Knowing Your Rights

Even today, medical marijuana patients and their providers are vulnerable to arrest, and prosecution. Also, we suffer discrimination in employment, child custody, housing, 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. And there is no federal law allowing medical marijuana.

You should know your rights in order to have a successful encounter with law enforcement. The best law enforcement encounter is one that never happens.

A. Know the Laws

See https://www.safeaccessnow.org/state_and_federal_law for up-to-date information on marijuana laws in your state.

B. Avoid Law Enforcement Encounters

While your state may have medical marijuana laws, law enforcement officers often seize medicine, harass patients, and even arrest patients. 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; marijuana smoke and vapor have very distinctive smells. You will attract less attention if you do not consume marijuana in plain view or near open windows.

Do not drive your car while medicating. If law enforcement officers smell marijuana, they have probable cause to search your vehicle. If you are going somewhere, medicate after you arrive. Please note that no medical marijuana laws protect you from charges of driving under the influence of marijuana, and marijuana 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. Marijuana 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 cops alike, so be realistic about the amount of marijuana you will need.

Try to limit the amount of marijuana 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 marijuana use and report concerns about nuisance and safety to landlords or police.

Neighbors may not share your opinion about medical marijuana, but will be much more likely to respect your rights if you are not causing them problems. You can make and keep good relationships by being conscious of neighbors' rights, privacy, and property.

Police are required to investigate reports of domestic disputes, loud music, illegal parking, barking dogs, etc. If your neighbors make complaints, cops will come to your location, and could find a reason to seach. Being a good neighbor can help you avoid these types of encounters.

3. Use Medical Marijuana Sensibly

Guidelines for Sensible Medical Marijuana Use:

  • Always listen to the advice of your doctor and use good judgment when using medical marijuana.
  • Learn the amount of marijuana that is right for you. Start with a small amount and slowly increase your dosage to find the proper level for relief.
  • Be informed about the side effects of marijuana. It is also important to be aware of the possible risks of using medical marijuana.
  • Do not drive, operate machinery, or do anything dangerous under the influence of medical marijuana.
  • If you live in a state without a law allowing adult use of marijuana, carry a copy of your doctor's recommendation, caregiver's agreement, and/or ID card when in possession of medical marijuana.

4. Travel Safely

Be discrete. Many arrests for marijuana possession start with traffic stops. If you travel with marijuana, make sure your vehicle is up to code and your marijuana is concealed—preferably in your trunk. Take care medicating in public - some delivery methods, like tinctures, edibles, etc are much more subtle than smoking or vaping.

Take care when flying. While marijuana possession isn't a priority of the TSA they could still turn you over to local law enforcement. Also, remember that airports and planes are under federal jurisdiction, where there is NO medical defense to possession, or transportation, and no adult use allowed. Federal fines are steep, and these types of charges could also lead to jail time.

Also, keep in mind that most medical marijuana states do NOT recognize patient status for travelers. Being a qualified medical marijuana patient in your home state, does NOT always make you a qualified patient elsewhere.

C. Prepare for Successful Law Enforcement Encounters

Fortunately, most patients and caregivers never have law enforcement problems. In case you do, be prepared so you can come out on top.

Maintain 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. 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.

Tell family, friends, roommates, etc. about your medical use of marijuana. They should be prepared to assist if you are harassed or arrested. They should also learn about their own legal rights, in case they are questioned if you get arrested.

Have an emergency in case you are arrested, including how to get out of jail (bail, bond, or being released on your own recognizance), protecting your personal belongings and financial data, planning emergency child care or pet care

1. Garden Safely

Have Your Paperwork Together

Post a copy of any required paperwork (doctor's recommendation, caregiver agreement, etc) at any place where you grow marijuana. Keep a copy of all of your paperwork off-site as well, in case your paperwork may be destroyed or seized.

Be discreet

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 cops. 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 bothering neighbors.

Be mindful about hauling grow equipment, tools, and plants into your home or grow site in view of neighbors. Tell as few people as possible about the location of the site.

2. Create Security Culture in Your Community

"Security Culture" refers to developing good habits within the medical marijuana community to avoid attention from police and not allow them to play you off against each other. If everyone involved maintains these habits, 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 marijuana 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 marijuana 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 marijuana, 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 talk about this in court, or 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 them 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 talks is a grave risk at best, and an informant looking to incriminate others at worst.

Keep an Eye Out for Surveillance

Take precautions. A good way to have good habits is to assume you are under surveillance if you are in any way involved in cultivating medical marijuana 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 provider 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. Never touch law enforcement officers or their equipment—you can get injured and/or charged with assault and battery.

Law enforcement officers do 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.

Conversation

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 cops. If an officer asks you questions or tries 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.

Detention

Law enforcement officers can 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.

Arrest

Law enforcement officers can 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."

Probable cause requires more proof than 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."

Searches

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."

Questioning

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 marijuana 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 officers is to get information out of people. They are 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. For example, "Good Cop, Bad Cop", where "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