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ENCOUNTERS WITH POLICE
THE UNITED STATES SUPREME COURT, as well as all the state courts, have held that the reasonableness and hence the legality of an encounter between a police officer and a citizen must be judged by examining all the circumstances surrounding the encounter. Generally speaking, all encounters with police officers can be placed in one of three categories: (l) contact, (2) detention, or (3) arrest. Your legal rights during an encounter with a police officer will depend on how the encounter is categorized by a court.

Contact
The first level of many encounters with police is known as a "contact." A contact occurs when a police officer attempts to engage you in conversation. For example, if an officer asks you for directions, or asks you if you saw something or someone, he is merely "contacting" you. The essential characteristic of a contact is that you remain free to leave at all times. Because you are always free to leave, a contact is not considered a seizure. Since it is not a seizure, and obviously is not a search, the Fourth Amendment does not apply; therefore a police officer is free to contact a person for any reason. He does not need even a reasonable suspicion that the person is engaged in criminal activity.
During a contact with a police officer, you are free to behave as you would with any other citizen. You need not identify yourself. You may answer the officer's questions or ignore him and walk away. The United States Supreme Court has made this very clear, stating:
Law-enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in some other public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering as evidence in a criminal prosecution his voluntary answers to such questions. . . . The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the into a seizure within the meaning of the Fourth Amendment. However, officers requesting a suspect to accompany them to another location should document that the citizen had a genuine choice and voluntarily agreed to the movement.
(6) Demeanor and Appearance of Officer
An officer's use of coercive or intimidating language or tone of voice may be interpreted by a reasonable person as compelling compliance. A uniformed officer repeatedly flashing a badge is intimidating conduct. Requests for a consent to search should be conveyed in a manner that makes it clear that the citizen has a choice and that compliance is not required or compelled. Advising suspects that they are suspected of transporting drugs is another factor courts assess in determining the coercive effect of police conduct. Since uncommunicated suspicions generally have no bearing on whether a particular encounter is consensual or a seizure, officers should consider delaying or avoiding the expression of such suspicions until a seizure is justified.
(7) Retention of Citizen's Personal Property
Although officers may request to examine a person's identification or tickets and ask questions about any discrepancies, such items should be promptly returned. The prolonged detention of personal items can transform a consensual contact into a detention.
There are strict rules governing the circumstances under which a police officer can legally detain a person. The courts have universally held that, with a few clear exceptions, an officer can detain a person only if he has a "reasonable suspicion" that the person is involved in criminal activity.

The legal definition of "reasonable suspicion" is ever-changing. The important thing to understand is that the reasonable suspicion standard is lower than what's termed "probable cause." In other words, it is quite possible that a police officer will have reasonable suspicion (sufficient to detain a person), but still not have probable cause to believe a person is engaging in criminal activity (needed to arrest the person). In fact, an officer's sole purpose in detaining a person is often to try to get enough additional evidence to establish the probable cause required to arrest the person.
Reasonable suspicion exists if an officer can point to some specific facts that, taken together, made it reasonable for him, with all his training and experience, to suspect that the person he detained was involved in some illegal activity. In other words, an officer's mere "hunch" is nor sufficient to detain a person. Rather, the officer must be able to articulate the reasons underlying his suspicion, and the court must agree that his suspicion was reasonable.

Into a seizure within the meaning of the Fourth Amendment. However, officers requesting a suspect to accompany them to another location should document that the citizen had a genuine choice and voluntarily agreed to the movement.
(6) Demeanor and Appearance of Officer
An officer's use of coercive or intimidating language or tone of voice may be interpreted by a reasonable person as compelling compliance. A uniformed officer repeatedly flashing a badge is intimidating conduct. Requests for a consent to search should be conveyed in a manner that makes it clear that the citizen has a choice and that compliance is not required or compelled. Advising suspects that they are suspected of transporting drugs is another factor courts assess in determining the coercive effect of police conduct. Since uncommunicated suspicions generally have no bearing on whether a particular encounter is consensual or a seizure, officers should consider delaying or avoiding the expression of such suspicions until a seizure is justified.
(7) Retention of Citizen's Personal Property
Although officers may request to examine a person's identification or tickets and ask questions about any discrepancies, such items should be promptly returned. The prolonged detention of personal items can transform a consensual contact into a detention.
There are strict rules governing the circumstances under which a police officer can legally detain a person. The courts have universally held that, with a few clear exceptions, an officer can detain a person only if he has a "reasonable suspicion" that the person is involved in criminal activity.
The legal definition of "reasonable suspicion" is ever-changing. The important thing to understand is that the reasonable suspicion standard is lower than what's termed "probable cause." In other words, it is quite possible that a police officer will have reasonable suspicion (sufficient to detain a person), but still not have probable cause to believe a person is engaging in criminal activity (needed to arrest the person). In fact, an officer's sole purpose in detaining a person is often to try to get enough additional evidence to establish the probable cause required to arrest the person.
Reasonable suspicion exists if an officer can point to some specific/acts that, taken together, made it reasonable for him, with all his training and experience, to suspect that the person he detained was involved in some illegal activity. In other words, an officer's mere "hunch" is not sufficient to detain a person. Rather, the officer must be able to articulate the reasons underlying his suspicion, and the court must agree that his suspicion was reasonable.

