This is the time of year when families pack into minivans to drive to grandma’s house and friends make the trek to ski in a place sprinkled with Douglas-firs. Yet those who consume cannabis may be at legal risk.
Criminal law has had a negligible impact on marijuana consumption. I dare you to cogently argue otherwise. Smoking marijuana should be a private, consensual act beyond the reach of police in a democratic society. In the year 2015 twenty-three states allow some form of legal marijuana and voters in four states and Washington, D.C., have voted to allow recreational use.
Today if you are white and over the age of 30, you are unlikely to get caught and convicted of pot possession. The right to be free of unreasonable search and seizure is one of the highest rights under the U.S. Constitution. All persons have a reasonable expectation of privacy regarding anything on their person.
The U.S. Supreme Court has ruled that an individual has the right to the same privacy with the items in their car as he/she has at home. Yes, Virginia, the Fourth Amendment prohibits unreasonable searches and seizures.
In most cases, police must have a warrant to search you and your personal belongings. However, if a joint is in plain view it allows officers to seize the incriminating evidence without a search warrant. If a cop has to open a briefcase or look under a newspaper covering your stash, then the marijuana is not in plain view.
Law enforcement regularly cites “pot odor” as reason to search. Some courts have found that if there is an obvious smell of marijuana (burnt or fresh) that justifies enough to constitute probable cause for a warrantless search. Other jurisdictions find that odor may create probable cause to get a search warrant but it does not justify a warrantless search of the car itself.
If the police stop you for speeding and illegally search your car, unless the marijuana is in plain sight or found because you give the officer permission to look in your vehicle, evidence that the police discovered marijuana in your car should be excluded. You cannot be convicted of possession based on illegally obtained evidence.
I’m in this legalization fight with you. I want you to carefully and responsibly enjoy cannabis. Doing so means being a smart grownup. Do not smoke and drive. Do not smoke in your car. Remember to keep your stash out of sight. Wishing all News Munchies fans an outstanding holiday and safe and happy New Year.