Carrying pot, processing pot, growing pot, consuming pot, buying pot — no matter where you are, can get you into sticky-icky situations with law enforcement. And you know this, man. Maybe you’re a slimeball and you deserve to get rousted by the fuzz. Maybe you’re all peace and rainbows and Gandhi-esque. Either way, we do have rights that we can assert in law enforcement encounters, regardless of the context or of who’s right or wrong or whatever.
Enter the Fired Up Lawyer, Attorney Lauren A. Vazquez. This past November, Vazquez published a very resourceful article in Ladybud Magazine: “How To Assert Your Rights When You Encounter the Police.”
Her opening line: “If you use pot, you are a criminal.”
Law enforcement targets criminal activity. As indicated by the title of the article, Vazquez gets into how exactly to assert your rights in law enforcement encounters. She’s all about the “magic words,” four different phrases that are to be used in a particular order in a sticky encounter with law enforcement. (And this applies to any encounter with law enforcement, regardless of whether it has anything to do with marijuana.)
Now, she gets into more detail in her article and you should definitely read it in its entirety, but I’ll summarize the basics of the magic words here. (Disclaimer: The information in this article is provided for informational purposes only and does not contain legal advice, legal opinions or any other form of advice regarding any specific facts or circumstances.)
1. “Am I free to go?”
This question clarifies whether or not you are being detained. If you aren’t being detained, you might still have to wait for law enforcement to finish writing you a citation, or whatever. But if you are being detained, then “the police cannot ask you questions without reading you your rights, just like on the TV cop shows,” she writes. If the police detain you and they don’t read you your rights, Vazquez advises in her article that “your lawyer can use this against them in court.”
2. “I do not consent to any searches.”
Police can’t search you without having a reason — “like having probable cause or a warrant,” Vazquez advises. And even then, there might be certain parameters around what exactly law enforcement can search. If you do grant law enforcement consent to search, then “you are giving them permission to search everywhere,” she writes. If you drop these magic words and law enforcement still searches, Vazquez advises quietly standing back and letting them search. “Maybe they find something, maybe they don’t.”
3. “I want to remain silent.”
In order to remain silent, you have to speak these words. If you declare these magic words, law enforcement may still continue to question you. If you still want to remain silent, then you have to repeat yourself: “I want to remain silent.”
4. “I want a lawyer.”
Vazquez advises that, “When you tell the police, ‘I want a lawyer,’ they are not allowed to talk to you again until you have a lawyer with you.” She writes that if you don’t have a lawyer or if you can’t afford one, then you can ask for a “free lawyer” at your first court date.
And if you’re a medical marijuana patient in a law enforcement encounter, Vazquez advises the same course of action — using the magic words. You don’t have to tell the police that you are a patient or where you get your meds. You don’t have to tell them anything. “If and when they find your pot,” she writes, “they should also find your patient paperwork, whether it is a doctor’s letter or a state card.”
Obviously you want to use your best judgement in a police encounter. If law enforcement is being cool, then maybe you do want to talk to them. But you don’t have to tell them anything. “Say the magic words, follow police orders, and shut up!” Vazquez says. Again, I suggest you read the article in its entirety. Here’s the link again.
I got Vazquez on the phone the other day to ask her about a couple of common legal issues in the marijuana realm. Vazquez did not remain silent. First, I asked her what she thinks is the most important thing weed people need to keep in mind when they’re in the midst of a law enforcement encounter (aside from the magic words). Vazquez said: “Don’t argue with the police because they don’t have the final say and it can only get you into more trouble or it can even get you hurt.”
We briefly discussed marijuana DUIs. I asked her if someone can get a marijuana DUI for having a weed pipe or some other paraphernalia within arm’s reach in the cab of their car.
Vazquez said that in California, law enforcement has to prove that you were impaired to issue a DUI. “In California,” she said, “the blood test isn’t enough. They have to prove impairment.” She continued, “It would help the police’s case if they could say that you were swerving or you didn’t stop at the stop sign, and that you looked high, your eyes were red, you were talking slow and it also smelled like pot and they saw a pipe. But if it’s just, ‘I saw a pipe and smelled pot,’ it might not be enough for a DUI charge or a blood test.”
So it’s kind of that thing again, where law enforcement doesn’t necessarily have the final say. But still, you probably don’t want to argue this point with a police officer on the side of the highway. And what’s more, maybe you don’t want to keep pipes or joints on-hand in the front seat of your vehicle. Just in case.
I also asked her about carrying weed and concentrates. She advised me of the California Medical Marijuana Program, which is the state ID card program for patients and caregivers. The program is voluntary and the cards are valid for one year from the date of issuance. The state charges $66 for the ID card and you can tack on whatever fees your county collects on that as well (you obtain your state ID card through the county).
From this handy chart, I see that 2,303 state medical marijuana ID cards have been issued in “Humbolt” County since 2005. Fascinating. If you are a qualified medical marijuana patient, you can contact the Humboldt County Department of Public Health in Eureka for information on obtaining your card. Their digits are (707) 445-6200.
