Ask a Weed Lawyer: What Are the Worst Legal Myths?
A.) As long as you've done nothing wrong, you have nothing to worry about.
John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.
The internet has provided new opportunities for gullible people to advertise their willingness to believe and repeat nonsense. In the old days, uninformed people were content to share bad legal advice with each other around the bar. Today, they have a medium to spread misinformation around the world with the click of a button.
Here’s a compilation of my favorite law-related urban legends:
1. Police cannot search you without a warrant.
There are many, many exceptions to the warrant requirement. Common situations in which police conduct legal searches without warrants include:
Consent searches: If you allow the police to search you, your home, or your vehicle, you cannot later claim that they violated your privacy. Never consent to a search.
"Terry stops” a/k/a “Stop & Frisk”: Police may approach and briefly detain individuals in public places if an officer has “reasonable cause” to suspect that the person has recently committed a crime, or is preparing to commit a crime. After the officer detains the subject, police can pat him or her down for weapons. Anything discovered during a pat-down search may be used as evidence.
Image via Joshua Kehn
To prove you were not tortured, they establish that police read your Miranda rights to you.
Searches incident to arrest: If you are arrested for any reason, police can search anything that was recently near you, including the entire interior of your car.
Car searches: Police do not need a warrant to search your car if they have “probable cause” to believe that the vehicle contains contraband or evidence of a crime.
Probation searches: If you’ve recently been convicted of a crime, you might be subject to search at any time, depending on the terms of your probation.
Exigent circumstances: The legal equivalent of “No time for backup.” If evidence is at risk of being destroyed, police may act without a warrant to ensure that it is preserved.
2. If cops fail to read Miranda warnings, the case must be dismissed.
Miranda warnings only apply in a narrow set of circumstances: If you are arrested (actually in police custody), you are interrogated about a crime, and you confess to the crime, prosecutors must prove that the confession was not “coerced” from you before the statement may be introduced as evidence against you at trial. To prove you were not tortured, they establish that police read your Miranda rights to you, that you understood that you had a right to end the interrogation, and that you voluntarily waived that right by speaking to police.
Miranda rights do not apply before you are arrested. They also do not apply if you make a “spontaneous statement”—one that is not in direct response to police questioning. Talking to a snitch doesn’t trigger Miranda rights either, since you can’t be coerced if you aren’t aware that you’re “under police interrogation."
Many criminal cases do not rely on the defendant’s confession. In DUI cases, for instance, the prosecutor usually has all the evidence needed based on the arresting officer’s observations. There is no need for an interrogation; so there is no need for Miranda warnings.
3. If you’ve taken acid more than a certain number of times, you’re legally insane.
The legal definition of insanity has nothing to do with the number of times a person has taken LSD. Lots of crazy people have never dropped it.
The technical requirements to establish an insanity defense vary by state. They generally require the defense to prove that the defendant did not understand the nature or the wrongness of his acts.
4. Calling a drug sale a 'donation in exchange for cash' somehow makes a legal difference.
This particular myth is inexplicably popular in California medical marijuana dispensaries. It’s pure nonsense.
By definition, a “donation” is a gift given in exchange for nothing. Try taking your weed out of a dispensary without making the “suggested donation” and see what happens.
Image via Chas Redmond/Flickr
5. Undercover cops must identify themselves when asked, otherwise anything they do is entrapment.
For obvious reasons, undercover cops are not required to identify themselves.
Entrapment is a legal defense that applies when police induce you to commit a crime under circumstances that would objectively cause a normally law-abiding person to do the same. For instance, if a cop held a gun to your head and tells you he will shoot if you do not jaywalk. Entrapment does not apply when undercover cops provide an opportunity for you to commit a crime, and you take the bait.
6. Criminal laws prohibit possession of 'marijuana,' but they don’t say anything about 'cannabis,' therefore it’s legal to grow / possess / distribute 'cannabis.'
This one is so stupid that it barely requires a response. But here I am.
Just imagine the arguments that defendants could employ if this were true: “No, your honor. That’s not marijuana, it’s ganja / reefer / weed / chronic / trees / jazz tobacco, etc.”
California laws, by the way, do expressly prohibit possession and cultivation of “cannabis sativa,” except by qualified patients. That legal wording has spawned the equally-spurious argument that “the law doesn’t prohibit cannabis indica; so…”