Police + Ganja

[Evancooleo]

3 friends and I are driving in a car the other day (all 18, except the person who has the bud on them is 17). We get pulled over because the driver didnt make a complete stop at a right turn on red, the police officer asked him to step out of the car, asked if he could search the car and he responded "I dont see a reason why you should search the car" the cop then called in for a k9 unit (which we saw lights flash in the distance just moments after the call was made). The driver realized a dog was coming so said the kid in the back had some. He handed it over (less than one gram) and will now have to go to court and might have a year of probation.

My questions here are

How is it that he called a k9 unit to search the car after he told the officer he could NOT search the car?

How is it that the driver gets no charge for not stopping, yet the person holding gets a citation?

And how is it there was no probable cause whatsoever, no smell, nothing in plain site.


Rights were never read either, if that makes a difference
All information is helpful, thanks much

 

[Keith Lake]

Hi,

I'm not a lawyer but I'll take a stab at your questions.

My questions here are

How is it that he called a k9 unit to search the car after he told the officer he could NOT search the car?

LEOs request to search the car was for the inside of the car. They can bring dogs around the outside with or without your consent - though in some states this is at issue because it's been considered unreasonable detainment without cause.

You should always ask if you are free to go and note the time; maybe more ammunition for your lawyer at a later date if things go downhill

They ask you for consent because if you waive your rights and let them search, you can't contest the search at trial so probable cause becomes mute.

How is it that the driver gets no charge for not stopping, yet the person holding gets a citation?

LEO has discretion whether to charge the driver for failing to stop. I'm guessing but because the driver ratted-out the kid - he let the rolling stop slide.

And how is it there was no probable cause whatsoever, no smell, nothing in plain site.

A probable cause defense only comes into play if you refuse the search and LEO plunders ahead anyway. In court he'd otherwise have to make his case that he had a valid reason to search (saw something, smelled something, heard something).

When someone in the car admits someone is holding - rights to deny a search are waived because probable cause was offered up on a silver platter

Rights were never read either, if that makes a difference
All information is helpful, thanks much

You need to give more information on this bit. You said he had to go to court and might get probation for a year, but you didn't say what type of citation (in a decrim state?) etc.

Rights only need to be read once you're in a custodial situation. This is why you need to ask if you are free to leave or if you are being detained- it establishes you're not free to leave (custodial) or calls the cops bluff and you can leave (then do so immediately).

Maybe there is a point of attack here (kid not being read his rights before the cop asked him for the weed), maybe not. You should check with a lawyer to be sure.

Once the driver says the kid was holding, the kid is for sure going to get searched. At that point the kid is screwed but this is where (in my layman opinion) the cop should have read the kid his rights.

Points to think about / how to improve your chances in the future

- how assertively the driver refused (i,e. saying there is no reason to search is not the same as saying "no you do not have my consent to search")

- It's important to remember (even under the stress of a stop where you're holding) that you have the right to remain silent. In my view the driver waived his right to remain silent by offering up the kid

- It's easy for me to say from the comfort of my stoned couch (me not the couch) but it's always better to passively assert your rights. At the end of the day the penalty is the same. Why hand em your ass voluntarily. Leave your lawyer as many options as you can.

- The driver was lucky he didn't get DRE and drug tested. If you guys were in a per se state the driver could have had a way worse outcome. Check the norml site for the per se laws in your state.

best of luck to you guys, I hope you man gets off. It's BS that in this day and age we are still dealing with the harassment of the plant loving people.

Stop back and tell us how you make out.

 

[Evancooleo]

wow man, thanks alot, I will stop by the site and see what kind of information I can dig up. I live in Georgia by the way, I will post back here when I have more info.

 

[Evancooleo]

So I went here: Georgia - NORML

It says in the details that the drivers license will also be revoked for 6 months, does this mean in all cases, or possibly? I ask because the 17 y/o is in school.

 

[Keith Lake]

Here's the link you need to read ... Georgia - NORML

Geogia is not the best state to have a problem but it's not the worst

- 6 month loss of license for first offense (only if convicted)
- can get license back after 6 months only if completion of a drug program
- probation for first offense (includes piss testing)
- charge dismissed after 6 months if no further problems during probabtion


I'd suggest the kid find a lawyer ASAP. Better to go into a little debt to avoid a conviction and the corresponding hassles; at least from my standpoint.

Most state bar associations have a free 30 minute initial consultation if you go through their referral service. Suggest you get someone that specializes in MJ cases.


