Written by sinsemillaplease.
This guide is intended to inform you of your constitutional rights while in the presence of law enforcement officers (LEOs) while on foot, behind the wheel, as a passenger and in your residence. The information I have provided is based on my knowledge of the constitution and case law (I’m pre-law), information provided by Norml and flexyourrights.org, local conferences on racial profiling, and a fair share of common sense. The laws cited here apply in the United States. Though many of the tips offered here are helpful in any LEO encounter, some of the protections against search do not apply to citizens of other countries.
You should know that some officers of the law will undoubtedly take offense to your knowledge and recitation of your rights but this does not give them reasonable suspicion or probable cause for detainment, arrest or search as I will define them later. Feel free to post additional advice so long as you can support it with the necessary case law or something else verifiable.
TYPES OF POLICE ENCOUNTERS:
Friendly Conversation or Otherwise Consensual, Casual Encounters
A law enforcement officer could at any time initiate a casual conversation with you. This could be in the form of a “Hi. How are you doing today? What are you up to?” or “Hey where you headed buddy?” or “Nice weather today huh?” etc. Definitively, a casual encounter is any time you speak to police with the freedom to terminate the encounter at your leisure. When engaged in a casual encounter you are not obligated to speak to the officer at all. You may refuse to provide a name or even refuse to open your mouth altogether. In most casual encounters it is wholly uneccesary to be this tight-lipped unless you have reason to believe that providing them with information could be detrimental to your freedom (ie you have high priority warrants or are on a name basis with cops as a wanted fugitive, etc). At any point in conversation you may leave without another word. If you are unsure of what type of situation you are in ask, “Am I free to go or are you detaining me?” If the officer does not have reasonable suspicion of criminal activity he cannot prevent you from leaving. The odor of marijuana does in fact constitute reasonable suspicion and probable cause if and only if the officer is trained in determing the length of time a residual odor of marijuana has been present.
If a LEO has reasonable suspicion that you have, are engaged in, or are about to engage in criminal activity they may detain you. A hunch does not constitue said suspicion and specific, articulable facts must be observed. This encounter is commonly known as a Terry stop based on the Supreme Court ruling in Terry v. Ohio. During detainment a LEO will ask you to identify yourself. In most cases you are required to do so and a verbal statement of your name suffices to satisfy the Stop and Identify statute. While refusing to provide a name does not constitue probable cause for a search or arrest it can constitute a crime in and of itself which could get you arrested anyway. Unless you have previously confirmed knowledge of a local statute that allows you to legally refuse, provide your name when requested. The 5th and 6th amendments allow you to refuse all other questions when not in the presence of an attorney. Pursuant to detainment, LEOs have the right to frisk your outer garments from head to toe for weapons, but not for drugs or paraphernalia. Detainment must be brief according to Terry v. Ohio so after a time ask, “Am I free to leave?”
A LEO must have probable cause to believe that you have committed a crime to arrest you. Under arrest LEOs are legally entitled to a warrantless search of you, anything you’re carrying and your immediate surroundings. An arresting officer is required to inform you of your Miranda rights, namely the right to remain silent, the right to have an attorney present and provided at the state’s expense, and that anything you say is admissible in court. If you are not read your rights nothing you say is admissible as evidence. Biographical booking information is exempt from Miranda protection and must be offered subsequent to arrest. Keep your mouth shut and call an attorney.
LEO INTERACTION GUIDE WHEN YOU ARE…
If ever you encounter a LEO on foot while you are minding your own business, you are not required by any statute to even entertain their presence. If they say anything to you, you are not required to respond in any fashion. Minding your own business assumes that you are not creating reasonable suspicion of a crime.
Items or behaviors that could constitue suspicion, alone or collectively:
- Odor of marijuana localized to the person or belongings
- Disorderly Conduct
- Visible Inebriation (Swerving, Heavily slurred speech, etc.)