The Supreme Court has explained that the purpose of a detention must be limited to conducting an investigation to find out if there is probable cause to arrest the person detained. Therefore, an officer is allowed to detain a person only for the length of time reasonably needed to confirm or dispel his suspicion. If a court finds that an officer detained a person for an unduly long period of time, the court will apply the exclusionary rule to any evidence that the officer found after he exceeded the reasonable time needed to conduct his investigation.

In almost all cases, it is a series of facts which, when viewed in combination, add up to a reasonable suspicion that a person is engaged in a marijuana crime. For example, in almost every state, smoking a hand-rolled cigarette is not, by itself, sufficient reason for an officer's detention of the smoker. However, when the officer states that he also smelled the odor of burning marijuana, or that the suspect seemed extremely nervous at the officer's approach, the totality of the factors may give rise to a reasonable suspicion of criminal activity (and maybe even probable cause sufficient to arrest), thereby allowing the officer to detain the person to investigate further. Similarly, most courts hold that the fact that a person runs when he sees the police is not, by itself, grounds to detain that person. However, when evasive conduct is coupled with other factors such as a "high-crime area" or an officer's observation of other suspicious actions, many courts will permit the officer to detain the person. Note, however, that if flight occurs after an officer has formed a reasonable suspicion to detain a person and has ordered the person to stop, the attempt to escape automatically transforms the reasonable suspicion into probable cause, and hence the officer can arrest the person.

Detaining Your Belongings
Not only can police detain you if they have a reasonable suspicion you are violating a marijuana law, they can also detain your belongings if they have a reasonable suspicion that they contain marijuana. Again, a common example occurs in airports when police stop and detain a person because they believe that his luggage may contain marijuana. In such a situation, the police can detain the luggage only for the reasonable time necessary to conduct their investigation. They cannot open the luggage without a search warrant or without the person's consent; therefore they must either quickly obtain a search warrant or release the luggage back to the person. Often in such a situation they will have a marijuana-detecting dog sniff the luggage, and return it to the owner if no drug is detected. If marijuana is detected. By the dog, then the officer will arrest the person immediately and obtain a search warrant to open the luggage.

In one recent federal case in Colorado, the security police at Lowery Air Force Base received a telephone call in which the caller said he smelled marijuana while he was working in a particular building. An officer was dispatched to investigate. Inside the building, the officer smelled no marijuana and observed nothing out of the ordinary. The only people inside the building were two janitors.

Despite the lack of any reasonable suspicion that the men where involved in criminal activity, the officer told both men to "stand by" while him radioed for additional help. Three additional security police arrived with a narcotics dog. The additional officers smelled nothing, but ordered the dog to begin searching the area. The dog alerted to a coat lying inside an office. The officers asked the janitors if the coat belonged to one of them, and one janitor answered affirmatively. According to the janitor, the officer then ordered him to pull out whatever was inside the jacket, whereupon the janitor removed a small bag of marijuana from the coat.

The court excluded the marijuana after determining that the janitors had been unlawfully detained when the first officer told them to "stand by." The order to stand by was a detention because the men were not free to leave. The detention was unlawful because at the time the janitors were told to stand by there was absolutely no indication of wrongdoing. Moreover, when the first officer detained the men, he effectively also detained their property (the coat.) Since the janitor was not free to leave, he was obviously unable to remove his coat from the office. Since at the time the coat was effectively detained (which was prior to the dog sniff), there was no reason to suspect that it contained marijuana, the detention of the coat was also declared unlawful. The court held, therefore, that almost every action by the officer was unconstitutional. The proper remedy was to declare the unlawfully seized marijuana inadmissible evidence which meant that the case against the man had to be dismissed for lack of evidence.
In an aside, the court also noted that even had the detention of the coat been lawful, the order to remove the marijuana from inside the coat constituted an unlawful warrant less search. When a dog alerts to luggage or other property that might conceal marijuana, the constitutional procedure is for the officers to obtain a search warrant. (US.v. Lumba [D.Colo. 1993] 825 F.Supp. 263.)