This site also has a listing of GA lawyers... Georgia State Marijuana Lawyer Listings

Let us know how you make out - and good luck

 

[RooRman]

Soniq 420, youv'e got this one covered.

However, if questioned, detained, or placed under arrest an officer MUST read you your basic Miranda rights. Not doing so is grounds for the case to be dismissed.

 

[the_alchemist]

the police only have to Mirandize you if and when they place you in custody. upon arresting you, you are read your Miranda Rights which inform you that you are now in custody and anything you say or do can and will be used against you in a court of law...and so on and so forth...excuse the paraphrasing. being detained to answer questions upon suspicion of wrong doing does not mandate that law enforcement Mirandize you.

regardless, the best thing to do is to be cooperative while saying as little as possible. do not offer up any information voluntarily...answer only what you are asked...no more and no less. obviously, you are better off offering up info if the potential consequences are going to be worse as in this particular situation wrt to the k9 unit coming.

don't forget, regardless of the state, your rights to privacy and your protections against any search and seizure violations are decreased (for lack of a better word) when you are stopped while operating a vehicle. law enforcement has far more wiggle room wrt traffic stops.

best of luck in resolving your situation. unfortunately, the south is a difficult place for these matters.

 

[Keith Lake]

Hi Alchemist, welcome to the site. I'm interested in discussing some of the points you made where I believe we differ. Much respect to you...

being detained to answer questions upon suspicion of wrong doing does not mandate that law enforcement Mirandize you.

I'm not a lawyer, but I'm not sure what you've said is completely accurate.

In the United States, the Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked guilt-seeking questions relating to the commission of a crime. A custodial situation is one in which the suspect's freedom of movement is restrained although he or she is not under arrest.​

Miranda warning - Wikipedia, the free encyclopedia

So in my view, once the driver has offered that the kid has weed, and the cop goes to question the kid, he's investigating a possible crime. If the kid asks if he's free to go and the cop won't let him and presses forward with the questions/investigation, then I think the lawyers got some ammunition because he hasn't given the miranda warning.

regardless, the best thing to do is to be cooperative while saying as little as possible. do not offer up any information voluntarily...answer only what you are asked...no more and no less.

I'd agree with being polite and non-confrontational, (don't resist) but I don't agree with being cooperative. I definately don't agree to answering only what is being asked. I see what you are getting at - about not getting tricked into revealing more information than you intend, but LEO will keep probing once he gets you going and it's better to give your lawyer something to work with

I would recommend only providing you name, license & registration, then asking for a lawyer - then shutting up completely

obviously, you are better off offering up info if the potential consequences are going to be worse as in this particular situation wrt to the k9 unit coming.

With respect, the cops always say stuff like this when they're trying to intimidate you into confessing.

Don't make their job any easier for them.

The penalty is no worse if they find you holding than if you offer yourself up to them voluntarilly. What percentage of the time do they say they'll bring the dogs just as a bluff.

I'd say it's better to let them do what they're going to do (or not do) and give your lawyer some room to contest the actions.

I'm always looking to learn, and like I said I'm not a lawyer. Please feel free to deconstruct my arguments if they are wrong.

 

[the_alchemist]

B"H

until becoming too disabled to do so, having practiced criminal defense while in law school and a bit thereafter in la, ca working on motions to quash evidence resulting from what were arguably bad search and seizures. (although, a good defense lawyer always goes after the search and seizure just for sh*ts and giggles and anything else they can try and quash) please understand, these were very large, federal drug cases where it was not mj, but far heavier substances in mass quantities from south america, and there were guns and multiple clips along with millions in cash all in duffel bags involved. i also did a few other small cases like dui's with small quantities of illegal drugs, when i say 'cooperative,' i mean not combative so as to create an attitude which will only escalate the situation. in a dui, for example, despite california's presumption of being under the influence if they refuse to cooperate with the tests, one should always refuse a breathalyzer and blood test as they can be tough to beat. this is advice i overheard from a close friend of my family long before i went to law school who was a cop and Jewish to boot which is odd. (vis a vis, in terms of refusing the test) it does give a lawyer more wiggle room as they have no actual blood-alcohol level that is precise for prosecution and determination of sentence if found guilty unless you are not under the influence in anyway. there is no definitive proof they exceeded the legal limit. i guess cooperative can be interpreted as "say everything," but i mean it more in terms of attitude and response to request for license and registration info as well as where you are coming from and going to - basic and innocent facts unless they are not innocent. just do not act combative or lie as it is suspicious and will only escalate things in all likelihood. avoiding answering basic info makes it seem like you are hiding something too and can cause things to escalate. it is a judgment call that can only be made at the time under the exact circumstances. being armed with the information to weigh the risks and benefits is helpful in advance.

