The other day I was talking to a prosecutor. And I told him that we needed to keep my client’s public record clean. “We don’t want words like ‘marijuana,’ ‘drug paraphernalia,’ and ‘criminal conviction’ there.” And he mischievously replied, “You know how he could avoid all that, don’t you? Don’t get caught.” He was joking, but there was some truth in it. So, how can you avoid a marijuana arrest in a car?
Personal Safety during Prohibition Lite
Use: As of this writing, twenty-three states have legal marijuana for responsible use by adults 21 years and older. And Minnesota is one of the growing number of states with legal adult “use” cannabis.
Possession small amount: So today in Minnesota, cannabis (hemp, medical, etc.) is legal to possess, depending upon form and quantity. The 2023 Minnesota cannabis reform law is complicated, but it legalized possession of small amounts by adults, unless in a motor vehicle.
We should know by now that marijuana is safer than alcohol. After all, no lethal overdose has ever happened with marijuana; unlike frequent deaths from overdoses of alcohol, aspirin, and caffeine.
But in Minnesota today despite a majority in the polls favoring legalization; criminal Prohibition possession laws lingers on, destroying innocent lives. So we should fully legalize in Minnesota. And here is What Marijuana Legalization Should Look like in Minnesota.
In the meantime, know your rights. And watch your six!
Nine tips for avoiding a marijuana arrest in a car
1. Situational awareness vs. marijuana arrest
Guess where the vast majority of police contacts with people happen? Correct – in or near a motor vehicle. So, the best way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.
Complacency can set in though. If it hasn’t happened yet, it never will. Right? Be smart. And play the long game. If a scenario is unlikely, with repetition (miles traveled in the car), it inevitably will happen. There will be a traffic stop. And when it does happen; marijuana should not be in the car.
Minnesota: If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, she:
- keeps it under the “small amount,” two ounces (plant-form) or eight grams (cannabis concentrates) in public, but
- avoids possession in a motor vehicle as much as possible. But if so, sealed in original approved packaging or in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
So, the number one way to avoid a marijuana arrest in a car is: don’t have it the car.
2. “Odor of marijuana:” Potential for Police Abuse
The most common excuse police use to search after a traffic stop is “odor of marijuana” plus some other fact they view as suspicious. (Odor of marijuana alone is no longer a lawful reason to search.) The odor can be either fresh or burned. But this is prone to abuse by police officers since it’s arbitrary and impossible to verify. Even so, avoid having the odor of marijuana either on your person or in your car. And, if the odor is there, be sure not to have any actual marijuana in your car.
Have you or anyone you know experienced “nose blindness?” A cigarette smoker may not be able to smell the odor of past cigarette use on another. And a person who has been drinking alcohol– can’t smell the odor of alcohol on another person. But non-users can smell it, right off.
Assume that if you’ve been smoking it that day, there is odor. If smoked in the car, the odor may linger for days or more. (So, don’t ever smoke in the car.)
The second way to avoid a marijuana arrest in a car is: don’t smoke in the car. Don’t have fresh in the car. And avoid any odor in the car.
Cannabis odor alone is no longer enough probable cause to search a car.
Contact Attorney Thomas Gallagher for more on this.
3. Consent? Avoid a marijuana arrest
“No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any search.
You could make an excuse: “I’m late, for a very important date.” But make no excuses. And do not offer any justification for refusing a search. Be confident, and politely insist.
After all, it’s your sacred, legal right to be secure from searches and seizures; unless they have a search warrant or an exception to the warrant requirement. That’s our Fourth Amendment.
Rape metaphor: avoid marijuana arrest
One of those exceptions is a consent search. Police often ask people “do you mind if I search”? The correct answer is; “No, I do not consent to a search.” And if police try to coerce you to “consent to a search;” is that real consent? (But don’t let them!)
Change it to sex: If someone coerces you into sex, did you consent? Your lawyer may need to make that argument. But far better if you resist all coercion. And do not consent.
If you do consent to a search, you lose your right to object to the search later. Also, if police know they have no legal basis to search without “consent;” they may leave without searching.
So, the third way to avoid a marijuana arrest in a car is: do not consent to any search.
4. You can do both — the third possibility
Don’t lie, and don’t admit. How? Remain silent. Or if words do come out of your mouth make sure that they are:
- not lies, and
- do not relate to illegality.
Easier said than done, however. Silence is golden, and you can’t say the wrong thing when you say nothing.
More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car. And they often then tell police where it is!
Wrong answer! Whether you lie or admit — either way you lose. So, what else is there?
Instead, remain silent – meaning you do not produce words. And tightening your lips may help your resolve. But if you do say something, change the subject. Avoid talking about whether there is marijuana in the car or not. And again, do not consent to a search.
Mind games: Police will try to make you think: “Busted. The jig is up. May as well come clean now. Give up. You cannot win at this point.” But don’t believe that for a minute! And be ready for that trick. Knowing the law can help keep your confidence level up; and help you avoid or minimize legal trouble.
