allowed to video record police encounters. Your lawyer can find these recordings and use them to help you. Most importantly, make it known as part of your public reputation that you would always use the magic words with police. Constantly tell your friends and family about the magic words and how they should use them too. Carry stickers, cards, and other items with the magic words. Wear t-shirts with the magic words. Make the magic words a part of your life.
What about patients?
Police encounters can be especially confusing for medical marijuana patients. Why did you go through all that trouble to get the right paperwork if you have to remain silent and get arrested? Well, you don’t. If the police stop you, you do not have to tell them you are a patient, if you grow, or where you get your medicine. You do not have to tell them anything! Say the magic words and let the cops do their job. If and when they find your pot, they should also find your patient paperwork whether it is a doctor’s letter or state card. Tape the letter to the jar or put your patient card in the baggie. You do not want to have to talk and explain your patient status to police or ask to get your paperwork from your wallet. Let the police figure it out.
If the police ask you about your paperwork, you have to decide if you are going to talk to them. If they are trying to clarify and approve your paperwork, then maybe you want to answer their questions. If they disrespect your paperwork and ask you questions that don’t sound like they care about the law, maybe you don’t want to talk. You have to decide if talking will help or hurt you and it may not be so easy to tell. Once the police find your pot and know you are a patient, let them do what they are going to do, answer their questions if you think it will help, and then be silent. If you get a citation or are arrested, again your battle is in court and with proper documentation you should win.
A final caveat
The police cannot stop you for just any reason. They have to have evidence that a crime is being committed. That being said, the police stop people without any legal justification all the time. They stop people simply because of the way they look. This is called profiling. Racial profiling is rampant and young men of color know they can do everything right under the law and still get stopped. If you are profiled, it is a degrading experience, but it is one you can overcome by knowing your rights, using the magic words, and staying strong and silent. Once you are safe at home you can report the profiling to your local police watchdog organization or take official action against the police.
Remember, the goal of police encounters is to survive and stay alive!
Lauren A. Vazquez is the Fired Up Lawyer. She has been working to expand safe access and end cannabis prohibition for nearly a decade. Lauren offers legal services to members of the California medical cannabis industry and pro bono phone consultations for patients.