Vazquez told me that the state ID card is a “get out of jail free card for eight ounces of weed or less.” However, she said that the “state ID card doesn’t say anything about quantities for concentrates. The assumption is that your letter [doctor’s recommendation] or state ID card will cover you for a personal use amount. But this is where the law and reality collide because most police officers don’t know or pretend not to know that hash is protected under Prop 215 and patients can have concentrates of all kinds.”
If you don’t have a doctor’s recommendation, carrying concentrates is a felony charge, Vazquez told me. If you do have a doctor’s recommendation, but you are carrying more than a “personal use amount,” that can land you in some trouble. What’s fuzzy here is that what constitutes a “personal use amount” of concentrates for medical marijuana patients isn’t explicitly clear in the state of California.
In a law enforcement encounter, the police make the call on what looks like a personal use amount of concentrates. And if you are arrested for possessing concentrates, then the DA will decide whether to bring charges. If you go to court, then it’s up to the jury to decide whether or not you were carrying a reasonable personal use amount of concentrates. (And you can only carry concentrates if you have a doctor’s recommendation.)
Now if we’re talking in terms of poundage, Vazquez said that “over eight ounces is where it starts to get harder to prove that it’s for personal use.” (Which could be unreasonable in some cases, right? Maybe you need a few pounds a year for yourself.) She went on to say, “If you have more than eight ounces and it’s not personal use, or it is personal use, but that’s not something you can prove, the back-up defense is the collective defense.” But you have to prove that you’re a member of a collective. And Vazquez told me, “If you can’t prove it on the roadside, you can prove it in court.”
Again, the disclaimer: The information in this article is provided for informational purposes only and does not contain legal advice, legal opinions or any other form of advice regarding any specific facts or circumstances.
We didn’t have time to get into much else in the way of marijuana laws and how they play out in police encounters, but what’s most important out of all of this is knowing your rights and being able to state them in a law enforcement encounter. This isn’t to say that you have to state your rights or that you want to state your rights in a law enforcement encounter, but keep them in your back pocket. And as Vazquez advised, the police don’t have the final say.
But sometimes police do have the final say because they just let you go, right? Like that time I got stopped in security at the Santa Rosa Airport with a couple grams of OG Kush. The TSA agent that found my container of cannabis, which was not exactly hidden, called in the local police to deal with me and my marijuana. TSA detained me, and while I waited for Santa Rosa PD to show up, I watched the agent take my jar of weed around to other TSA agents to brag about his bust. Then he took photographs of the small jar of weed with his cell phone.
Maybe the TSA agent was new to NorCal. Maybe he didn’t realize that a couple grams of weed in CA isn’t a big deal. (Yes, I was at the airport, so it could have been a big deal. I didn’t know — I was operating under the misconception that it was cool to fly from SR to LA with my meds and my doctor’s rec). When the local cop showed up, I volunteered my doctor’s recommendation. The cop looked at the jar of weed, and then he said something like this, “Bringing weed to the airport is illegal. This is federal property. But it’s just a couple of nugs and you have your paperwork, so I’m not going to make a big deal out of this.” He took my weed and off I went, minus a couple grams of OG.
Oh yeah, and there was that time I got hassled for smoking a joint in Redwood Park by Ranger someone or other. (I can’t remember his name. Nice guy.) I volunteered my doctor’s recommendation in that encounter too. Yes, the Ranger let me go, but not without a lecture on how all that the moms at the park know is that I’m using drugs, and to them, I may as well be using meth. I did not agree with the points of his lecture, but I did not argue with him. And off I went, minus a joint.
I’ll close with one more quick thing, and that’s the recent change to the state Health and Safety Code, relating to transporting controlled substances as per AB 721. (Text of the bill here.)
I heard about this change on KMUD News back in January, when local attorney Eugene Denson was featured in a series of segments, talking about new laws that we-the-people should be aware of. (There was also a spot of coverage on AB 721 in the LA Times here.)
I asked Denson via email to help me understand the changes to the Health and Safety Code in terms of marijuana. Here’s what he told me:
“Drugs fall under the Health and Safety Code. Four sections prohibit transport of one group of controlled substances or another and make it a felony. (HS 11352, 11360 (Marijuana), 11379 and 11379.5 (Phencyclidine — i.e., PCP)). Two of those sections were altered by AB 721 to include ‘For purposes of this section “transports” means transports for sale.’ They were 11352 and 11379.”
In other words, if the controlled substances that someone is transporting don’t appear to be intended for sale (meaning they appear to be for personal use), then trafficking charges will not be brought against that person, although, the person can still be charged with possession. Denson clarified that this change to the code does not cover marijuana.
Transporting less than an ounce of marijuana is a misdemeanor. More than an ounce, that’s another story. Read state Health and Safety Code for marijuana here.
Tricky to keep up with all of this stuff, eh?