Can the First Amendment Be Used to Fight a Drug Possession Charge?

Factual Questions
1

It appears that this post did not register on the boards the first time, so I will post it again. Please accept my sincere apologies if I am posting it again:( . Remember people, to avoid this problem, always save the post by highlighting the text and then pressing Ctrl+C.:slight_smile:

DISCLAIMERS: I do not believe people should take illegal drugs. I have never taken them myself. They are destructive and presently unregulated. And although I, like many liberal libertarians, hope for the day when drugs, like all victimless crimes, are legal. At the present time a urge people who read this thread not to take that unfortunate path.

That having been said, now on to the point of my thread.

I don’t have the specific information that I speak of now. Certainly if I ever find it, I will put the cite here without hesitation. But for now I will simply speak generally, so bear with me.

As I understand it, whenever another constitutional right–like the Fourth Amendment–coincides with the First Amendment, and its guarantee of freedom of expression, conscience, etc.–the right becomes all the more strong that way. I know this to be true, because I once heard that the government is very limited when it comes to doing things like, say, raiding political party headquarters–as opposed to, say, a known drug den. The Fourth Amendment, as I have already implied, has to do with our right to be free from unreasonable search and seizure:

The First Amendment, as any school boy should know, goes:

This is a very important fact for a couple of reasons. The US Supreme Court ruled long ago that the First Amendment is at the top of the US Bill of Rights for a reason. These rights are more important that any other rights anywhere in the document–and as such are given special status by the courts too. (According to my law dictionary, this doctrine is known as “Preferred Rights”.)

Now, also according to my law dictionary (Barron’s BTW–I highly recommend it for completeness and simplicity of use) the lawfulness of a search is to be determined by the knowledge of the officers before the search and not the “fruits thereof” [:Barrons again]. So to cut to the chase, let me put it this way: what if you put your “weed” in a flat envelope marked "American Communist Party? Could you use that as a valid reason to call a motion to suppress evidence? And if yes, why don’t more people do it (please don’t though!:wink: )?

Hmmm…

:smiley:

2

Would you mind explaining what this is based on, for those of us with little knowledge of law or current events? Are you saying that police often seize envelopes saying “American Communist Party” (with no other prior knowledge of ill-doings), find illegal substances contained therein, and then manage to prosecute people based on that? It doesn’t seem to me that you’d need to invoke the First Amendment - it seems like a straightforward Fourth Amendment violation.

3

I am sorry if I didn’t make myself clear. Please remember that there are limits on time, space, etc. on these boards.

Whenever a constitutional right covers the same area of the law that the First Amendment does, it makes the protection given by this right more strong. Think of the two rights as two shadows. When the two shadows cross in some area, the shadows become darker–or stronger in this case.

So going by the knowledge that I have of law–which isn’t as much as, say, a lawyer would have;)–there could be a dilemma here. It would almost seem that a violation of free speech or freedom of association [another First Amendment right, the Supreme Ct. says] were involved here too (cf. my example of an envelope that said “American Communist Party” on it). And thus you would have a much stronger case to suppress evidence.

Now, it almost seems like I answered part of my own question. But the only thing is, I never hear anyone bring this point up. So is what I assume correct? Or is there some other legal point I missed? I still wonder…:slight_smile:

4

I may be missing the point, but if the police suspect that a package contains illegal drugs, and this suspicion would ordinarily be enough to justify search and seizure, they surely cannot be prevented from searchng and seizing merely because the package is labelled “American Communist Party”? The First Amendment would only be infringed if the package were seized becuase it was labelled “American Communist Party”, but not if it were seized for some unrelated and entirely valid reason.

5

Yes. If they have a warrant to search for drugs, then they can search for drugs. It doesn’t matter where they find the drugs.

Also, if while searching for drugs, they found something else illegal instead, the search warrant covers that; if they had reasonable belief that drugs were on the premises, and while searching they found stolen property, you could be arrested for theft.

If they arrested you for possessing Communist literature, though, they wouldn’t have a case, since possession of that isn’t illegal.

6

The title of this thread made me think it was going to explore the use of cannabis in religious rituals - Rastafarianism, and the like.

Ah, well.

The OP’s hypothesis is incorrect. The Fourth Amendment prohibits unreasonable search and seizure. The First Amendment forbids Congress (and, through the Fourteenth Amendment, the states) from regulating speech, especially political speech.

