As legalization of recreational cannabis makes its way to other states, the confusion of how to implement laws and regulation continues to rise. This is especially true with our 4th Amendment rights. While states are beginning to see the benefits of the legal cannabis, state laws legalizing recreational cannabis still contradicts the federal laws.
As of now there are no laws making cannabis a federally legal substance. It is still a schedule one narcotic in the federal database. As a result, this puts marijuana strains up on the same list as heroin, LSD, and ecstasy.
With that said, the information provided in this article is intended to help clear up any confusion about the 4th amendment and cannabis.
What is the 4th Amendment?
The 4th Amendment was added to the constitution on December 15th, 1791. The purpose of this amendment was to protect the country’s citizens against unlawful search and seizures. Furthermore, the newly established United States intended to protect its citizen’s rights to privacy, unlike the British during their rule of the colonies.
The main goal of the 4th amendment is to protect citizen’s rights to privacy and freedom from unreasonable government intrusions. In addition, the 4th Amendment requires probable cause for a judge issued warrant. Warrants must detail the location of the search. A warrant must specifically states where police can search and what they are looking for.
Searches done without warrants require certain circumstances. Particularly, if evidence or a person is in imminent danger, authorities can enter without a warrant. Additionally, if a suspect is going to escape in that moment, police can execute a search without a warrant.
Improper searches are subject to suppression of evidence.
Defense attorneys often use this amendment for suppressing any illegally obtained evidence.
General Search and Seizure Protocols
Searches require probable cause. If probable cause is established, they take their case to a judge. The judge can then issue the officers a warrant to perform a search and seizure of property or persons.
Warrants will specify what is to be searched and what officers are looking to seize in order to build their case. It is important to request and read a warrant before any attempt by law enforcement to enter the curtilage of your property in order to conduct a search and seizure. The curtilage of your home is the area of land surrounding your house forming one enclosure.
If the warrant is present officers may begin their search. They should be looking for these items in places that are specified on the warrant.
Officers should not be looking in places where an item on the warrant couldn’t feasibly be hidden.
4th Amendment Precedent
One of the more recent landmark cases dealing with the 4th Amendment is Safford Unified School District v. Redding. This case deemed that the severity of the search should match the severity of the item being searched for. Since the drugs Savana Redding had didn’t present any danger to the students at school, it was unnecessary to extend the search to her underwear.
The search violated her 4th amendment rights. Furthermore, the search of her underwear was deemed unnecessary by the Supreme Court on June 25th, 2009. Their reasoning for the decision was that the content of the suspicion did not match the degree of the intrusion.
How Does the 4th Amendment Apply with Cannabis?
The legalization of cannabis has added confusion to the 4th amendment. Some say that smell is not probable cause, but in fact it is. Authorities may use the smell of cannabis to establish probable cause.
It is best to not smoke in vehicles. When traveling with cannabis, make sure it is in a locked container and stored in the back of your vehicle. As more and more states legalize cannabis and the push for federal decriminalization strengthens, there will be more laws in place to protect the rights of cannabis consumers.
Using the 4th Amendment as a Cannabis-Related Defense
Using the 4th Amendment as a cannabis related defense is just like any other 4th amendment defense. Most defenses that use the 4th amendment as argument are making the case for suppression of evidence based on the incorrect gathering of evidence. This is how a 4th amendment violation defense would look.
How to Protect Your 4th Amendment Rights
The best way to protect your 4th Amendment rights when it comes to cannabis is to be proactive. Don’t smoke in your car. Use smell proof containers so traffic stops don’t become an issue. Always do your best to make sure you can’t smell your weed. You can still get a DUI for cannabis consumption. You don’t want to give officers a reason to mess with you and your 4th Amendment rights.
Never let officers enter your home with out a warrant. It is always best to be polite yet firm when declining an officer warrant-less entry to your home. Always assert your rights as a citizen of this country. Do not let the idea of inconvenience stop you from exercising your 4th Amendment rights.