Knowing Your Rights
Medical cannabis patients and their providers are vulnerable to federal and state raids, arrest, prosecution, and incarceration. As a result, these individuals may suffer pervasive discrimination in employment, child custody, housing, public accommodation, education and medical care. Laws protecting patients and their providers vary from state to state and, in some cases, may vary from county to county. Many individuals choose to break outdated state laws that do not account for medical use or their access. And no matter what state you are living in, medical cannabis patients and their providers are always violating federal law.
Making the choice to participate in a medical cannabis program or to resist current laws should be done with thoughtful consideration. Following the law in your local area may not always protect you from law enforcement encounters, and the more you know about your rights, the more likely you will be to have a successful encounter with law enforcement. It's important to also remember that the best law enforcement encounter is the one that never happens.
The information found in this section is meant to educate patients and their providers about the existing federal laws, how to avoid law enforcement encounters, how to be prepared for encounters, how to understand your rights during encounters, and how to navigate the legal system after an encounter. After you understand this material, be sure to share this information with your family, friends, or anyone who may be at risk.
A. Know the Laws
Medical cannabis laws vary from state to state. The section on state laws summarizes some of the key information, with links to more details. If you live in a medical cannabis state, consult AmericansForSafeaccess.org/LocalResources to find out about your state's medical cannabis program. Finally, consult local laws and regulations to make sure that you are adhering to any guidelines developed by your county or city. Following each law to the letter may not prevent you from having a law enforcement encounter, but it will help you have a successful one.
Despite the promises made by the Obama campaign and the memo issued in 2009 by the Department of Justice, medical cannabis remains illegal at the federal level and carries severe penalties. Federal interference with state medical cannabis programs can happen in every state, and there is no "medical" defense within the federal justice system. If you're participating in your state's medical cannabis program, you are in direct violation of federal law. It is important to remember that even though the media has hyped the meager promises made by different parts of the federal government, patients have no federal protection and are still at risk. Until federal law changes, patients across the country face dire choices between violating the laws of their country and treating their illness with the medication deemed most appropriate by their physician.
The federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811), which places every controlled substance in a schedule, according to its relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as being highly addictive and having no medical value. Doctors may not "prescribe" cannabis for medical use, though they can "recommend" or "approve" its use under the First Amendment. This recommendation or approval does not provide patients with any sort of legal protection under federal law, but it may be the basis for legal protection under state law. Under federal law, you and your doctor are free to discuss the possible benefits and side effects of medical cannabis.
The Drug Enforcement Administration (DEA), charged with enforcing federal drug laws, has taken a substantial interest in individual medical cannabis patients and caregivers, particularly those involved in large cultivation and distribution operations. Over the past decade, hundreds of people have been the targets of federal enforcement actions. Many of them have been arrested and had property seized. More than a hundred medical cannabis providers are currently in prison or are facing charges.
Federal cannabis laws are very serious, and punishment for people found guilty is frequently severe. Federal judges have ruled that medical necessity cannot be used as a defense. In fact, medical cannabis cannot even be mentioned during a federal trial. Patients may not use evidence related to their state's medical cannabis program, their doctor's recommendation, their illness, or anything else related to medical cannabis.
Federal sentencing guidelines take into account not only the amount of cannabis but also past convictions. Not all cannabis convictions require jail time under federal sentencing guidelines, but some do and all are eligible for imprisonment. If convicted and sentenced to jail, a minimum of 85% of that sentence must be served. The greater the quantity of cannabis involved, the more likely one is to be sentenced to jail time, as opposed to probation or alternative sentencing.
In addition to the sentencing guidelines, there are statutory mandatory minimum sentences, which primarily target offenses involving large quantities of cannabis. There is a five-year mandatory minimum for cultivation of 100 plants or possession of 100kgs, and there is a ten-year mandatory minimum for these offenses if the defendant has a prior felony drug conviction. Cultivation of 1,000 plants or possession of 1,000kg triggers a ten-year mandatory minimum, with a twenty-year mandatory sentence if the defendant has one prior felony drug conviction, and a life sentence with two prior felony drug convictions.