There’s no particular reason to believe that searching an envelope labelled ‘American Communist Party’, assuming the search is otherwise reasonable, is an impermissible government infringement on speech or expressive political conduct.

It’s possible this argument could be raised in other ways. For example, there is an organization called NORML - the National Organization for the Reform of Marijuana Laws. They are politically active, exercising their rights under the First Amendment to distribute legal literature calling for the decriminalization or legalization of marijuana.

If a law enforcement officer sought to obtain a warrant to search NORML offices on the theory that, since they espouse the legalization of marijuana, they must have marijuana, that warrant would very likely not issue – or if it did, on that rationale, it very likely would be quashed, because that statement, without more, does not rise to the level of probable cause required to sustain a search warrant. But that’s at best only a tangential application of the First Amendment - the problem is simply resolved using well-understood Fourth Amendment analysis.

The brief answer to the OP’s hypothetical is no. There is a wealth of interesting discussion to be had under the freedom of religion aspect of the First Amendment as it applies to marijuana use, though.

  • Rick
7

I thought, and the 4th amendment quoted above in the thread seems to support, that the warrant had to be specific as to what the police were looking for. Thus, if the warrant said they were looking for illegal drugs then the polce would have no legal way to sieze illegal guns during that search. Bricker, if you are still here, can you clarify the situation? My ignorance of legal matters needs fighting.

John

8

No. Once they’re conducting a lawful search, any evidence they find is lawfully obtained and can be used, even if it wasn’t what they expected to find.

9

Thing1 I think what you are referring to is “particularization” (–Barrons Law Dictionary again. Boy, I love that book;)). The warrant must say exactly what the police expect to find and it must be illegal. Mere suspicion and a warrant that said they were merely looking for “illegal stuff” would never hold up in the courts.

Ah, but if they came across something else in the process of searching, then the doctrine of plain view would come into play–it wasn’t the police’s fault, they merely stumbled upon it.

Interesting thing about that is–according to my Court TV legal resource guide (another book I highly recommend)–the search must still be confined to where the police would expect to find the item they are looking for. The Court TV book uses the example, that if the police were looking for a rifle, they couldn’t justify looking in a small dresser drawer, because such an item could never fit there! However, now, if they were looking in the closet and they found a stash of weed–busted!

I would also add to that that as the Supreme Ct. gets more conservative, police are going to be able to get away with more and more. So a conservative associate justice might say for the above example, Well, maybe it wasn’t the policeman’s fault–he made an honest mistake. Or, maybe he thought the suspect disassembled the rifle and put it in the drawer that way.

I hope answers your question. :slight_smile:

10

Well, no, actually, if you mean that the framers consciously put the free speech & religion amendment at the head of the Bill of Rights. It ended up there through the vagaries of the amendment process.

The Bill of Rights, as proposed by Congress, had 12 articles of amendment: Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789.

The first amendment in the list would have changed the population:member ratios used to calculate the size of the House of Representatives. That amendment only got 8 votes, not the needed nine, and so it never was ratified.

The second amendment in the list would have provided that changes to the pay of Representatives and Senators would not take effect until after the next election. Only 7 of the original 13 states voted for it, so it did not pass at that time. It was eventually ratified in 1992, becoming the 27th Amendment.

The third proposed amendment, dealing with freedom of speech, got the necessary 9 states, so it became the first amendment to the Constitution.

However, of the 9 states that voted for what became the 1st Amendment, 8 had also voted for the proposed first amendment, and 6 had also voted for the second proposed amendment.

To summarise, both Houses of Congress put the free speech amendment third on the list, and a majority of the states that voted to ratify the free speech amendment also put it third on the list.

In light of the ratification history, it’s hard to argue that there was a special effort or conscious plan to make the free speech amendment the First Amendment.

I would agree that the First Amendment passed while the other two didn’t because of the importance of the topic, and in that sense it’s there for a reason. However, its position at the head of the Bill of Rights was not planned by the drafters as a conscious symbolic gesture.

11

RE: the warrant for one thing and finding another, some qualifications must be made.

If the warrant specifies that they’re looking for drugs, and while looking in the drawer for drugs, they find a bloody knife, they can seize the bloody knife.

however, if the warrant specifies they’re searching for a fugative criminal, they cannot look inside your desk drawer, since there’s no way the person could reasonably be there.

IOW, it has to be physically possible for them to find what they’re looking for in the space they’re looking.