- Paraphernalia or illegal contraband in sight
- Presence in public park or private (w/o permission) after hours
- Excessive Noise
- Evasive Conduct
- Rapid concealment of items
- Visible bulge at the waist or hand gesture to check for weapon
- Breaking curfew (if underage)
LEOs may not take kindly to being ignored so use your best judgment to exit the situation as quickly as possible without evading. Don’t forget, “Excuse me sir. Am I free to leave?” There is no law requiring you to carry identification on foot so you are also not required to provide it in a casual encounter. Be polite, respectful and calm and you will likely be left alone.
If asked, do not consent to any search. Refusing a search is protected by the 4th Amendment. As a rule, if a LEO has to ask, they do not have a warrant or probable cause to search you or your possessions. That being said, keep any illegal paraphernalia or contraband out of sight as police do not need a warrant or cause to seize illegal items that are in plain view. Also, do not attempt to destroy evidence. This would constitue an exigent circumstance under which a LEO could conduct a warrantless search. As always, don’t answer any questions without an attorney present unless you are fully aware of your innocence and of sound mind to navigate the conversation without incrimination.
Behind the Wheel
(See bottom for an in-depth guide to smoking in your car)
The requirements while driving are quite a bit different than what is required of pedestrians. To pull you over, a LEO must have reasonable suspicion as defined under Terry or you must have committed a traffic violation. You must provide a state-issued Driver’s License, vehicle registration and proof of insurance. You are not required to answer any other questions, but to a point, cooperation can make for a friendlier encounter. Use judgement in determining which questions may harmlessly appease the cop and which may serve to incriminate you. Do not confess to any wrongdoing. You may be asked to step out of your vehicle by the LEO. Refusal is not an option but ask, “Am I free to leave?” to ensure that you are actually being detained.
Here is an outline of appropriate behavior following a traffic stop:
1. Make no visible attempts to conceal evidence unless you can do so surreptitiously (w/o being noticed).
2. Pull over fully providing the officer with enough room to safely approach the vehicle. Turn off the car but leave the ignition set to accesory as to allow raising of the windows.
3. Do not reach for license or registration until told to do so. Do not store anything illegal near or with your license or registration. Turn down music.
4. Roll up all windows leaving the driver window open only enough to permit conversation.
5. Do not answer any questions, especially incriminating ones, except to invoke your 4th, 5th and 6th Amendment rights.
6. If asked to step out of the vehicle roll up your window and lock the door on the way out. Pocket your keys.
7. Remain calm and never physically resist.
8. Do not consent to any searches and do not confess to any wrongdoing.
9. Ask if you are free to leave.
LEOs with few options left to bust you will often threaten to bring in the K-9 unit. Do not fear these claims. If you are not being detained you are free to leave long before any K-9 unit could get to the scene. If you are being detained still refuse to consent to the search.
The law is a little vague in regards to what is required of passengers in motor vehicles. To be safe and avoid further harassment, provide only a verbal statement of your name if asked. You are not required to carry ID so do not provide any. Refuse to answer any other questions and verbally invoke your 6th amendment right to an attorney before questioning in a polite and respectful manner. If not addressed by the LEO, keep your mouth shut and your hands still. It is important to note that in many states the arrest of a passenger gives a LEO the right to search the areas of the vehicle that are or were immediately available to the passenger, including the glovebox for front seat passengers.
In Your Residence
Your residence is the area most well protected from search and seizure under the 4th Amendment. If a LEO knocks at your door ask from a nearby window how you may be of assistance to the officer. Do not leave your property during the encounter. It provides you with many protections. If no window is present, step outside to speak to the officer and close the door behind you. Be sure to conceal anything illegal before opening the door. The plain sight rule always applies. A LEO is not permitted to enter your home without a warrant unless there are exigent circumstances (evidence of risk of physical harm to occupants, etc.) Remain calm and respectfully invoke your 4th Amendment rights against search if the officer requests to enter. Be as cooperative as necessary without incrimination. If the officer asks you to simply quiet down agree to do so. Do not confess to any wrongdoing. Do not fear a threat of a warrant if one is not present. Warrants require probable cause and if you’ve followed these guidelines you shouldn’t have provided them with any.
