November 21, 2013
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Photo Credit: Shutterstock.com/bikeriderlondon
If you use pot you are a criminal.
This
is true [according to federal authorities] even in Colorado and
Washington, where the feds continue to outlaw cannabis. This is also
true in California and other states that provide medical protection.
This means the police not only have the right, but the obligation to try
and stop you (though state police cannot legally enforce federal law).
Fortunately, you do not have to help them. The United States
Constitution gives you rights that protect you during police encounters.
It is the job of the police to find evidence of a crime. It is not your
job to confess or help them. They get paid quite well, so please do not
do their job for them. Your job is to do and say the right things to
protect yourself and defend your rights.
During a police
encounter, the best case scenario is you will be let go with a warning
or simple citation. The worst case is, you or someone you love will get
hurt. No one should be the victim of police brutality, but it happens.
Cops are jumpy. They are trained to be suspicious. Do not make any
sudden moves they can claim were threatening. Be polite and respectful,
even if the courtesy is not returned. Remember, the police do not have
the final word and while they may be able to harass, intimidate, and
arrest you, the real fight is in the courtroom before the judge and
jury. But you must actually survive the police encounter first before
you can win the battle in court.To win that court battle, your lawyer needs to be able to prove the police acted illegally and the evidence should therefore be thrown out. The goal is to get all the evidence tossed so that there is no case left against you. If you give police permission, your lawyer will not be able to argue they acted illegally and there will not be much s/he can do to defend you. This is why what you do and say are very important. Your lawyer needs you to say the “magic words.” These are words that limit what the police can do and will help your lawyer prove the police acted illegally.
The Magic Words
What are the magic words, you ask? The first magic words can set you free. Simply ask,
“AM I FREE TO GO?”
If they reply that you are free to go, then you are free to go. You may have to wait for the officer to finish the citation, but yes, you are free to go. If you are not free to go, then you must use the other magic words,
“I DO NOT CONSENT TO ANY SEARCHES,”
“I WANT TO REMAIN SILENT,”
“I WANT A LAWYER.”
You
must use all of the magic words and use them in this order. You must
memorize and practice the magic words. During a stop, the police will
not always tell you your rights or help you understand them. In fact,
they are trained to harass, scare, and trick you into giving up your
rights. You have to be strong while they get in your face and insult
you. They are even allowed to lie. Do not believe them. Say the magic
words, follow police orders, and shut up!How Do the Magic Words Work?
The
first question, “Am I free to go,” clarifies if you are being detained
or not. If you are being detained, the police cannot ask you questions
without reading you your rights, just like on the TV cop shows. If they
do not read you your rights, your lawyer can use this against them in
court.
The second statement, “I do not consent to any
searches,” is critical. The cops are not allowed to just search you for
any reason. They have to meet certain requirements like having probable
cause or a warrant. Even if they have a warrant, they can only search
within certain limits. For example, if the warrant is for plants, they
cannot necessarily search drawers. But if you give consent, you are
giving permission to search everywhere. Never consent to any
searches! It will never help you or get the cops to go easy on you. If
they need consent then they have nothing else against you so don’t give
it to them. If the police think they do not need consent, they will go
ahead and search after you say the magic words. Stand out of the way and
be quiet while they search. Maybe they find something maybe they don’t.
“I
want to remain silent,” is one of the trickier magic words. The Supreme
Court has declared that in order to use your right to remain silent,
you must first speak up and say you want to remain silent. After you say
it, the police are still allowed to continue to question and harass
you. You must not speak up and if you do, you have to say “I want to
remain silent,” all over again. For some reason, the Supreme Court
thinks this is all very easy to do during a police encounter.
Don’t
worry. The last set of magic words are here to help. 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. If they do talk to you and you
accidentally talk back, your lawyer will be able to throw it out in
court even if you forget to say “I want to remain silent,” after you
talk. Asking for a lawyer is the ultimate legal block against the
police.You do not need to ask for a specific lawyer or worry about
paying if you cannot afford it. If you are arrested, remain silent and
wait to get bailed out. At your first court date you can ask for a free
lawyer.
If a person says the magic words, but only cops can hear them, did they really say anything at all?
Yes!
There are ways to prove you said the magic words even if there are no
witnesses other than the police. It is becoming common for police to
record encounters. Also more and more drivers are using dash cams.
Bystanders and onlookers are also allowed to video record police
encounters. Your lawyer can find these recordings and use them to help
you. Most importantly, make it known as part of your public reputation
that you would always use the magic words with police. Constantly tell
your friends and family about the magic words and how they should use
them too. Carry stickers, cards, and other items with the magic words.
Wear t-shirts with the magic words. Make the magic words a part of your
life.
What About Patients?
Police
encounters can be especially confusing for medical marijuana patients.
Why did you go through all that trouble to get the right paperwork if
you have to remain silent and get arrested? Well, you don’t. If the
police stop you, you do not have to tell them you are a patient, if you
grow, or where you get your medicine. You do not have to tell them
anything! Say the magic words and let the cops do their job. If and when
they find your pot, they should also find your patient paperwork
whether it is a doctor’s letter or state card. Tape the letter to the
jar or put your patient card in the baggie. You do not want to have to
talk and explain your patient status to police or ask to get your
paperwork from your wallet. Let the police figure it out.
If the
police ask you about your paperwork, you have to decide if you are going
to talk to them. If they are trying to clarify and approve your
paperwork, then maybe you want to answer their questions. If they
disrespect your paperwork and ask you questions that don’t sound like
they care about the law, maybe you don’t want to talk. You have to
decide if talking will help or hurt you and it may not be so easy to
tell. Once the police find your pot and know you are a patient, let them
do what they are going to do, answer their questions if you think it
will help, and then be silent. If you get a citation or are arrested,
again your battle is in court and with proper documentation you should
win.A Final Caveat
The police cannot stop you for just any reason. They have to have evidence that a crime is being committed. That being said, the police stop people without any legal justification all the time. They stop people simply because of the way they look. This is called profiling. Racial profiling is rampant and young men of color know they can do everything right under the law and still get stopped. If you are profiled, it is a degrading experience, but it is one you can overcome by knowing your rights, using the magic words, and staying strong and silent. Once you are safe at home you can report the profiling to your local police watchdog organization or take official action against the police.
Remember, the goal of police encounters is to survive and stay alive!
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