The 2005 US Supreme Court decision in US v. Booker altered the mandatory minimums to make them effectively advisory, requiring a sentencing court to consider Guidelines ranges. Nonetheless, to avoid a five-year federal sentence, it is advisable to cultivate well below 100 plants, including any rooted cuttings or clones.
Low-level federal offenders, even with multiple prior convictions, may end up with probation for the entire sentence of one to twelve months and no jail time required. Possession of over one kg (2.2 lbs.) of cannabis with no prior convictions carries a sentence of six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record carries a sentence of at least six months in jail; with multiple prior convictions, a sentence might be up to two years to three years in prison with no chance for probation.
Keep in mind that even though medical cannabis protections may exist in your state, the federal government allows no medical defense to possession, cultivation, or distribution charges. Even though the Obama administration and the Department of Justice have made statements that prosecuting patients is a low priority, patients and providers are still being harassed, raided, arrested, and convicted throughout the U.S. Until federal law changes, participating in your state's medical cannabis program still carries some risk.
Other Applicable Laws
Patients and providers should avoid possession and cultivation of cannabis in school zones—a 1,000-foot radius around any school, including any daycare facility—as there are typically additional penalties for the possession, use, and cultivation of cannabis near schools, whether it is for medical or recreational use. Some state medical cannabis laws have limitations on "sensitive use" areas, limiting cultivation, use, and possession of medical cannabis within a specific amount of space of a school, playground, etc. Most use the federal 1,000-foot radius but some mandate up to 1,500 feet. In addition, keep in mind that Drug Free School Zone laws can double the maximum sentences in federal court, where the mention of "medical cannabis" is prohibited.
Firearms can result in harsher federal sentencing and may draw attention to patients. Even if your state protects patients' right to safe access to medical cannabis, the presence of firearms may increase the chances of an adverse state or federal law enforcement encounter, and harsher sentences if convicted. Again, the best law enforcement encounter is the one that never happens.
Under federal law, "any person who, during any drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall:
- Be sentenced to a term of imprisonment of not less than 5 years;
- If the firearm is brandished, not less than 7 years; and
- If the firearm is discharged, not less than 10 years."
Although the U.S. Constitution confers a right to carry firearms, we have seen many patients face extreme legal consequences for having firearms in addition to plants.
In addition, the memo issued by the Department of Justice in 2009, which was intended to provide the U.S. Attorneys' Offices with guidance on the prosecution of medical cannabis patients and providers, specifically mentions the presence of firearms as an example of "potential federal interest" that probably falls outside of "clear and unambiguous compliance" with underlying state law. In other words, beyond the sentencing enhancements, the presence of firearms makes patients and providers a more likely target for federal prosecution.
ASA strongly advises that, if you are a medical cannabis patient, do not carry firearms or keep them on your property or allow others to do so.
Civil Asset Forfeiture
Federal law provides for the forfeiture of property and profits obtained through or used in the commission of felony drug offenses. Prosecutors have incentives to include forfeiture offences in all drug indictments. Forfeiture can apply to landlords who rent to people considered in violation of federal law, and therefore can also be used to intimidate the landlords of patients who cultivate or use their medicine on the premises. It should be noted, however, that landlords do have defenses available to them in these types of civil actions, and that they are rarely targets of forfeiture if they themselves were not participating in the use, possession, or cultivation of medical cannabis.
B. Best Law Enforcement Encounter is the Encounter that Never Occurs
While your state may have extensive laws that protect your right to use medical cannabis, many law enforcement officers still believe that medical cannabis is a "sham" and that all use of cannabis is recreational use. Law enforcement officers often seize medicine, harass patients, issue citations, and even arrest patients for exercising their rights. Carry your doctor's written recommendation and/or state-issued ID Card (following your state's requirement) at all times, but do not present it to law enforcement unless accused of a cannabis-related crime. Dealing with criminal charges and/or getting your medicine back can be stressful and costly, and may cause you to be "outed" as a medical cannabis patient. That's why we say that the best law enforcement encounter is the one that never occurs. If you follow these tips, you will be that much less likely to be harassed by law enforcement.
