Weed is becoming ever more legal in the United States, especially in Colorado and Washington, where voters legalized the drug two years ago. Other states are likely to follow suit.
But in much of the rest of the country, penalties for pot possession can be harsh. In many states, jail or even prison time are possible, and fines are typically stiff.
So what can the cops do to you if they suspect you of a marijuana crime? How far can they go to uncover evidence, and what rights do you have in the face of their suspicion?
Police Can Stop You
Under a 1968 ruling by the Supreme Court, the police are allowed to conduct what is known as a “Terry stop.” The case was Terry v. Ohio, hence the nickname.
A Terry stop, which amounts to a cop telling a civilian to stop, is allowed when an officer has “reasonable suspicion” the civilian is involved in criminal activity – a lower standard than the “probable cause” required for a search warrant or an arrest. The officer is also allowed the give the person a pat down for weapons.
In the real world, cops tend to stop many more people of color than they do white suspects. The Terry stop is often used even when police don’t have reasonable suspicion, but the courts have generally refused to address the problem.
The key thing to remember if you’re stopped is that the police cannot force you to empty your pockets unless they have a warrant. They may ask you to do so in a manner that suggests it’s not a request, but you always have the right to say no – and you always should.
Police Can Question You
Whether during a Terry stop, a traffic stop, or an official criminal interrogation, police can ask you about anything and everything they like. They legally can and often will lie to you, typically by claiming they have evidence they don’t really have.
But no matter what the circumstances, you have the absolute right to remain silent. This right, inscribed in the Fifth Amendment to the Constitution, applies as soon as the cops open their mouths; not just when you’re arrested. And the less you say from the start, the harder it will be for prosecutors to press charges against you.
Never talk to the police unless it’s an emergency or they’re just asking for directions. Every word that comes out of your mouth is potential evidence against you, and cops are very good at getting people to say incriminating things.
Police Can Search You
The Fourth Amendment promises protection from “unreasonable” search and seizure. In most cases, it also requires a warrant signed by a judge if police want to enter your property.
Cops often try to sidestep this requirement by asking for consent to search. You should never consent to a police search of anything you own, even if you know they won’t find weed. That said, cops routinely lie and claim suspects have consented to searches when in fact they haven’t.
Warrants are almost always required for searches of homes, apartments, hotel rooms, and other dwelling places. There are exceptions. Cops can enter if they believe there are “exigent circumstances,” whether because a criminal is likely to destroy evidence or because someone’s life is in danger. And if you leave weed where cops can see it through a window, they can enter on the grounds that the evidence was in plain sight.
If you’re in a car, different rules apply. Then the police don’t need a warrant, just probable cause. But again, always say no if they ask to search your vehicle.
Police Can Arrest You
Generally speaking, cops don’t need a warrant to arrest you as long as they have probable cause to believe you have committed or are committing a crime. That rule applies almost everywhere.
But it doesn’t apply to your home. The law views the home as its owner’s castle, and (almost) anything police want to do inside your home requires a legal warrant.
If you know police want to arrest you, and you’re not ready to go, make sure you don’t comply with their requests to step outside. It’s a ruse designed to put you right where they can arrest you.
Those are the most important things officers can do to make your life a living hell. But what can’t they do?
Police Can’t Make You Incriminate Yourself
The Fifth Amendment protection against self-incrimination applies regardless of whether you’re a suspect, a defendant, a person of interest, or a witness. Police can force you to unlock doors for them or give them keys, but they can’t make you divulge lock combinations, and in some states they can’t demand your passwords, either.
Of course, there’s one very simple way to avoid saying something that makes you look guilty: As soon as any kind of questioning starts, ask for a lawyer. You have that right under the Sixth Amendment. As with silence, you don’t have to be under arrest to direct police to speak to your attorney.
If you already have a lawyer, just give his or her name to the cops. If you don’t, one will be appointed to you as soon as legal proceedings start. But hopefully it won’t get that far in the first place – especially if you remember to keep your mouth shut.