IN THE EVENT OF A LEGAL SEARCH WITH WARRANT:
1. Do not consent to the search but do not resist. There is always the possibility that the warrant is invalid but if you consent they don’t need it anyway.
2. Do not provide assistance in locating anything. They cannot use this against you and there is always the possibility that they will not find anything they are looking for. (A warrant was served on my dorm and the cops left me a bowl in my backpack.)
3. Shut up.
4. Call an attorney.
IN REGARDS TO SNITCHING:
1. In most cases it won’t help.
2. If you’re not yet awake and you haven’t smelled the coffee… We are living in a police state. Look at Professor Gates’ case, look at the EMT who got pulled over and assualted by two Oklahoma state troopers, look at Shem Walker who got shot and killed by an undercover cop who was sitting on his stoop and refused to leave when instructed because he was wearing headphones and listening to a buy bust operation, look at David Mayo who was convicted after the cops secured a search warrant to his home based on a purchase invoice for grow lights that the cops never even had and never showed to the warrant-granting judge… the list goes on and on.
I hate that we have to be adversaries of those who we pay to protect and serve but that’s the way it is. Our founding fathers formed the constitution to prohibit federal police but now we have the FBI, DEA, ATF, and Secret Service. We’ve slowly allowed police forces to take control of our rights and we haven’t put in the proper checks and balances to keep them from becoming a bureaucratic, tyrannical force wrought with corruption. It is our supreme duty as citizens to stand up for our rights and the rights of others who police wish to destroy. Even dangerous drug dealers have rights and if they have theirs trampled its one step closer to complete loss of rights for all.
ITEMS TO KEEP ON YOUR PERSON TO AVOID CREATING REASONABLE SUSPICION:
- Rhoto V eyedrops (They work the best. Do not use as a LEO approaches you.)
- Febreze, Cologne or some form of odor neutralizer (Apply lightly and in advance of an LEO encounter.)
- Backpack (To conceal any item too large for your pockets.)
LOCATIONS WHERE ENTRANCE CONSTITUTES PROBABLE CAUSE TO SEARCH:
- International Borders
- Sports Arenas
- Private Property
Here’s a link to the NORML Freedom Card (A pocket-sized reference containing your rights when confronted by a LEO.
SMOKING CANNABIS IN YOUR CAR
This is one my favorite pastimes and also one of the things I am most paranoid about. We all know smoking produces a fairly potent scent that tends to linger, especially within the closed confines of an automobile. There are several things you can do to keep your in-car smoking session from becoming a police encounter. I will also offer tips as to what you can do if you encounter police despite your best efforts at avoiding them. This will be the most hypocritical of all advice I ever give on GC so prepare yourself… and please refrain from reminding me of how big a hypocrite I am. In my opinion, being a hypocrite makes me just like everybody else.
Do not smoke before or while driving.
As the driver of a motor vehicle, your foremost responsibility is to maintain control of the vehicle for your own sake as well as the safety of any passengers and other drivers on the road. Everything else takes a backseat to safety… PUN! Though cannabis is not as detrimental an intoxicant as alcohol, it is proven to slow reaction time. In a sticky situation, a split second delay in reaction could be fatal. Though many studies have shown that cannabis-intoxicated drivers are more risk-aversive and obey posted limits more often that those who aren’t intoxicated, “high driving” can still have serious negative consequences. That being said, I wrote this and I do it all the time anyway. If you’re going to ignore this advice make sure you fully understand the potential consequences, as I do.
