10 Things You Should Know During a Traffic Stop
A recent article is circulating regarding 10 things one should know during a traffic stop. While some of the information is true, a few pieces are both confusing and untrue.
1) You have the right to remain silent, but upon request should produce your correct name, address, driver’s license & insurance.
2) If an officer has reasonable suspicion or probable cause a crime is or will be committed he/she can ask you to step out of the vehicle.
3) You have the right to ask the officer, why you are being ordered out of the vehicle, but he does not have to answer or give you a reason.
4) You can ask if you are free to leave. If the officer says yes, you may leave. If the officer says no, consider yourself detained for further investigation. Remember your right to remain silent.
5) You can ask if you are under arrest. If the officer says no, ask if you may leave. If the officer says you are under arrest, do not resist. Remember your right to remain silent.
7) You have the right to disagree with the officer, but your right does not extend to being physical with the officer.
8) You have the right to record, and in most instances are being recorded by the police vehicle’s dash camera.
9) You CAN absolutely refuse permission to search your vehicle.
10) Understand less is more. The officer may not have reasonable suspicion to detain or probable cause to arrest you. Don’t provide it by thinking you can talk your way out of the situation.
The truth behind the odor of marijuana
For years Texas courts, under the mistaken belief police officers possess superhuman–like senses of smell, have permitted invasive search and seizures based on the odor of marijuana alone. This low threshold has morphed into a catch-all phrase for vehicular searches and subsequent drug arrests. This is particularly troublesome when you read statements like the one given by
Peter Keane, a former San Francisco Police commissioner, in an article for the San Francisco Chronicle, titled “Why Cops Lie”:
Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.
Find a marijuana case and you will find a police report citing the odor of marijuana as the basis for probable cause. Find a cocaine case and you will find a police report citing the odor of marijuana as the basis for probable cause. This is despite any cannabis being found. This catch-all phrase for probable cause is not only subjective, but unverifiable without any reliable standardized training.
Walk into a medicinal marijuana shop and you will find jars full of marijuana. There is the Tahoe-OG that provides a syrupy smell and taste. There is Bubblegum Kush, that tastes and smells as the name suggests. There is the Blueberry strain and the Vanilla strain. The point is the odor of marijuana can take on many different scents.
The make-up of marijuana consists of different cannabinoids, flavonoids, and terpenoids. How much of each varies. The nearly 200 different types of Terpenoids or Terpenes give marijuana its smell. These terpenoids can be found in our everyday fruits, vegetables, herbs, spices, and hops.
Terpenes | Aroma | Also Found In |
Alpha-Pinene | Pine | Pine Needles, Rosemary, Basil, Mosley, Dill |
Myrcene | Earth, Herbal, Citrus | Mango, Lemongrass, Thyme, Hops |
Limonene | Citrus | Fruit Rinds, Rosemary, Juniper |
Caryophyllene | Pepper | Black Pepper |
Linalool | Floral | Lavender |
The fact marijuana may smell similar to many of your kitchen spices, a pack of bubblegum, or a pine tree isn’t the only issue. The actual ability to smell marijuana from a vehicle was called into question by a peer-reviewed journal article, entitled “Marijuana Odor Perception: Studies Modeled From Probable Cause Cases”, published in the Law and Human Behavior (Vol. 28, No. 2, April 2004). Based on two different studies this article wrote, “… a blanket acceptance of testimony based upon reported detection of odors for probable cause is questionable…”. In the first of two studies, researchers recreated a situation where, during a normal traffic stop, an officer would say he detects the odor of packaged marijuana, located in the trunk of a car. The study discovered that individuals in this officer’s position were unable to accurately detect marijuana odor. In fact, the presence of marijuana was incorrectly identified 90% of the time.
Fortunately, there have been steps made in the right direction. Recent case law in Texas declared the odor of marijuana alone insufficient probable cause for searching a home. Other states have revisited the olfactory questions as it relates to marijuana in a vehicle. Massachusetts, for example, held due to the medicinal stature, the smell of marijuana is ‘no longer indicative of criminal activity’ and therefore no longer justifies probable cause. With the recent passage in Texas allowing the limited use of medicinal marijuana, searches and arrests based on the odor of marijuana are ripe for challenge.
As history continues to be made and states across the nation set out to enact some form of marijuana legislation, the requirement for probable cause needs to keep pace.
Next time you are in your kitchen, open up a bottle of oregano, give it a smell, and you will understand.
Breaking Chains
In the event you are arrested…
There is more than one way to refuse a breath test.
Probe into ‘Enjoy your ride’ sign on police van
http://www.cnn.com/2015/07/03/us/baltimore-police-van-sign/index.html
Come back with a warrant doormat
Send a message right out of the gate.
84th Texas Legislative Session – Criminal Justice
The 84th Texas Legislative Session just ended. Below are both passed and denied bills related to criminal justice.
Belief will be passed:
- ending the “pick-a-pal” grand jury system;
- Why it matters: In light of fierce national debate over the diversity of jurors, this law allows for random selection of grand jurors as opposed to the judge asking an acquaintance to come up with a list of individuals. Texas is the last state to switch from the so-called “key-man” or “pick-a-pal” system.
- scaling back the use of state youth prisons;
- Why it matters: this law provides alternative family-centric provisions to incarcerated juveniles. The focus is on rehabilitation.
- adjusting property theft thresholds for inflation:
- Why it matters: Theft punishment ranges are determined by property value. The problem was the difference in being charged with a misdemeanor or a felony had not been adjusted since 1993. A $30 item in 1993 would have been a class C misdemeanor. That same item in 2015, would be $50, or a class B misdemeanor.
- expunctions for lesser offenses: Note: this bill was vetoed by the governor.
- Why it matters: If you were arrested for example, for DWI and plead guilty to obstruction of a highway, you can now have the DWI expunged or erased.
- reduction of state jail felony to class A misdemeanor: Note: this bill was vetoed by the governor.
- Why it matter: Under this law if you plead guilty to a state jail felony, receive community supervision and meet additional requirements you can motion the court to reduce the felony to a misdemeanor. If the judge grants the motion you will no longer have a felony conviction.
- decriminalizing truancy:
- Why it matters: Failure to Attend School (FTAS) or “truancy” was a class C misdemeanor. The focus will now shift toward truancy prevention as opposed to writing kids a bunch of tickets.
What could have been (denied or stalled):
- the good samaritan bill that would have protected people from prosecution if they call 911 to report a drug overdose;
- low risk prisoners given the alternative of home confinement as opposed to prison;
- Decriminalizing Marijuana;
- Treating 17 year olds as juveniles rather than adults;
- The “ban-the-box” bill that would have prohibited state agencies from asking about one’s criminal history on a job application;
- Asset Forfeiture upon certain arrests.