Time to go down a legal rabbit hole to fuck Bernie, Trump, and the NRA. Recently I was criticizing Dana Loesch, as is my want, and brought up the NRA had never responded to or said anything about Philando Castille. Someone clued me into a tweet where Loesch basically said that possession of marijuana (which Castille had on him) and a gun is a felony. Putting aside the fact that this is not always the case and it has nothing to do with his legal right to possess a firearm and the fact that he was executed for no reason, it left me, for lack of a better word, triggered. Marijuana is used to persecute people, the poor and minorities in particular, but what drives me nuts about it is not people getting arrested and punished (rarely but too often prison) for possession. Let’s go down the rabit hole.
The 4th amendment, in its most basic form, basically says you can’t be searched, nor can people or evidence be seized, without a warrant. The most extreme and literal interpretation of this rule would mean no one could ever be searched or arrested, nor any property impounded under any circumstances unless a warrant was obtained first. Clearly this is absurd, as you wouldn’t expect to need a warrant to arrest anyone you see committing a crime, nor a separate warrant to search someone you are arresting regardless whether they pose a threat. So there are exceptions. So far pretty simple and makes sense.
So, basic exceptions. If you arrest someone you can search them. Arrests are inherently dangerous, I don’t think anyone is gonna argue with that. Also, if cop sees someone committing a crime they can arrest them. That seems very simple and fair right? If a cop sees a guy punch a woman in the face we expect the guy to get arrested. But, what about when the crime is just something existing? Like, a bomb for example. IEDs are illegal, so if you are just holding one you are committing a crime. If the police see that, or drugs, or something else that constitutes a crime, they can seize it, and arrest whom is connected to it if they have probable cause. This area of 4th amendment law is known as plain view.
Still with me so far? You see a crime you can do something about it, you see an illegal item you can seize it. Seems simple. Now the limitations on the plain view rule are that the officer has to be where he is viewing the item legally, and “incriminating characteristics” of whatever the item is must be “immediately apparent.” Fairly straightforward- if a police officer has a right to be standing in my living room and sees a ziploc bag of white powder next to a straw he can take it, but we don’t want him taking all my medication and holding me until the lab determines if any of it is illegal.
Let’s take another detour before we return to plain view. If police have a reasonable suspicion that a crime is occurring, they have the right to conduct whatever investigation is necessary in order to confirm or allay that suspicion. So if the cops come to my work and my boss says he saw me stealing things, the cops can detain me for a “reasonable period” until they have conducted an investigation to confirm or allay the accusation to the degree necessary to keep me there. Or to put it another way, if the police see me changing lanes without signaling, they are only allowed to detain me long enough to confirm or allay their suspicion, i.e. demand my license and write me a ticket. However, if they are looking for a particular person or car in the area and I fit the description they can pull me over and detain as long as necessary for them to figure out whether I am the person who they are looking for. Remember this idea of an investigation, we are gonna come back to it.
Let’s get back to plain view. If a cop sees marijuana he “knows” is marijuana, he can seize it. If he can connect it to someone, i.e. in their vehicle, they can be arrested and the marijuana used against them if it’s in plain view. I don’t like marijuana being illegal, but all that is fairly straightforward. But…But! Unlike other types of drugs, such as methamphetamine or heroin, marijuana isn’t just subject to plain view. Marijuana can be seized or investigated under plain smell. A long standing area of jurisprudence gives police the absolute right to act the same whether they see marijuana or if they smell it. Cop pulls you over and smells weed? He gets to turn you and the cab of the car inside out. Or call the dog, even if you have to wait 90 minutes. Cop is just driving down the street and smells weed? He can pull over and look around and see if he can identify the source. And if the cop is walking through a neighborhood smells weed from a group of young black men standing around? You see where this is going.
It doesn’t end there. As a public defender I have very few clients in prison for possession of marijuana. I have a lot in there where marijuana was used as the reason for investigation or search that led to more serious drugs or other felonies. Or an active warrant. But those are just the ones arrested and prosecuted. That doesn’t include the people where the police don’t find anything. Or where they decided marijuana was just a reason to search and they didn’t find anything. Police walking or driving through black neighborhoods with the right to detain anyone who smells like weed. This doesn’t take into account of course the ones who resist arrest or detention, or get shot fleeing, or have stuff planted on them.
Socialism doesn’t change that. The fight for 15 doesn’t change that. Income inequality doesn’t change that. Medicare for all doesn’t change that. And it is definitely not a fucking distraction.