you also have to remember the penalties are much stricter for minors and or persons under 21 which applies here too; i believe that is the case in all states. i know he was in a bad place...geographically speaking wrt LEO's tolerance. i have never been to the south other than to get on a cruise ship in the part of florida that is not the south - nor would i want to be in the south or live there for many reasons which i do not feel are relevant to discuss here. i just saw you are in the south; please know, it is nothing personal.

in the case discussed here, if he did not offer up, the k9's would have discovered it and he could have gotten in much bigger trouble. he was saving his own behind. as i understand, the driver was let free with a warning basically whether or not it was formally written up or not. it was the minor in the back seat who was cited for possession which is not being put into custody as it was a misdemeanor citation due to the low quantity as i understand it.

btw, you have no right to a lawyer until you already in custody, been transported to the station, processed, and they begin interrogating you. from a practical standpoint, you cannot call your lawyer from the street before they transport you. you just invoke your fifth amendment right, and you can keep quiet thru that process, but you cannot call a lawyer yet. you get your call at the station. after you do all that, you are still not in the clear wrt getting your lawyer as it often plays out this way. if you ask for your lawyer when you are finally allowed to invoke the privilege, they can just stop questioning and hold off calling your lawyer, then come back to see if you are scared, hot, in need of a rest room, hungry, thirsty, and/or claustrophobic enough to just start talking again. it happens all the time. however, you should not proffer evidence of guilt or any wrongdoing. as you said, cooperate with requests for id and basic questions which do not implicate you and save your story for your lawyer. unfortunately, your story and that of LEO's are often vastly different as discussed below - how much LEO's lie.

you are correct about asking whether or not you are being held for questioning, are free to go, or are in custody then you give your lawyer some play if you were actually in custody. but, they Mirandize, when they tell you thay are placing you in custody and under arrest. also, they do sometimes Mirandize ineffectively, for example when confronting a foreign speaking suspect as there is a language barrier the lawyer can argue depending on the defendant's country of origin and language. there are not many officers trained in various african or persian dialects. however, this is not including spanish as they have it on a card in spanish as well as officers trained to Mirandize in spanish.

i can only speak in generalities without all the info and doing some research as i am now between the two coasts, totally disabled, and have had my bar card in CA placed on inactive status as i will never practice again due to the nature and extent of my disabilities or medical challenges rather! more p.c. the penalties have changed and there are slight alterations in the laws due to case precedents that have come down since i practiced 15 years ago or more.

(i am sorry, i did not read your entire response, (i have now edited my post), but i believe we are saying essentially the same thing.) i am not deconstructing your argument, but adding some praqctical information based in real life experience of clients i once represented. as i said, we basically agree. btw, i never rely on wikipedia because you never know who put what in there. i would look to black's law dictionary under these circumstances to begin with. something i was taught about wiki long ago wrt any information. i imagine some of it is correct, but the sources are not entirely reliable which causes me pause.

i should say that in most cities dogs are fairly common nowadays. having a service animal myself, i am familiar with the issue of service and working animals and the community thereabout as i volunteer my time for all that i have gotten from having my own service animal. these animals can be such incredible help to people. i work with people who train police dogs as well as service animals. k9s do exist in most police units/stations. not in every car, but there are a few to go around especially with the mandatory stop points they use now regularly to deter crime and of course ever since 9/11. they have become a necessity for reasons even beyond just drugs yet come in handy for drugs more than other things i would bet! i cannot give you any bluff facts, but i would be concerned if i heard that the LEO called for k9 back-up. i have seen police k9 units just driving around their normal beats on both coasts fairly often.

it is not a matter of making their job easier, it is a matter of saving your own rear end! furthermore, i believe depending on the severity of the situation, you can get a better result by being honest sometimes. it is a gamble i suppose, but under the facts here, i would have done the same thing. granted, as a 38 year old woman, i would probably be treated with a bit more deference than 4 young men (barely of legal age) on x-mas eve which is a big night for LEO's to go fishing. the holidays are always when they are fishing the most. fortunately, it seems things went well in this particular case as it could have been worse for the driver - as per comments above about my understanding of the outcome. (btw...i have just started writing in forums, so i apologize i am not too adept at doing the quote and answer thing which makes following the response better. i promise i will work to better learn to use these forums, so it is easier to follow my response. thanks in advance for your patience and understanding.)!

