The First Amendment limits the government from making any law “abridging the freeing of speech…or the right of the people peaceably to assemble.” But law enforcement have cited all sorts of laws when arresting the folks on the ground at Occupy. We’ve all heard of folks getting arrested for trespassing [Penal Code § 602], unlawful camping, the catchall “crime” of disturbing the peace [Penal Code § 415]. But how is the government allowed to arrest us for doing these things when we’re Constitutionally allowed to assemble and talk politics, so long as we’re being peaceful?
Despite the mandatory language of the First Amendment, the government actually is allowed to abridge (i.e. limit) speech to some extent and just how much they can limit it actually depends on where you speak to some extent. That means you can say one thing in one place that you may not be able to say in another place. And that makes sense to some degree, right? We can say a lot of things in our homes that we’d never say in public. Similarly, the government is authorized to limit our ability to speak freely about politics depending on where we are.
So in these public parks and sidewalks where the Occupy movement is largely being played out, the law says a restriction on our right to talk about politics must be 1) a reasonable restriction on the “time, place, and manner” of our speech and 2) the law cannot restrict only the political speech (meaning the law cant be based on the content of our speech, i.e. restricting political, but not other types of, speech). The law also 3) cant be vague or too broad and 4) the government cant have unfettered discretion in such restrictions (meaning the local police chief cant choose who gets to stay and who has to go willie nille since that gives them too much power).
Imagine, then, that you’re camping out with your friends in Justin Herman Plaza (hoped to soon be called Bradley Manning Plaza) in San Fran with the other Occupiers and the cops pull you out of your tent at 4 a.m., telling you to 1) leave or 2) get arrested. Simply put, your options then are to either 1) leave or 2) get arrested. Its difficult in the heat of the moment to get a copy of the law that they’re threatening to arrest you on, determine if its unconstitutional, and then convince the cop that it is so. So what they say is going to happen at that point probably will.
Do These Arrests Really End the Action?
The ideological quandary there then becomes simply how far you’re willing to take it; are you willing to go to jail and fight your arrest in court, often a long drawn out process reminiscent in some ways of gambling, though here the gamble is with your criminal history with perhaps devastating financial, professional, familial or societal repercussions? Well that’s up to you, as that’s a highly individual decision left to each protestor.
However, the constitutionality of many of the laws Occupiers could be arrested or prosecuted for has yet to be determined and how do we test these laws without being arrested for it, fighting it in court, and possibly appealing it? Indeed, the arrest and prosecution may be an inherent part of the struggle to get the underlying message out. Can and will cops continue to arrest the 99 based on unconstitutional laws drafted and enforced by the 1? Frighteningly, the answer is yes… unless WE SAY NO. Simple right? We all know the 1% aren’t going to stop until someone stops them (you’ve heard of the quote “absolute power corrupts absolutely”).
But if your decision is to change the law by getting arrested, make sure to get a lawyer who wants to fight it with you and not one who will advise you to take a plea without pressing for your (and our) rights. The entire process is rendered moot by getting arrested and then pleading out to a violation in court when folks get scared with the formality of the courtroom, just like the process is rendered moot when we ask for change and then run scared at the first sight of the fuzz.
So, while it would be nice if the government didn’t suppress our rights in the first place, they do and that’s a big reason why we’re protesting at all right? The arrest, prosecution, and appeal process can actually help define the law for our society and for future protests. We all know of many examples of how our society has changed for the better by the oppressed saying NO to the oppressive regime. Thus, those arrestees who press on to fight their cases on ideological grounds are to be commended and honored as revolutionaries, and are critically necessary to a free and evolving society.
These mass arrests of the Occupiers aren’t the end of their protest then. On the contrary, if you want it to be, its just the beginning.
