Let’s ignore the situation of police misbehaviour and the connivance of the legal system. If the authorities are not going to play by the rules, then there’s no point discussing the rules. They can do whatever they want, whatever they are allowed to get away with, and this of course is not specific written rules.
The “no consequences” applies to qualified immunity where the police cannot be sued for doing their job, even badly, unless it can be shown they ought to know better. The SCotUS most relevant decision has basically been interpreted as unless the specific circumstances have been shown to negate qualified immunity, it applies. The policeman personally cannot be sued for violating your rights.
This does not change the rules about the criminal charges against a defendant, where evidence is still protected from unlawful search or interrogation.
The question in this thread is - what do the rules allow, and how can they be made to work against innocent accused?
200 pounds of street weed packaged for re-sale isn’t legal, just like 1/2 a bottle of whiskey (a legal substance) in your bloodstream and the other half sitting in your cup holder isn’t either.
Same goes for guns; if a driver tells you “I’ve got guns and ammunition in the car”, do you have to assume it’s all legal (because it could be) and can’t verify? I’m pretty sure you’ll want to see them and if told “no” that you’ll insist very strongly and find a way to see for yourself.
I’m a defense attorney, but a judge would bust my rear end for making this argument. Marijuana may be legal in NJ, but you cannot enforce federal law? And even if it is legal, it is not legal to smoke it in a car, no more than how alcohol is legal and you still can’t drink alcohol in a car. RAS is not proof positive. It is what it states, a reasonable articulable suspicion, and if you pull over a guy who has been blazing away, you have RAS that he is operating a vehicle under the influence, no?
No we can not enforce federal law. Never have never will. Weed is legal in NJ. It doesn’t matter if it’s federally illegal. That’s the FBIs job and they aren’t making weed busts.
A judge will not bust my rear end for this because as I stated it’s specifically prohibited by statute. it’s not case law it’s written law. We can not use the smell of marijuana to base any investigation off of. If there is a case for DWI it will have to be made off of other observations. If the other observations lead to probable cause the odor can be mentioned as part of the totality of the circumstances.
There are other issues with the weed law due to poor planning by the state but I won’t get into it here.
DUI is a traffic offense. Smell of alcohol can be used as part of the evidence for impairment. Smell of alcohol can not be used as PC for a search of a vehicle. Smell of alcohol alone is not enough to prove DUI.
Insert marijuana for alcohol and the above remains true. For my state only of course since we recently made weed legal. Other states that have legal weed may do things different.
No. But it is an articulable reason the officer can make for escalating the traffic stop to more than handing you a ticket. If the court says smell alone is not enough I am sure they can add other reasons. Slurred speech, blood shot eyes, etc. What judge will gainsay them?
In the James Duane video above the officer says he can follow you forever until you inevitably break the law and he has justifiable cause to pull you over. Do you think they can’t continue to find justifiable cause to escalate the traffic stop if they are of a mind to?
He could also drag him out of the car and shoot him. This is FQ. I will grant that some police are bad. I will not get into what if discussions about what someone who has bad intentions might do. If you wish to talk about what the law is I will continue the discussion. If you want to continue a cops are bad and do whatever they want discussion I’m sure you can find others that agree.
Is it completely de-regulated and legal like bottled water, or are there still restrictions? In Canada at least it’s a controlled substance, and there are both Federal and Provincial laws stating who can have how much of it from what source and where & how it can be stored and used, similar to alcohol and tobacco.
In my province for example you can only have 3g on your person, you need to be 18 to buy or possess it, it has to come from a licensed dispensary (or other legal supplier), and you need to be able to show the latter.
There must be similar laws in your area… it’s hard to believe your 16 year-old kid can drive down to the local street corner with a joint behind his ear and pick up 20 pounds of the stuff from a drug dealer. How can the smell or indication of a controlled substance in the possession of someone not allowed to have it not be considered evidence of a crime?
So just to be clear, I am driving through NJ at 67 mph on the Jersey Turnpike. You light me up. I pull over and you see an open Bud Light sitting in the center console. Because alcohol is legal in New Jersey you pay no attention to it at all?
Right, and I’m usually the guy arguing that the traffic stop was bad. But I find it hard to believe that a state, New Jersey of all states, would say that a cop who pulls a guy over and his car smells like Cheech and Chong’s van simply has to ignore that because “marijuana is legal” in NJ even though federal law supersedes that.
ETA: And AFAIK, it is not legal in any state to burn one while driving down the Turnpike, so that conduct that is witnessed isn’t legal in NJ, so why can it not be RAS of a crime? And again, I’m a defense attorney who usually argues this kind of thing.
I won’t go into the all of the problems with the new law since it will be a big hijack. To give you a taste I’ll just mention that they legalized the possession of marijuana for personal consumption before they put in place any system to legally sell marijuana. But on the level of a regular patrol officer the effect is that marijuana is totally ignored.
Having an open container of alcohol in a vehicle is a traffic offense. There is no open marijuana container law.
If federal supersedes state law the FBI and DEA can come in and make marijuana arrests if they want. I have not been deputized federally. I have no jurisdiction to arrest or charge someone with a federal crime. Most federal crime is mirrored in state law so there isn’t an issue. Use of marijuana isn’t any longer in my state. I don’t know why you are having a hard time understanding this. We are not the first state to legalize it. I am expressly prohibited by statute from doing what you think I should be doing.
Perhaps not, but is it not evidence that the guy is going to kill someone with his vehicle? If you see an open Bud Light, you just don’t write an open container citation and let him go? You investigate if he is under the influence, no?
In Florida, at least, where medical marijuana is legal, the law has drawn a distinction between the smell of “raw marijuana” and “smoked marijuana”. Meaning, if a cop smells the odor of burning weed (reflecting that it is being used in the car), it is sufficient reasonable suspicion to conduct a search. But if it is only the smell of the unsmoked plant, it could be legally transported medical stuff, and therefore doesn’t provide a legal basis for the additional search.
So, you are right that it is illegal to drive and smoke, and observations related to that illegal activity can justify a search, regardless of the fact that it might be legal to consume at home.
(In Colorado, where I lived for a few years, and where recreational marijuana is legal, I don’t recall this issue. But I do remember that the court deemed that the mere odor of marijuana wasn’t reasonable suspicion, even though the limit of personal possession is 2 ounces. The court has reasoned that a cop can’t possibly differentiate between the smell of less than 2 ounces versus more than 2 ounces.
For similar reasons, a dog sniff isn’t reasonable suspicion if the dog is only trained to detect marijuana. Now, when dogs are used in Colorado, they are trained to detect other drugs, as well. That way, if the dog signals, the police can say that it might have been, for example, meth or coke.)
Why can’t the officer argue that he is a good private citizen arresting a person committing a federal felony in his presence, thus justifying RAS for whatever happened? As defense counsel, I would never make that argument, but a prosecutor should.