one thing that has not changed in 15 years and will never change is the fact LEO's lie more than any defense lawyer or any other lawyer for that matter. they are worse than the prosecutors too who do lie and/or withhold evidence which exonerates the defendant during discovery phase, and beyond their own lies, they perpetuate the lies of law enforcement whether knowingly or not. LEO's lie to them and in their incident reports. it is the reason i would only do defense work. it is sickening the lengths to which i have seen them go to: everything from planting evidence, making false reports of what was said, and backing each other up on the lies to worse. it also continues during the investigation phase of things before the discovery phase of it all. it is truly pathetic and sad. defense lawyers bear heavy weights on their shoulders as they often hold their clients' lives in their hands. there is a reason there is something called "trial mood" which is exhibited by defense lawyers amongst others when they have big stakes on the table. i do not think a person's freedom or life is something one fights for without having great weights on their shoulders. especially when you are talking hard and long time for in most federal prisons (not the type with dorms) as well as maximum security state prisons. not to mention the death penalty cases which are irreversible if the execution takes place after exhausting all the appeals. then, there is the terrible manner in which they use to execute where even lethal injections can be worse than the electric chair. it is hard to imagine any thing worse than the electric chair if you know what really happens. i obviously am not a proponent of the death penalty regardless of the way it is carried out. the system is messed up, but it is the best "system" possible given nothing in a "system" can be done on a case by case basis allowing for all sorts of exceptions and such. i am not saying there is not room for improvement, but look around the world, things are much worse for defendants. moreover, just look at how many times dna has exonerated people who confessed because they effectively were so broken down, they had no choice. (something you addressed a bit.) they do what they have to do to get the result they want especdially when it is a more serious offense or it triggers the felony-murder or felony-conspiracy charges and presumably penalties. it truly sickens me to my stomach.

they are worse than the doctors who get you hooked then abandon you for being an addict which is low given the hypocratic oath. then again, it was named that for a reason! LOL! actually, they are about equal given the nature of the medical profession's contribution to society vs. the police's. the police is just another military organization with a strong brotherhood bond which causes many of the problems with the system to start with. boy...this stuff can really steam me up...if you could not tell by the stream of consciousness-didactic writing and thinking exhibited herein along with a lack of sleep. but, still i could go on and on...! we all can!

thanks for your comments though as it is helpful to be sure i am understood as i intended to be. hope it clarifies what i meant. if not, send me a pm to address it more. sorry i am all over the place in my comments but i am editing here, there and everywhere, and i need a nap as i have yet to sleep at all for the night. not to mention my grammar and run-ons. i will not make an excuse for not using caps properly as it is a style thing for me! lol! my dogs are so annoyed i never went to the bedroom they keep moving about huffing and puffing to convey their frustrations. take care. be well and stay well. peace and safety always!

 

[zolar]

if you live in a small town the cops most likely already have an idea of who is doing what from gossip etc

and in cities it seems that any carload of kids that is out late or isn't a couple making out is automatically under suspicion these days

used to be if theres not obvious smell or plain view if you stayed calm and acted respectful and took the ticket without back talk
it would be over and done in a few minutes and you could get outa dodge......

i have problems with traffic stops due to several city cops who remember me from fighting a ticket and winning against them
what objective public servants......

 

[RooRman]

In the United States, the Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked guilt-seeking questions relating to the commission of a crime. A custodial situation is one in which the suspect's freedom of movement is restrained although he or she is not under arrest.

Exactly. You do not need to be arrested to mandate that you be made aware of your rights. There is a very fine line between handing out a traffic ticket (no miranda warning) and investigating possible illegal activity which would require that you be made aware of your right to remain silent.

Be polite, but also stern. All you are required to provide is identification and any paperwork relevant to the operation of a motor vehicle... that is it. Furthermore, ask exactly why you are being detained. Where you are going and what you are doing is all very interesting but is quite frankly none of the LEO's business.

 

[ickygreenthc]

Hey man whats the first thing a cop asks when you get pulled over? "You know why im pulling you over?"...BOOM and right there whatever answer u give is CRITICAL..to what will happen..than and being a dumbass and having paraphanelia all over the car..

 

[CnstntGrdnr]

Dude, next time your friend should just EAT THE WEED when you get pulled over! Seriously, yeah, you kinda waste the whole nug or whatever, but at least you get something out of it and the cops have nothing on you.

My friends and I were always at the ready to chomp down some weed if the cops got behind us.