“Jailer, jailer, throw away the key…. For my cage is better than your cage.” - Wow. True that. -hb
Here’s the run down:
You and I have a Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement. Our forefathers thought this was important because the British government could enter anyone’s house to search & arrest them, without any cause whatsoever. Just because some snooty constable didn’t like they way a guy dressed, the government could issue “general warrants.” Well our early government thought that was wrong and thankfully drafted the Fourth Amendment.
This Amendment limits the power of the federal (and now state) governments from searching your house or arresting (a.k.a. seizing) you or your stuff unless they have a warrant supported by probable cause. Probable cause to search is generally found where a reasonable person would believe, based on all circumstances known to the officer at the time, that a certain place contains evidence of a crime. But don’t be fooled by how easily probable cause can be defined here, because its a difficult concept for lawyers and judges alike.
In a case where there was probable cause to believe a car contained evidence of a crime, such as where an officer personally observed a driver chugging a bottle of tequila while on the freeway, the officer could certainly get a search warrant for that car. That seems fair, right? But cars move, which means that, by the time an officer got a warrant, the tequila chugging driver would be long gone, probably passed out on his couch at home watching the Chargers lose. So some judges realized that cars are too “readily mobile” to require search warrants and the judges allowed law enforcement to search a car without a warrant whenever they have probable cause to believe the car will contain evidence of a crime (like empty tequila bottles, etc.).
So, again, where cars are involved, cops don’t need a warrant to search anywhere in a car they claim evidence of a crime might be (including your trunk or a locked briefcase). We all have a reduced privacy interest in our vehicle precisely because we can use them to escape. (Though you’d all know that I can’t get away too fast if you’ve seen my old Rav4, but that’s beside the point.)
Of course, the automobile exception isn’t the only way to get into your car. They can search your car if they’ve already arrested you or if they are going to impound it, since its now inventory. However, here we’re assuming a scenario of one sober man with fresh, unburned cannabis in his car, so I’ll leave a discussion of these other exceptions for another scenario.
So, you’re driving down the road and you get pulled over because you have a taillight out and you have some cannabis in the car with you. The officer walks up to you and asks for your ID and registration, which you politely hand him through the slightly rolled down window. He or she leans in to grab your documents and says, “do you have any marijuana in there.” Knowing that you do and that it’s the sticky icky icky icky, so you know it reeks, you reply “Yes. But I have a recommendation!”
The cop may check your recommendation or they may not. At this point, its almost irrelevant in their mind. All they’re thinking is “yes! I smelled it, so I can get in here!” And then they may pull you out and start searching, though they may let you go if you have (1) your medical recommendation documents, (2) they only find a small amount of cannabis (generally under 3 pounds in Sonoma County), and (3) there is no other evidence of sales (like your own incriminating statements/a scale/pay-owe notes/large amounts of cash) or (4) of driving under the influence (again, your incriminating statements/joints in the ashtray/smell of burning marijuana). If they find other bad evidence, or if they just feel like it, they can and probably will arrest you.
Whether they arrest you or not, your constitutional right to be free from unreasonable searches and seizures was just violated. How, you ask? Well, the prosecution often relies on a case called Strasburg (incidentally arising in our neighboring county of Napa) to say that odor of marijuana is probable cause to search a car. But that case didn’t really say that at all. What it actually said was that probable cause was present to search that car in that situation, which presumes that there will be situations when the smell of cannabis alone does not give probable cause. In Strasburg, the cop saw a suspect smoking a joint in the driver’s seat of a car. Also, when he asked the kid about the marijuana smell, the kid handed the cop a bag of marijuana but the cop could clearly see a second bag of marijuana in the car.
So the court in Strasburg relied on two factors to support a finding of probable cause there; first, the kid was obviously smoking in the driver’s seat. And what do driver’s do? They drive. That raised the reasonable inference that the kid was going to drive while impaired from smoking. The second ground was that the cop saw 2 bags of cannabis, though the suspect only handed him one. Well back in the good ol’ days of 2007, our Legislature had enacted these weight limits on how much weight of cannabis a qualified patient (i.e. someone with a valid recommendation for the therapeutic use of cannabis) could legally possess. Just last year in 2010, though, our state Supreme Court said that the state and various counties couldn’t really impose those strict weight limits where someone was over the limit, though they still provided a safe harbor from prosecution where patients were under their county limits.
