Law Enforcement Encounters: Know Your Rights
Medical cannabis patients and their providers are vulnerable to federal and state raids, arrest, prosecution, and incarceration and 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 Many individuals choose to break outdated state laws that do not account for medical use or access.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 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.
People deal with police in all kinds of circumstances. You must make an individual decision about how you will interact with law enforcement. It is important to know your legal rights, but it is also important for you to decide when and how to use them in order to best protect yourself.
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 hurt, charged with assault, or both.
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 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.
When the 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. Ask if you are free to leave, and if you are, 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.
Police 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 why they stopped you.
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.
Police 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. 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 must be based on more than a hunch—law enforcement officers must be able to put their suspicion into words. For example, law enforcement officers 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 law enforcement 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 so that the officers and all witnesses know that this is your stance.
Be careful about casual consent. That is, if law enforcement 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: "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, the officers (and all other 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 law enforcement 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 law enforcement officers and witnesses know that this is your policy. Make sure that when you're arrested with other people, everyone knows the Magic Words and promises to use them.
One of the jobs of law enforcement officers is to get information out of people. Law enforcement officers 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 are 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 (usually good cop is the same race and gender as you). The idea is bad cop scares you so badly you are desperately looking for a friend. Good cop is that friend. The Bad Cop usually questions you first, pretends to give up or take a break with you, and then the Good Cop enters to sympathize with you about how much of a jerk the other guy was. It is in this "friendly" conversation that the Good Cop will be looking for any information or a confession.
Prisoners' Dilemma: The officers will tell you that your friends ratted on you so that you will snitch on them. Meanwhile, they tell your friends the same thing. If anyone breaks down and talks, you all go down.
Law enforcement officers will tell you that they have all the evidence they need to convict you, but that if you "take responsibility" and confess, the judge will be impressed by your honesty and go easy on you. What they really mean is: "We don't have enough evidence yet, please confess."
Jail is a very isolating and intimidating place. It is really easy to believe what law enforcement officers tell you. Insist on speaking with a lawyer before you answer any questions or sign anything.
Law enforcement officers do not have to read you your rights (also known as the Miranda warnings). Miranda applies when there is (a) an interrogation (b) by a police officer or other agent of law enforcement (c) while the suspect is in police custody (you do not have to be formally arrested to be "in custody"). Even when all these conditions are met, officers may intentionally violate the Miranda requirement. And though your rights have been violated, what you say can still be used against you. For this reason, it is better not to wait for the law enforcement officers to inform you of your rights. You know what your rights are, so you can invoke them by saying the Magic Words, "I am going to remain silent. I want to see a lawyer."
If you've been arrested and realize that you have started answering questions, don't panic. Just re-invoke your rights by saying the Magic Words again. Don't let them trick you into thinking that because you answered some of their questions, you have to answer all of them.
If law enforcement officers come to your door with an arrest warrant, step outside and lock the door behind you. Law enforcement officers are allowed to search any room you go into, so don't go back into the house for any reason. If they have an arrest warrant, hiding won't help, because they are allowed to force their way in if they know you are there. It's usually better to just go with them without giving them an opportunity to search.
If law enforcement officers have a search warrant, nothing changes—it's legally safest to say the Magic Words. Again, you have nothing to lose from refusing to consent to a search and lots to gain if the search warrant is incorrect or invalid. If they do have a search warrant, ask to read it. A valid warrant must have a recent date, the correct address, and a judge's or magistrate's signature; some warrants also indicate the time of day the law enforcement officers can search. You should say the Magic Words whether or not the search warrant appears correct. The same goes for encounters with any other government official who tries to search you, your belongings, or your house.
Undercover officers sometimes infiltrate political organizations. They can lie about being law enforcement officers even if asked directly. Undercover officers may even break the law (undercover officers get hazard pay for doing drugs as part of their cover) and encourage others to do so as well. This is not legally entrapment.
FBI, DEA, and Other Government Agents
The essence of the Magic Words "I'm keeping my mouth shut until I talk to a lawyer" not only applies to police but also to the FBI, DEA, INS, CIA, even the IRS. If you want to be nice and polite, say that you don't wish to speak with them until you've spoken with your lawyer or that you won't answer questions without a lawyer present.. If you own or belong to a state licensed medical marijuana business, do not let federal agent search your licensed facility, and ask to speak to your lawyer.
You're entitled to make a phone call from jail, but that doesn't mean you're going to get one right away. Jail telephones are often rigged to only make collect calls, although some take coins as well. All telephone calls from people in custody can be monitored. You should not discuss anything that is secret or sensitive—circumstances of your arrest, people you are close to, any contact information for those people, etc.
Whenever you interact with or observe law enforcement officers, always write down what is said and who said it. Write down the law enforcement officers' names and badge numbers and the names and contact information of any witnesses. Record everything that happens. If you are expecting a lot of police contact, get in the habit of carrying a small tape recorder and a camera with you. Be careful—law enforcement officers don't like people taking notes, especially if they are planning to do something illegal. Observing them and documenting their actions may have very different results; for example, it may cause them to respond aggressively, or it may prevent them from abusing you or your friends.