Illegal searches vs. legal searches seem to always be in the news. Well, here is the problem with most searches. If the police stop you walking, riding a motorcycle, a horse, quad runner, bicycle or any kind of motor vehicle and the officer smells the suspected odor of fresh marijuana and or burnt marijuana he/she can further conduct their investigation.”[more…]” Meaning, they can perform a pat down search for weapons only, if they find one they can remove it from your person. However, they cannot remove any marijuana which is concealed unless they can prove you were going to use it as a weapon and or they were in danger. Of course, that would be pretty hard to prove. Now then, what happens is the officer will most likely ask you for consent to search your person for any marijuana. Sometimes they will joking ask you something such as this: “Do you have any rocket launchers, grenades, bombs or drugs on you?” This is partly to break the ice with you and more so to distract you in order to get you to say yes to the search…as most people do not hear the entire part of the question which included the word drugs.
Please do not let me forget, if you are in to “open carry” and you are in possession of a firearm, whether it is unloaded or not they can temporarily take it from you. If you have been smoking marijuana and the burnt smell of suspected marijuana is emitting from your person, the officer will most likely arrest you if you do not consent to the search. However, if you do submit to the search you will most likely get arrested anyway. Most jurisdictions will merely write you a misdemeanor citation, some will issue an infraction citation and release you on your own recognizance to appear in court. So then, it is really a no win situation! I say this because the officer most likely will never tell you that you do not have to give consent to any search. But like I said if you piss him/her off then they will arrest you for public intoxication and or driving under the influence. So again, it is a no win situation. Remember, you do not have to submit to any field & sobriety tests, especially for public intoxication. One test most officers give is the gaze-nystagmus test, which most do not know how to correctly perform unless they have attended the D.A.R. – D.R.E. – which basically means drug expert recognition course. The D.A.R. course is about a one week classroom seminar in which they must pass the tests to pass the class to be certified. The D.R.E. is the better course and it is about a two week course, and again they must pass all tests…this course is partly done in the field actually arresting people for being under the influence and or testing for under the influence….so it is more difficult Either way, not all officers pass these courses.
Nevertheless, like I said you DO NOT have to submit to these tests, you may say no. Now then, if the officer arrests you for driving under the influence of marijuana you still DO NOT have to perform these tests, however, he/she will ask you to submit to a blood, breath or urine test later which you must submit to or face other legal restrictions. Plus, even though I said blood, breath or urine…most likely you will only be offered a blood test as this is the most accurate. Most likely they will not offer breath as marijuana breathe samples cannot yet be captured with an intoxlyzer and or breathalyzer machine. And the urine test is normally not offered as the officer knows that it is the weakest to test. By the way if you refuse, most jurisdictions can hold you down and force blood from you. So then, check your laws in your state to find out for sure. Okay, back to the illegal searches vs. legal searches. If you are a pedestrian there is case law called Terry vs. Ohio which you all have heard of but the way you know it is more commonly known as “stop & frisk.”
Again, the officer would have to have good reason to do this… which is reasonable and or probable cause. There is a cop thing called “consensual ped check.” A ped check is someone walking on a sidewalk, street or public place. If the pedestrian is walking in the street there is a vehicle code in most jurisdictions which prohibits people to be in the roadway, and they can stop and cite you for it….kind of like jaywalking. most of the time they stop people walking and will pull their patrol car up ahead of the person walking, they will not put their lights on or if it is at night they will not illuminate their spot light, this way they can later say they did not stop you. They will park ahead of the person…get out of their unit and allow the person to walk up to them. The officer will most likely be friendly and introduce himself/herself to the person and ASK if they can speak with them. The person usually agrees. The officer will say carry on some idle conversation then ultimately ASK for some identification.
If the person/s have NOT committed any crime/s then the person/s DO NOT have to give the officer any identification. Remember, he/she merely ASKED if they could speak to the person/s. Plus, the officer merely ASKED if they could see the person/s identification. The person/s are FREE to walk away at anytime. The officer will have to get back in his/her car and leave as they will not be able to detain the person/s. If the person/s wreak of fresh/burnt marijuana that is different and they will not be going anywhere. Are you starting to get the picture? So then, do not get to hasty with the officer even if you have not committed a crime, if you wreak of marijuana they do have a reason to detain and ultimately will arrest you if they want to. Most will not, they are looking for other drugs, weapons or wanted fugitives. No worries here, just be aware of your rights. Most people who get arrested on ped checks get themselves arrested by consenting to the searches when the have the RIGHT not to be searched. Most people are not familiar with the law and easily give into the officers wishes because they are scared. Here are some other things to keep in mind:
- Yes, you can be arrested for riding a horse for being under the influence of marijuana, it is just like driving under the influence of an alcoholic beverage/s.
- Yes, you can be arrested for riding a bicycle for being under the influence of marijuana, it is just like driving under the influence of an alcoholic beverages/s.
- Yes, you can be arrested for riding a quad runner for being under the influence of marijuana, it is just like driving under the influence of an alcoholic beverage/s.
- Yes, you can be arrested for riding a motorcycle/scooter for being under the influence of marijuana, it is just like driving under the influence of an alcoholic beverage/s.
If you are arrested for any of the aforementioned, yes the officer can search you. Plus, they will search your vehicle without your permission as they do not need your permission, they have the right under the law to do an “inventory search” of your vehicle and list all contents in a special tow report…as undoubtedly they will tow away your car. Most agencies will not leave it parked due to liability issues. Whatever you do, if you get arrested and you are in possession of any illegal substance please tell the officer before you get to the jail. Once at the jail, you will see a sign on the door or entry way stating that is is a felony to be in possession of any illegal substance when entering the jail. So be good to yourself and do not pick up an extra felony. Okay, there you have a little about the law to hopefully help you out down the line. Lastly, do no waive your Miranda rights. Miranda vs. Arizona is a famous case where the police are obligated to advise you of your rights IF they are going to ask you any questions after you are arrested. Just say, “NO.” If you say no then you will be okay, the ONLY reason the officer wants to speak with you is to write down your statements in his/her report to be later used against you. The officer may tell you something such as: “Look help yourself and just be honest.” Or, “I’am trying to help you here but you aren’t giving me anything.” These kinds of statements are used by the police every day in the field. Just say no and ask for an attorney, they will not push the issue any further… Good luck to you my fellow Americans!