Anyhoo, what this means is that there is no law that says the smell of marijuana alone is sufficient to search your car after you’ve given the officer your valid recommendation, though they’re going to go ahead and do it. However, in the Strasburg case, the officer reasonably thought the guy may drive after smoking. Thus if the officer in your case has no cause to believe that you are smoking and driving, then he has less factors to rely on to get into your car. Also, since the defendant in Strasburg gave the cop one bag, but had another bag of cannabis showing in plain sight in his car, then the cop had reason to believe that the guy was over the 8 ounce limit in effect at that time in Napa. Thus, if the officer in your case has no cause to believe you have more cannabis that is reasonable, then he again has less factors to rely on to get into your car.
In Massachusetts, their high court recently held that smell was insuffient to grant probable cause to search a medical cannabis patient’s car and, even in California, a case came out just last month saying smell of cannabis was not sufficient to give probable cause to do a warrantless search of a package. That means there’s hope in the near future to change this ridiculously abused standard.
Also, if marijuana becomes legalized to some extent, rather than what we have now (which is mere decriminalization of a still illegal substance for certain people), then probable cause based on odor will further be eroded. Just think of how many cops lie about smelling cannabis and get into someone’s car, home, etc! It’s a racket, particularly in places like Northern California where cannabis use and transportation has proliferated since its decriminalization. So a cop could claim to smell herb and, even if he was lying, he’d have a pretty good chance at finding some.
What this all means for us is that, although cops shouldn’t be searching through our cars without the smell of burnt marijuana, or some factor to believe you’re driving is impaired, or some reason to believe that your cannabis possession is somehow unlawful, they’re still going to do it. So be kind to the officer, but be smart and shut the heck up.
You also have a Fifth Amendment right to keep quiet and you shouldn’t be afraid to use it. Then, get a good attorney and work together with that attorney to build your defense where they can present all the arguments to a judge, whose job it is to decide ultimately what was reasonable. But, if your attorney says, “smell is enough, so forget that defense,” they’re technically wrong. And when that technical mistake costs you (what I believe to be) your greatest and most precious right, your Fourth Amendment right, its time to get a new lawyer.
The venerated tenet rings particularly true here, “don’t mistake my kindness for weakness.” A soft tone and warm handshake doesn’t necessarily indicate a weak heart and this truth will be revealed where it matters most, cross examination of the fuzz. Even with law enforcement though, why be mean except in the rare case where there is a strategic gain that translates directly into a tangible benefit for my client? I prefer to think of humility as a grounding in the earth, a power not even cognizable by the fuzz, and thus a power they are unable to tap into. This grounding assists me in never losing focus on the ultimate issue, the persecution of cannabis users, free thinkers, the untamed, etc. by an overzealous police state deathly afraid of losing the workforce to enlightenment, aka free critical thought.
Actually, a concrete example of humility in practice is based on the judge who I wrote about in my last post. I was so disenchanted with the judiciary because of what I perceived as her refusal to THINK. However my colleague decided, instead of feeling anger towards her, that we try to educate her with kindness and in humility. It was difficult to retrain my neural pathways towards humility there because I was so frustrated with the injustice, but doing so was the ethical and most beneficial course of action. And now we forge on with a new goal that will hopefully benefit our next client, despite the heartbreak knowing our last client fell victim to the machine.
Humility is the strongest dedication to truth, so much so that my own wants and desires are entirely negated. I become the public consciousness, a single vapor in the ultimate song of freedom. My desire to fight executive interference in our community is no longer about me. It is about us, the community, the collective. The WE. Thus my fight is OUR fight and that’s where the real powers lies.
Humility IS power.