1. Use Common Sense
Consider safety when and where you choose to medicate; cannabis smoke and vapor have very distinctive smells. You will attract less attention if you do not consume cannabis in plain view or near open windows.
Do not drive your car while medicating. If law enforcement officers smell cannabis, they have probable cause to search your vehicle. If you are going somewhere, medicate after you arrive. Please note that no medical cannabis laws protect you from charges of driving under the influence of cannabis, and cannabis can impair motor skills. Every state has the ability to prosecute patients for driving under the influence if they are impaired while driving.
Although it may help with dosages and rationing, packaging your medicine in multiple bags looks suspicious. Cannabis stores best in glass jars or airtight plastic containers in cool dark places, so carry only what you need.
Fewer plants attract less attention from thieves and others who may wish you harm, so be realistic about the amount of cannabis you will need.
Try to limit the amount of cannabis you have with you at any given time. While you may seal your medication in airtight containers, there is still a distinctive odor that is hard to prevent and can lead to law enforcement encounters. The less medicine you have with you, the less smell there is.
2. Be a Good Neighbor
A common cause of trouble for both patients and caregivers is complaints from neighbors. This problem might begin with an unpleasant personal confrontation, or the neighbors may notice your cannabis use and report concerns about nuisance and safety to landlords or police. Subsequent investigations can lead to the arrest of patients and caregivers and to the closure of medical cannabis dispensing centers.
Neighbors and nearby businesses may or may not share your opinion about medical cannabis, but they will be much more likely to respect your right to safe access if you are not causing them problems. By being conscious of neighbors' rights, privacy, and property, patients and dispensing centers can establish and maintain harmonious relationships.
Other issues with your neighbors can lead to law enforcement encounters. Domestic disputes, loud music, illegal parking, barking dogs, and other nuisances should be kept to a minimum. Police are required to investigate these reports, and they will come to your location, giving them an opportunity to find grounds for a search. When neighbors complain to law enforcement, citations or criminal charges for nuisance violations can be difficult to deal with, and investigation into these types of charges may lead to charges related to your medical cannabis use. Being a good neighbor can help you avoid these types of encounters.
3. Sensible Medical Cannabis Use
Patients and caregivers should educate themselves about medical cannabis and understand the benefits and potential side effects of their medicine. If you are new to using medical cannabis, or are trying a new strain, strength, or route of administration, it might be best to do so when you have no other responsibilities or plans. New routes of administration in particular may cause somnolence, or tiredness. By being a sensible medical cannabis user and making informed decisions, you can not only be as healthy as possible and help change the way people think about medical cannabis use, but also limit your chances of a law enforcement encounter.
Guidelines for Sensible Medical Cannabis Use:
- Always listen to the advice of your doctor and use good judgment when using medical cannabis.
- Carefully determine the amount of cannabis that is right for you. Start with a small amount and slowly increase your dosage to find the proper level for symptomatic relief.
- Be informed about the side effects of cannabis. It is also important to be aware of the possible risks of using medical cannabis.
- Think carefully and in detail about the benefits of cannabis and relief that its use provides you. Being able to explain your use of medical cannabis can help you be an effective advocate, and you can be an example that helps your friends, family, and community forum their own opinions of medical cannabis.
- Avoid medical cannabis use that puts you or others at risk, such as using it while driving, at work, or in public places. Remember, you can still be arrested for cannabis use and penalties can be stiff. As with any other medication, it remains illegal to drive while under the influence.
- Always carry a copy of your physician's recommendation, caregiver's agreement, and/or ID card when in possession of medical cannabis.
Many arrests for cannabis possession arise from traffic stops. Do not medicate and drive. If you travel with cannabis, make sure your vehicle is up to code and your cannabis is concealed—preferably in your trunk.