If you’ve been smoking in your car your windows should be all the way down and your a/c fans should be all the way up (a/c cooling off). This allows for full circulation of air through your cabin and the a/c vents. If you have dank, smelly bud keep it in a closed container (not a bag) and store it in a closed off area (trunk is best, locked glovebox is second). Pine tree car fresheners are always a good idea, especially the royal pine variety. They mask the smell of weed like nobody’s business. Do not create reasonable suspicion or violate traffic law to merit a Terry stop. This means you should never be smoking in a car with any physical deficiencies such as broken/blown out lights, old tags, rusted plates, missing mirrors, etc. If you do it anyways you’re asking for trouble and may the cannabis gods be with you. Obey all laws to the letter.
If you are stopped anyway, consult the traffic stop section of this guide. Do not forget to ask why you were stopped. Repeat after me, “Sir why did you pull me over?” Without reasonable suspicion of a crime or violation of a traffic law, detaining you for any period of time is unconstitutional and grounds to have any subsequent arrest or search thrown out in court.
Do not spray air freshener. It is already too late for that and it could serve as a part of reasonable suspicion, though by itself it is innocuous. Be sure nothing illegal is in plain view and leave only your driver window down and only enough to speak to the LEO. Do not give him enough room to stick his nose in your car. If the LEO insists that he smells burnt marijuana, deny his claim and refuse the search if he requests. He may decide that the smell is reasonable suspicion and decide to detain you and in limited circumstances may tell you that he is calling in the dogs. Do not be afraid and still do not consent to a search. Offering consent waives your 4th amendment protection against unlawful search and you are then at the mercy of the LEO. If you refuse to consent you always have the opportunity to argue in court that the search was unconstitutional and if you forward your complaint to your local ACLU branch there is a good chance they will weigh in on the matter in some form. The political clout of the ACLU has a tendency to sway judges to behave themselves on the bench.
Unfortunately 420Skunk420, there is no precedent for calling in extraneous witnesses to the scene to verify or negate claims that the odor of marijuana is present. That being said, its definitely worth a try. If it ever happens to you call your most reputable friend to the scene as soon as you get a chance. As long as they don’t obstruct justice they can be at the scene and get video evidence of everything as well. The presence of witnesses has a chilling effect on police misconduct, especially when video cameras are involved.
The odor of marijuana does constitute probable cause to search your vehicle without a warrant. Marijuana found in a vehicle after a warrantless search cannot be used to bolster an LEOs claim of probable cause. In other words, the fact that you did have marijuana does not in any way justify the search in the eyes of the law. Many defense attorneys have successfully quashed evidence from such warrantless searches when the LEO was not specifically trained to determine how long the odor lingers in a vehicle after being present or how to distinguish between those who possessed/smoked marijuana and those who were merely present at the time. Most LEOs do not receive such training, therefore you should always encourage defense attorneys to make this argument. Here is a bit of scientific research that could be useful for such a defense strategy.
Drugged driving laws vary widely from state to state. For example, in Michigan (Where I live) I have been drugged driving every day for almost three years straight. If I have any detectable level of THC metabolites in my body, I am drugged driving according to the law. It doesn’t matter that THC metabolites are not psychoactive. Make an effort to know your local ordinances and state laws regarding drugged driving.
NEVER hotbox a moving vehicle. This is possibly the dumbest choice you could ever make while smoking in a car. The odor of marijuana will permeate your clothes, your upholstery, and your skin. You cannot hotbox a car and not come out smelling like a garden in full bloom. If you want to hotbox do it while safely parked on your own property.
Note: I know the fact that weed odor constitutes probable cause is very scary. The only time I was ever pulled over, I was currently smoking a joint of the most potent-smelling weed I have ever encountered, Cat Piss. The windows down method saved my life. The trooper never even hinted at smelling marijuana at all. Do not give the odor a chance to build up and stick to surfaces in your car and you will be forever grateful that you didn’t… Trust me.
Thank you for reading and have a good, LEO-free day!
Guide via Grasscity.