The other day I was talking to a prosecutor. I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.” He responded mischievously with “You know how he could avoid all that don’t you? Don’t get caught.” He was joking, but like many jokes there was some truth in it.
As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana. We should all know by now that marijuana is safer than alcohol. There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs. But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.
What can you do to reduce the chance of getting caught? Here are nine tips:
- Situational awareness. Guess where the vast majority of police contacts with people happen? Correct – in or near a motor vehicle. As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle. Complacency can set in. If it hasn’t happened yet, it never will. Right? The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen. There will be a traffic stop. When it does happen; marijuana should not be in the car. If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
- Odor. The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned. This is prone to abuse by police officers since it’s impossible to verify. Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car. And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car. Have you or anyone you know experienced “nose blindness?” A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person. The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person. But non-users can smell it. It’s best to assume that if you’ve been smoking it that day, there may be odor. If it’s been smoked in the car, the odor is probably lingering in the car for a day or more. (Tip: don’t ever smoke in the car.)
- Consent? “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches. Make an excuse if you like: “I’m late, for a very important date.” But no excuse is necessary. You should not offer any justification for refusing a search. Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement. One of those exceptions is a consent search. Police often ask people “do you mind if I search”? The correct answer is, “I do not want to be searched.” If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search. Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
- You can do both: don’t lie and don’t admit. How? Remain silent. Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality. More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is. Wrong! Instead, remain silent – meaning words are not produced by you. Tightening your lips may help your resolve. If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not. And again, do not consent to a search. Police will try to make you think: “Busted. The jig is up. May as well come clean now. Give up. You cannot win at this point.” But don’t believe it for a minute! You need to be prepared. Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
- Unlawfully prolonged detention: “Am I free to leave?” Here is the scenario. You’re stopped by police for a headlight out, or speeding. Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away. You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.” Now, let’s change the scenario. You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal? Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity. But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?” A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.” If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity. Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question. Either you are “free to leave” or not. The best way to make a record of that is to ask: “Officer am I free to go now?” And don’t just do it once. Do it more than once. Say it loud and clear, for the camera and microphones. This will help your lawyer challenge the legality of the search and arrest later, should it come to that. At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop. (Yes, you can walk away from a car stop even if you’re not the passenger.)
- “You have the right to remain silent.” When you hear that, that is your cue to – what? It’s your cue to stop forming words and allowing them to escape your mouth! If you want to say anything, you can say: “Officer, I realize you are doing your job but I am not a lawyer or a police officer. I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.” Repeat as necessary. No matter what they do or say, they cannot require you to speak. So don’t. If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands. But do not speak.
- Field Exercises. Sometimes police may want to build a case for impaired driving. When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.” These are not scientifically valid and are designed to incriminate. Even completely sober people have a difficult time “passing” them. What to do? Don’t! Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test. You can and should refuse to do any of these. When you do, the police officer may invite an excuse. But don’t take that bait. Any excuse could be incriminating, even if falsely. Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.” You may get asked repeatedly. If so, just keep repeating that you choose not to do them – no excuses. (Who cares if you have one leg! That’s beside the point.) It’s your legal right. (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
- Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded. This recording may later hurt you, or help you. Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car. Phone calls from jail are almost always recorded for potential later use as evidence. Be aware of this. Avoid talking about the case in any of these contexts.
- Keep your cool if arrested. Hitting the panic button will only make it worse. Police may try to exploit your trauma and emotional upset. Remain calm. The long game can be won, by playing defense in the short game. You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent. Most people will be able to get out with a few days or less.
Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.
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