The other day I was talking to a prosecutor. I told him that we needed to keep client’s public record clean. We don’t want words like “marijuana,” “drug paraphernalia,” and “criminal conviction” there. And he mischievously said, “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. So, how can you avoid a marijuana arrest in a car?
Safety in the final days of Prohibition
As of this writing, ten states have legal marijuana for responsible use by adults 21 years and older. And, most of the U.S. population now lives in a state with legal medical marijuana, including Minnesota. And hemp is now legal in Minnesota. Today in Minnesota, not all marijuana is illegal to possess.
We should all know by now that marijuana is safer than alcohol. After all, there is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.
But in Minnesota in 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives. We should re-legalize in Minnesota. And here is What Marijuana Legalization Should Look like in Minnesota.
In the meantime, know your rights. And watch your six!
What can you do to reduce the chance of getting caught? Here are nine tips for avoiding a marijuana arrest in a car:
1. Situational awareness
Guess where the vast majority of police contacts with people happen? Correct – in or near a motor vehicle. As a result, the best 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?
Be smart. Play the long game. If a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.
There will be a traffic stop. And when it does happen; marijuana should not be in the car.
Minnesota: If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, she:
- keeps it under the “small amount” 42.5 grams, plant-form only (not concentrates), but
- always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law. And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.
The number one way to avoid a marijuana arrest in a car is: don’t have it the car.
The most common excuse police officers use as probable cause to search after a traffic stop is “odor of marijuana.” The odor can be either fresh or burned. But this is prone to abuse by police officers since it’s impossible to verify.
Even so, avoid having the odor of marijuana either on your person or in your car.
And, if the odor of marijuana is there, be sure not to have any actual marijuana in your car.
Have you or anyone you know experienced “nose blindness?” A cigarette smoker may not be able to smell the odor of past cigarette use on another. And a person who has been drinking alcohol– can’t smell the odor of alcohol on another person. But non-users can smell it, right off.
Assume that if you’ve been smoking it that day, there is 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.)
The second way to avoid a marijuana arrest in a car is: don’t smoke in the car. Don’t have fresh in the car. And avoid any odor in the car.
2019 update: Now that hemp is legal to possess, odor alone is no longer sufficient for probable cause to search a car. Contact Attorney Thomas Gallagher for more on this.
“No, officer, I do not consent to a search.”
Remember Paul Simon’s song “50 ways to leave your lover?” Similarly, 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 insist. After all, it’s your legal right to be secure from searches and seizures, unless they have a search warrant or an exception to the warrant requirement. That’s the Fourth Amendment.
The rape metaphor: 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.” And if police coerce you into “consent to a search,” is that real consent?
Change it to sex. If someone coerces you into sex, did you consent? Your lawyer may need to make that argument. Far better if you resist all coercion, and do not consent.
If you do consent to a search, you lose your right to object to it later. Also, if police know they have no legal basis to search without “consent,” they may leave without searching.
The third way to avoid a marijuana arrest in a car is: do not consent to any search.
4. You can do both — the third possibility
Don’t lie and don’t admit. How?
Remain silent. Or if words do 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 answer!
Instead, remain silent – meaning you do not produce words. 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 that for a minute! Be ready for that trick. Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
The fourth way to avoid a marijuana arrest in a car is: avoid talking to police.
5. Unlawfully prolonged detention
“Am I free to leave?” Police stop you for a headlight out. Normally it takes ten minutes to complete the stop. Then they hand you the ticket, and walk away. The government intrusion upon your liberty is over. And you are “free to leave.”
Now, let’s change the scenario. Police stop you for something normally resulting in a traffic ticket in ten minutes. But this time the officer prolongs the detention. Is that legal?
The courts apply a “totality of the circumstances” balancing test. Courts balance the intrusion upon your Liberty, against the reasonable suspicion of criminal activity.
But one factor is: “did the person acquiesce to the detention? Did the person communicate a desire to leave?”
Police may say in court that “at that point, the person was free to leave; the prolonged time was consensual.” If believed, then the prolonged detention needs less justification; fewer facts supporting a reasonable suspicion of criminal activity.
Since “Fleeing a police officer” is a crime, whether police are detaining should be a simple black and white question. Either you are “free to leave,” or not.
It’s best to make a record. Ask: “Officer am I free to go?” And do it more than once. Say it loud and clear, for the camera. If you’re asking, you’re winning.
This will help your lawyer challenge the legality of the prolonged detention, search and arrest later.
Or, 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 the driver.)
The fifth way to avoid a marijuana arrest in a car is: if you’ve been detained for a while, ask “officer, am I free to go?” Repeat as necessary.
6. “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!
It’s best to say nothing. But if you want to say anything: “Officer, 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 talking.” Repeat as necessary.
No matter what they do or say, they cannot require you to speak. So don’t.
But follow physical police commands to:
- show your hands,
- lie down,
- hands behind your back,
- stand over there.
Again, however, do not speak.
The sixth way to avoid a marijuana arrest in a car: do not talk about marijuana, smoking, if you have any, where it is, anything at all.
7. Field Exercises
Sometimes police want to build a case for marijuana impaired driving. They ask you to perform “Field Sobriety Tests.”
But these are not scientifically valid. And their purpose is to incriminate. Even completely sober people have a difficult time “passing” them. If you do them, you will fail. If you don’t, you won’t.
What to do? Don’t!
Police cannot legally require you to do these field exercises. They include the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test. So, 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. Instead say: “Officer, I am aware of my legal rights. And I respectfully choose not to do any field exercises or tests.” Police will ask you again and again. 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.
Important: (If the police officer has a factual basis to suspect impaired driving, she can request that you blow into a Preliminary Breath Test (PBT) machine. And if you refuse, she can arrest you for that refusal.)
The seventh tip for avoiding a marijuana arrest in a car is: politely decline any request to perform Field Sobriety Tests.
8. Smile, you’re being recorded
From the traffic stop, to sitting in a squad car, to the police station, assume that you are being recorded.
This recording may later hurt you, or help you. And even when alone or with another person in the back of a police car, this is recorded. The recording is on, even when no police officer is in the car. Heads up!
Phone calls from jail are recorded for later use as evidence. Be aware of this. Avoid talking about the case in any of these contexts.
The eight tip for avoiding a marijuana arrest in a car is: be camera aware.
9. Keep your cool
If arrested, hitting the panic button will only make it worse. Police may try to exploit your trauma and emotional upset. So remain calm, cool, collected.
You can win the long game, 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. And most people will be able to get out within 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. In his spare time, he works on legalizing marijuana as a Board Member of Minnesota NORML.
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