Recently, news outlets have reported that some TSA and airport officials have relaxed their policy regarding flying with medical cannabis; please note that these officials may still turn patients over to local law enforcement. It's also important to remember that airports and planes are under federal jurisdiction, so you are much more likely to interact with federal law enforcement when flying, and there is NO medical defense to possession, transportation, or trafficking charges at the federal level. Federal fines are steep, and these types of charges may also lead to jail time. In addition, some states' medical cannabis protections do not extend to people who intend to leave the state with their medicine, so even if you are arrested in the state where you are a qualified patient, you may still face state criminal charges and conviction. It's best NOT to fly with medicine, EVEN if your flight never leaves your home state.
Also, keep in mind that most medical cannabis states do NOT recognize patient status for travelers (except Arizona, Maine, Michigan, Montana, and Rhode Island). Being a qualified medical cannabis patient in your home state, does NOT always make you a qualified patient elsewhere.
C. Being Prepared in Advance for Successful Law Enforcement Encounters
Fortunately, many patients and caregivers never have law enforcement problems. Even those who do regularly report successful interactions with local and county police; many municipalities offer strong protection to medical cannabis patients. Yet even in friendly jurisdictions, qualified patients are still being harassed and arrested for medical cannabis, despite proof of their patient status.
Any patient or caregiver can become the target of a law enforcement action. Each person who decides to use medical cannabis or help a patient to do so should be prepared to successfully maneuver through these encounters. You might not be able to avoid arrest in each instance, but chances of successfully fighting charges are greatly improved by education and careful planning.
There are many measures you can take before legal problems occur. You should carefully study the Law Enforcement Encounters section of this manual and, if possible, attend an ASA "Know Your Rights" training to most effectively learn this detailed information.
The first step is to stay on top of the basics. This includes maintaining a current doctor's recommendation and having a clearly defined patient/caregiver relationship. Keep a copy of your recommendation or ID Card or both (depending on the state) in your wallet or purse at all times. You may want to memorize your physician's and lawyer's phone numbers, or write them down to keep with your doctor's recommendation or identification.
It is very important to inform the people in your life, such as family, friends, and roommates, about your medical use of cannabis. They should be prepared to assist if you are harassed or arrested. They should also be educated about their own legal rights (see the "Know Your Rights" information), as they may be questioned in an investigation about your cannabis use. Also, be aware of how to get out of jail if you are arrested. You may want to make a plan for bail, bond, or being released from jail on your own recognizance. You may want to protect and organize your personal belongings and financial data, as well as make a plan for emergency child, pet, and plant care. Lastly, always stay alert for signs of surveillance and be aware of potential conflicts with the neighbors to avert problems early.
1. Safe Gardening
Have Your Paperwork Together
Post a copy of patient medical cannabis recommendation(s) and/or caregiver paperwork and/or other required paperwork prominently at any place where cannabis is cultivated. Keep a copy of all of your paperwork at an off-site location; if a raid occurs, your paperwork may be destroyed or seized.
In the Garden
Don't be sloppy. Compost or eliminate trash off site. The larger the garden appears, the more likely you are to attract the attention of thieves or others who wish to cause you harm. Cultivating indoors is generally considered safer because it helps avoid nosy neighbors and reduces the risk of theft. Use extra odor control methods during harvest to avoid offending neighbors. The plants smell especially pungent during harvest, as they are particularly resinous, and you may find the smell lingering in the air, on your clothes, and in your hair.
Be Smart: Be discreet
Be mindful about hauling grow equipment, tools, and plants into your home or grow site in view of neighbors. In the same vein, as tempting as it may be to talk about, tell as few people as possible about the location of the site.
2. Create Security Culture in Your Community
"Security Culture" refers to the importance of developing unbreakable unity within the medical cannabis community. If everyone involved maintains this unity, the entire community will be safer. Law enforcement agents rely on turning people against each other and disorganize or disband the community.