So, the fourth way to avoid a marijuana arrest in a car is: avoid talking to police.
5. Unlawfully prolonged detention
“Am I free to leave?” Police stop you for a headlight out. Normally it takes ten minutes to complete the traffic stop. So they hand you the ticket, and walk away. The government intrusion upon your liberty is then over. And you are “free to leave.”
Now, let’s change the scenario. Police stop you for something normally resulting in a traffic ticket in ten minutes. But this time the officer prolongs the detention. Is that legal?
The courts apply a “totality of the circumstances” balancing test. So judges balance the intrusion upon your Liberty, against claims of reasonable suspicion of criminal activity.
Communicating you want to end detention: But one factor for a judge is: “did the person acquiesce to the detention? Or, did the person communicate a desire to leave?”
Police may say in court that “at that point, the person was free to leave; the prolonged time after that was consensual.” If believed, then the prolonged detention needs less justification; fewer facts supporting a reasonable suspicion of criminal activity.
Since Fleeing a Police Officer is a crime, whether police are detaining should be a simple black and white question. Either you are “free to leave,” or not.
So, make a record. Ask: “Officer am I free to go?” And do it more than once. But say it loud and clear, for the camera and microphones. If you’re asking, you’re winning. This will help your lawyer challenge the prolonged detention, search and arrest later. Or, just start slowly walking away, to force the police officer to tell you to stop. (Yes, you can walk away from a car even if you’re the driver.)
So, the fifth way to avoid a marijuana arrest in a car is: if they’ve detained you a while; ask “officer, am I free to go?” Repeat as necessary. And speak up for the video!
6. “You have the right to remain silent.”
When you hear that, that is your cue to – what? It’s your cue to stop forming words and allowing them to escape your mouth! It’s best to say nothing. But if you want to say anything:
“Officer, I am not a lawyer or police officer. I assert my right to remain silent, and consult a lawyer before talking.”
And repeat as necessary. No matter what they do or say, they cannot require you to speak. So don’t. But follow police commands to physically:
- show your hands,
- lie down,
- hands behind your back,
- stand over there.
Again, however, do not speak.
The sixth way to avoid a marijuana arrest in a car: do not talk about:
- marijuana,
- smoking,
- if you have any,
- where it is,
- or anything at all.
7. Field Exercises? “Nope!”
Sometimes police want to build a case for marijuana driving impairment. So they ask you to perform physical “Field Sobriety Tests.”
You mean I’ve got a chance?: But these are not scientifically valid for DUI marijuana. And their purpose is to incriminate. Even completely sober people have a difficult time “passing” them. If you do them, you will fail. But if you don’t, you won’t.
So, what to do? Don’t!
Police cannot legally require you to do these field exercises. They include the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test. And police cannot require you to perform any field exercises or “Drug Recognition Evaluation” procedures. So, you can and should refuse to do any of these.
When you do, the police officer may invite an excuse. But don’t take that bait! Any excuse could be incriminating. So instead say:
“Officer, I am aware of my legal rights. And I choose not to do any field exercises. Ever.”
Police may ask you again and again. So just keep repeating, again and again, that you choose not to do them – and make no excuses. (Who cares if you have one leg! That’s beside the point.) It’s your legal right.
Important: (If a police officer has a factual basis to suspect driving impairment; she can request that you blow into a Preliminary Breath Test (PBT) machine. And if you refuse to, she can arrest you for that refusal.)
So, the seventh tip for avoiding a marijuana arrest in a car is: politely decline any physical “Field Sobriety Tests.”
8. Smile, you’re on camera!
From the traffic stop, to sitting in a squad car, to the police station, they are recording you. This recording may later hurt you, or help you. And even when in the back of a police car; they are recording you. The recording is on, even when no police officer is in the car. So heads up! And chill.
They are recording phone calls from jail for later use as evidence. So be aware of this. And avoid talking about the case in any of these situations.
The eighth tip for avoiding a marijuana arrest in a car is: be camera and microphone aware.
9. Keep your cool
If arrested, hitting the panic button will only make it worse. Police may exploit your trauma and emotional upset. So remain calm, cool, collected. You can win the long game, by playing defense in the short game.
You or someone on the outside can help you contact a Minnesota criminal defense lawyer. And if need be, contact a bail bond agent. But most people will be able to get out within a few days or less.
So, the ninth and final tip for avoiding a marijuana arrest in a car is; don’t let them push your buttons. Keep your cool. Quiet confidence wins.
Question? Call Attorney Thomas Gallagher, 612 333-1500
Thomas Gallagher is a Minnesota marijuana lawyer frequently representing people facing possession of marijuana and other charges in Minnesota.
In his spare time, he works on legalizing marijuana.
And Attorney Thomas Gallagher serves as a Board Member of Minnesota NORML.
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