Yes, a felony or breach of the peace committed in your presence. If I smell marijuana on someone, I have probable cause to believe they are committing a felony in my presence. I don’t agree with the law and the feds should repeal it, but it seems like pretty basic textbook stuff to me.
Then you don’t understand the very legal concept of a citizen’s arrest. If someone has probable cause to believe that you have committed a felony or breach of the peace in their presence, then they are performing a very lawful arrest and not an “unprovoked assault.”
I hope you haven’t been citizens’ arresting anyone. Simple possession is a misdemeanor under federal law. 18 USC sec. 844.
As was recently discussed in another thread, you’d better be very sure if you perform a citizen’s arrest. And those laws vary by state, so it’s not just one simple rule.
DUI is a breach of the peace in my state and officers outside of their jurisdiction have had arrests upheld because they were acting as private citizens.
But that is my debate in this FQ thread. Can a state pass a law that prohibits someone from enforcing federal law? I don’t think that fits in our federal structure.
My experience is kinda dated, but that would get you a horselaugh. They are not gonna send out an agent for that. So, this is a ridiculous hijack.
The Cop would get sued and qualified immunity would not apply.
No, maybe, nope and no.
And for those posters thinking this could work- show us the case law or the news article. AFAIK, it hasn’t happened. Not to mention, citizens arrests outside of “merchants privilege” are rare and hazardous. True, sometimes some citizens grab a perp as he is running so the police can make the arrest.
Do you really? It simply idicates that at some time in the near past the person was in the vicinity of pot. I don’t think that’s rises to the level of probably cause? You’d better be right. And how would you prove you were right if you are not allowed to search the car?
I think it is rather a simple thing. I get that everyone wants weed to be legal. I’m indifferent about it. But a police officer pulls over a car for speeding or no matter the infraction. It smells like Cheech and Chong’s Ice Cream truck. Isn’t that enough for probable cause to believe that the driver might kill someone?
Aren’t we told all the time that arrests don’t have to have proof positive results? A recent case says you can pull over a car if the registered owner has a suspended license.
Not a felony. And man, I reeked when I came out of that Grateful Dead concert. So, try it, and find out what your insurance covers for the lawsuit, and whether or not the guy you grabbed will get the police to arrest you for violating his rights and felonious restraint.
Wait- now you are moving the goalposts from a citizens arrest for possession to a Driving under the influence charge. Sure the cops can test for that if other evidence points to that. You can drink or smoke dope legally, but you can’r drive impaired. You can’t even drive impaired under prescription drugs.
But DUI doesn’t give you the right to search the vehicle. It allows you to test the driver.
You can be as mad at me as you want. An arrest does not mean that it is absolutely positive that you are guilty. You just came from a Grateful Dead concert and smell like weed? Analyze the law and see if someone can make an arrest. That’s not PC that you were passing around a joint? I don’t like it, but it is something that is there that nobody can explain away.
ETA: Even as a private citizen, I have probable cause to believe that you are committing a breach of the peace (DUI) in my presence. I may arrest you and subsequent to that, search your “reach and grab” area for evidence of the crime I suspect. Hey, I don’t like it either.
Then I think you very much misunderstand our federal structure.
And the law under discussion doesn’t prohibit “someone” from enforcing federal law. We’re specifically talking about law that prohibits state officers from taking law enforcement action based on the smell of marijuana alone. And you’ve added in the twist of taking that action as a pretext to get to other evidence to get that evidence admitted at trial in state courts for a state law violation. You’re so wrong about this that it’s silly.
My state even has a “silver platter” doctrine that says, if federal agents take actions that state officers could not due to state constitutional limits, and then serve that evidence up to the state on a silver platter, the courts, as an arm of the state, won’t admit the evidence because it violates the state constitution.
Again, states’ powers are plenary. The federal government is limited to its enumerated powers. Which enumerated power prohibits states from telling their law enforcement officers which laws to enforce?
The Supremacy Clause. Yes states have plenary powers. I disagree with the Raich case, but it says that federal law supersedes your state law. And how can the state, who agreed to give the feds “commerce clause” powers, forbid a good citizen from enforcing a duly enacted, very serious according to Raich, law within its borders?
So, if I’m out selling candy bars with my son to support his school’s curling team, and I get a whiff of ganja from a neighbor’s house after he opens the door, am I supposed to bust in and tie him up while my son calls the FBI?
Is the answer different if I just see a bong on the coffee table?
Raich was about whether the state had successfully cabined legal (under state law) marijuana production so that the federal law could not be applied within California. Federal and state officers destroyed marijuana plants and the affected people sued the federal government, contending, among other things, that there was no longer a federal jurisdictional hook under the commerce clause.
The Supreme Court rejected that argument, saying that even an entirely intrastate legal marijuana market affected interstate commerce.
The supremacy clause only comes into play, as I’ve said before, when state and federal law actually conflict. Under federal law, a state officer is allowed, but not compelled, to take actions to enforce federal criminal laws. Under some states’ laws, a state officer is prohibited from taking certain actions, including ones that would be directed to enforcement of federal criminal laws. There is no actual conflict between those. An officer can comply with both by taking no action to enforce federal criminal law.
There’s simply no argument to the contrary unless you can point to some positive federal law that compels state officers to take federal enforcement action. (Hint: There isn’t one.)
That’s my very objection for reasons stated above. The commerce clause, lawfully under Raich, makes it illegal to possess marijuana. How can my state make it illegal to enforce that law? Under Printz, the feds cannot mandate enforcement, but how can a state forbid it?
Georgia has (mostly) repealed its citizen arrest law after the Ahmaud Arbery case.
It is still allowed in a few narrow instances.
The law, which allowed any citizen to “arrest” another if a crime was committed “within his immediate knowledge,” has been replaced with specific language to provide for citizen detainment in specific circumstances, including shopkeepers who witness shoplifters and restaurant owners and employees who witness “dine and dash” customers. SOURCE
FWIW, when I worked as a waiter (long ago now), we were explicitly told by the management to never, ever follow a dine-and-dash customer out of the restaurant. That was a company policy but I think a common one in many restaurants (we could catch them and confront them if they were still in the restaurant).