Implement a Security Culture
Take care of yourself and your community. Don't gossip, brag or ask for compromising or unnecessary information about medical cannabis operations and activities. Although such behavior may be entertaining, it puts you at greater risk of arrest and law enforcement officers may use personal splits to divide the community. When you are about to discuss your personal involvement in any medical cannabis activity, consider the following:
Would this person repeat what you are about to tell them to anyone else? When you share information about your use or cultivation of medical cannabis, you are providing evidence that may be used against you in court if this person is ever interrogated as a witness. You should also be cautious of theft. Patients and providers have been robbed, so it's best to limit the dissemination of sensitive information.
Would you want this person to have to perjure him or herself? Think carefully: you may be giving people information that may cause harm to you or to them.
If someone you know is giving out sensitive information, talk to him or her in private about why such talk can be hazardous. Someone who repeatedly engages in gossip, bragging or seeking unnecessary information about inappropriate topics after repeated educational talks is a grave risk at best, and an informant looking to incriminate others at worst.
Keeping an Eye Out for Surveillance
Take precautions. Assume you are under surveillance if you are in any way involved in cultivating medical cannabis for yourself or other patients. Do not discuss sensitive matters on the telephone, through the mail, by email, or in your home, car, dispensing collective, or office. Be cautious with whom you discuss sensitive information. Keep written materials and lists of other patients in a secure place. If you are arrested, law enforcement officers may investigate all of your contacts. Law enforcement officers have the right not only to go through your address book, but can also answer any calls made to your phone. Keep in mind that electronic data such as emails and text messages still exist even after they've been deleted, and your phone company or service privder may turn them over to law enforcement.
Excerpted from "Security Culture," Slingshot Issue #72, http://slingshot.tao.ca/ with modifications by ASA.
D. Successful Law Enforcement Encounters
When dealing with law enforcement officers, keep your hands in view and don't make sudden movements. Avoid passing behind them. Nervous officers are dangerous officers. Also, never touch law enforcement officers or their equipment—you can get injured and/or charged with assault and battery.
Law enforcement officersdo not decide your charges; they can only make recommendations. The prosecutor is the only person who can actually charge you. Remember that law enforcement officers have no power to negotiate or charge; promises of leniency or threats of harsher penalties are all lies and are designed to get you to start talking.
1. Types of Law Enforcement Encounters
When law enforcement officers are trying to get information, but don't have enough evidence to detain or arrest you, they'll try to coerce information from you. They may call this a "casual encounter" or a "friendly conversation." If you talk to them, you may give them the information they need to arrest you or your friends. In most situations, it is not advisable to volunteer information to law enforcement officers. During a law enforcement encounter that involves an officer asking you questions or trying to engage you in conversation, ask "Am I being detained or Arrested?" If you are not being detained or arrested, walk away. If you are being detained or arrested, let the officer know that you do not consent to a search and that you wish to remain silent and want a lawyer.
Law enforcement officerscan detain you only if they have reasonable suspicion (see below) that you are involved in a crime. Detention means that, though you aren't arrested, you can't leave. Detention is supposed to last a short time, and they are not supposed to move you. During detention, law enforcement officers can pat you down and go into your bag to make sure you don't have any weapons. They aren't supposed to go into your pockets unless they feel a weapon.
If law enforcement officers are asking you questions, ask if you are being detained. If not, leave and say nothing else to them. If you are being detained, you should ask why, and remember their answer. Then you should say the Magic Words: "I am going to remain silent. I want a lawyer" and nothing else. Remain silent. Anything you say to law enforcement may be used against you, and sometimes it's hard to recognize that the information you are volunteering might harm you. It is always better to say nothing at all. If they ask to search your person or belongings, say, "I do not consent to a search." They may say, "Empty your pockets." You are within your rights to refuse. If you do empty your pockets, it is considered consent and anything they find in your pockets may be used against you.
A detention can easily turn into arrest. If law enforcement officers are detaining you and they get information that you are involved in a crime, they will arrest you, even if it has nothing to do with your detention.
For example, if someone is pulled over for speeding (detained) and the officer sees drugs in the car, the officer may arrest her for possession of the drugs, even though it has nothing to do with her being pulled over. Law enforcement officers have two reasons to detain you: 1) they are writing you a citation (a traffic ticket, for example), or 2) they want to arrest you but they don't yet have enough information to do so.
