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Thursday, September 3, 2015

You Must Show Your Papers! by Daniel L. Price, Esquire

     Fall in Michigan brings some of the most breathtaking sights of the year.  Nature provides a warning of the upcoming deep freeze by displaying brilliant colors before the trees lose their foliage. If you are like many others, you might even go out of your way to spend a nice fall afternoon driving north to see this awesome display.  You get up early on a September Saturday morning.  You get the daily routine of tending your medicinal plants out of the way. Being a conscientious patient, you also hold off on medicating yourself until after you return home. Then you pack the car and think about those fall colors. 

     You get out there and are enjoying the ride and the wonderful colors, when out of nowhere a police officer pulls you over. 

     Wha, wha, what!?  Yep, he “claims” he observed you speeding.  Although, he cannot prove you were speeding, in Michigan, there is some unpublished case law to support the validity of the stop.  But, hey, you are good, right?  I mean, if the officer cannot prove you were speeding, then no worries.

     Think again, the officer then “claims” he smells marijuana!  Of course, in Michigan, an officer’s claim of the smell of marijuana is enough to give the officer probable cause to search your vehicle without first obtaining a warrant - and it does not matter that an officer cannot prove that there was a smell of marijuana.  After all, in a society allegedly built on the premise of freedom of the individual, why bother with making law enforcement provide proof of any wrongdoing before violating your rights!?!?

     In fact, you may have just pulled to the side of the road where a skunk just let out a blast of stink!  But it does not matter in the eyes of the government actors who wish only to take your freedom.  The allegations of the officer without any proof, will be enough to take your 4th Amendment rights from you.

     But what about you, a medical marijuana card holder (“LARA ID”)?  I mean, safe to say you smell like marijuana because you were tending your buds.  Not only this, but you showed you LARA ID and explained this to the officer before he searches.  Does this ability to conduct a warrantless search still apply? 

     The appellate courts have ruled that officers do not have to check to see if you have a LARA ID card before they execute a warrantless search.  But let’s say the officer verified that your LARA ID is valid.  Can the officer still execute a warrantless search of your vehicle, when you refuse to allow a search?  To my knowledge, the appellate courts in Michigan have not yet made a decision on this issue.

     Still, I think that the answer is that so long as you show your LARA ID to the officer, he must then verify that it is valid.  And if it is valid, then what crime does the officer believe you committed in order to have probable cause to search your vehicle?  After all, at this point the officer knows you are immune from arrest, prosecution, or other penalties. 

     Well, this should prevent the officer from having probable cause to get a warrant.  As a result, the officer then should not conduct a warrantless search of your vehicle. 

     So what’s the point in showing your LARA ID if the law is not yet decided and the officer is just going to search your vehicle without any proof of a crime anyway?  The practical answer is that if you do not show your card, then the officer can search your vehicle, period, and you will have no defense if you are charged with a crime.  On the other hand if you show your LARA ID, then at least you have an argument to defend yourself if you are charged with something.   And isn’t simply showing your card in an attempt to assert your rights worth it in the fight against those who wish to take your rights from you?

     Sadly, we live in a society in which government actors are constantly trying to rob us of our rights.  Moreover, many of those same persons look to you as less than human because you use marijuana, and therefore they may feel it is perfectly fine to violate your rights.  And if you fail to assert your rights, then you cannot claim to have any rights.  This is why I always say, it is very important to always keep in mind that if you do not assert your right to self-determination, it will eventually be destroyed by those who seek to deny you your freedom!  On the issue of warrantless searches based on the smell of marijuana, asserting your rights can be done by simply showing your LARA ID, and then defending those rights in court. 

Till next month, as always, keep rolling on.

Disclaimer:  This is an informational article only.  It is not to provide individual legal advice.  If you need legal services, feel free to contact me, or any attorney of your choosing.

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