Law enforcement officerscan arrest you only if they have probable cause (see below) that you are involved in a crime. When you are arrested, the officers can search you to the skin and go through your car and any belongings. By law, an officer strip-searching you must be the same gender as you. If arrested, you should still say, "I do not consent to a search" to preserve your rights. After that, say, "I choose to remain silent and I want a lawyer." After that, remain silent. Law enforcement will try to get you to give them information about the crime(s) they are holding you for. Keep in mind that denying things that they say is NOT remaining silent.
Reasonable Suspicion vs. Probable Cause
Reasonable suspicion must be based on more than a hunch—law enforcement officers must be able to put their suspicion into words. For example, an officer can't just stop someone and say, "She looked like she was up to something." They need to be more specific, such as, "She was standing under the overpass staring up at graffiti that wasn't there two hours earlier. She had the same graffiti pattern written on her backpack. I suspected that she had put up the graffiti."
Law enforcement officers need more proof to say they have probable cause than to say they have a reasonable suspicion. For example, "A store owner called to report someone matching her description tagging a wall across the street. As I drove up to the store, I saw her running away spattered with paint and carrying a spray can in her hand."
Never consent to a search. If police try to search your house, car, backpack, pockets, etc. say the Magic Words: "I do not consent to this search." This may not stop them from forcing their way in and searching anyway, but if they search you illegally, they probably won't be able to use the evidence against you in court. You have nothing to lose from refusing to consent to a search and lots to gain. Do not physically resist officers when they are trying to search, because you could get hurt and/or charged with resisting arrest or assault and battery. Just keep repeating the Magic Words "I do not consent to a search" so that the officers and all witnesses know that this is your stance.
Be careful about casual consent. That is, if the officers stop you and you get out of the car but don't close the door, they might search the car and claim that they thought you were indicating consent by leaving the door ajar. Also, if you say, "I'd rather you didn't search," they can claim that you were reluctantly giving them permission to search. Always just say the Magic Words: "I do not consent to this search."
Interrogation isn't always bright lights and rubber hoses—usually it's just a conversation. Whenever law enforcement officers ask you anything besides your name and address, it's legally safest to say these Magic Words:
"I am going to remain silent. I want to see a lawyer." This invokes legal rights, which protect you from interrogation. When you say this, all law enforcement officials are legally required to stop asking you questions. They probably won't stop, so just repeat the Magic Words or remain silent until they catch on. If you forget your decision to remain silent and start talking to the officers, you can and should re-invoke the Magic Words, then remain silent. Do not raise your status as a medical cannabis patient, unless you are specifically asked about this or the medicine has already been found.
Remember, anything you say to the authorities can and will be used against you and your friends in court. There's no way to predict what information law enforcement officers might try to use or how they will use it. Plus, law enforcement officers often misquote or lie altogether about what was said. So say only the Magic Words and let all the cops and witnesses know that this is your policy. Make sure that when you're arrested with other people, the rest of the group knows the Magic Words and promises to use them.
One of the jobs of law enforcement officersis to get information out of people. Law enforcement officersare legally allowed to lie when they're investigating, and they are trained to be manipulative. The only thing you should say to law enforcement officers, other than identifying yourself, are the Magic Words: "I am going to remain silent. I want to see a lawyer."
Here are some lies they may tell you:
"You're not a suspect—just help us understand what happened here and then you can go."
"If you don't answer my questions, I'll have no choice but to arrest you. Do you want to go to jail?"
"If you don't answer my questions, I'm going to charge you with resisting arrest."
"All of your friends have cooperated, and we let them go home. You're the only one left."
Law enforcement officers can be sneaky, and there are lots of ways they can trick you into talking. Here are some scams they may pull:
"Good Cop, Bad Cop": "Bad cop" is aggressive and menacing, while "good cop" is nice, friendly, and familiar (frequently the "good cop" will be the one who is the same race and gender as you