Demanding to See Your Identification
If an officer legally detains you, most courts now permit the officer to demand to see proof of your identification. In such situations, it's usually best to politely provide the officer with your ID. Nothing is gained by attempting to conceal your identification once you have been legally detained. Similarly, it is not prudent to give a police officer a fake name once you have been lawfully detained or arrested. When a false name is given, the police almost always quickly discover that the person is lying and the person can then be charged with the additional crime of giving false information to a police officer. Furthermore, the person's evasiveness can later be used against him to show his consciousness of guilt. (See Chapter 1 on the "knowledge" element that must be proven to convict a person of possessing marijuana.) Remember, however, during a contact you do not have o identify yourself.

Frisks or Pat-Searches
fa police officer legally detains a person, the officer may have a right to "frisk" >r "pat-search" the person. (The two terms are synonymous.) A frisk is intended to protect the officer or the public, so an officer can conduct a frisk or pat-search only if he reasonably fears for his safety or the safety of others.

A frisk is therefore a limited search for the sole purpose of detecting a concealed weapon. When conducting a frisk, an officer can pat or feel only the midside of a person's clothing. The officer can reach inside a pocket only if he detects a hard object that he reasonably believes could be used as a weapon. The courts of every state have held that practically any hard object justifies the officer in reaching inside the person's pocket to find out if the object is really a weapon.

Courts will uphold a police officer's frisk whenever the officer can state specific facts that led him to reasonably believe the person was a threat and might possess a weapon. The Supreme Court has instructed that courts should find an officer's frisk illegal if the officer was really looking for drugs rather than weapons. Similarly, courts should find a frisk illegal if an officer went beyond the permissible scope of a frisk and removed soft objects or searched inside pockets without first detecting a hard object from the outside.
It is important to understand that if an officer, while conducting a frisk, feels a hard object that he believes to be a weapon, he can remove that object. If he happens to also feel something else in that pocket (such as a joint or baggie of marijuana), he can "accidentally" pull that item out as well. In fact, such "mistakes" are quite common, and the resulting incriminating evidence is often admissible.

For example, in one case, an officer in the Los Angeles Police Department stopped Larry Atmore because Larry allegedly met the description of a murder suspect. When the officer pat-searched Larry, he felt a round cylindrical object in Larry' s jacket pocket. The officer had information that the murder suspect used a shotgun in the murder, and suspected that the cylindrical object was a shotgun shell.

For that reason, the officer reached inside Larry’s jacket pocket and removed the object, which, in fact, turned out to be a lipstick case. However, as the officer removed the lipstick case,' he also removed a joint that was in the same pocket. Although Larry was cleared as the murder suspect, he was subsequently convicted of possessing marijuana.
The court held that the officer's removal of the joint was legal because it occurred innocently and in conjunction with his removal of what he believed was a shotgun shell. The court stated, "There is no compelling evidence that [the officer] consciously seized the cigarette. A legitimate implication from the record is that his hand emerged with more than he intended to remove from the pocket.

For example, in one case, an officer in the Los Angeles Police Department stopped Larry Atmore because Larry allegedly met the description of a murder suspect. When the officer pat-searched Larry, he felt a round cylindrical object in Larry's jacket pocket. The officer had information that the murder suspect used a shotgun in the murder, and suspected that the cylindrical object was a shotgun shell.

For that reason, the officer reached inside Larry’s jacket pocket and removed the object, which, in fact, turned out to be a lipstick case. However, as the officer removed the lipstick case, he also removed a joint that was in the same pocket. Although Larry was cleared as the murder suspect, he was subsequently convicted of possessing marijuana.
The court held that the officer's removal of the joint was legal because it occurred innocently and in conjunction with his removal of what he believed was a shotgun shell. The court stated, "There is no compelling evidence that [the officer] consciously seized the cigarette. A legitimate implication from the record is that his hand emerged with more than he intended to remove from the pocket.

We have all done the same thing when fumbling for keys or coins. There is nothing sinister about it. Once the cigarette was in plain sight, the officer did not have to ignore it."

The court found that the shotgun shell that the officer suspected to be in Larry's pocket would have legitimately been considered a weapon. The court reasoned that if the object had been a shotgun shell as the officer believed, Larry could have used it as a miniature bomb! In the court's words, "the officer could reasonably believe that any sharp object could be used as a detonator. He had not eliminated the possibility that [Larry] might be the person who was sought for murder and who, if caught, could face the death penalty. If he was the murder suspect, he might want to explode the shell even in a way that might entail considerable personal risk to him, so long as he might escape in the ensuing confusion." Clearly, the lesson to be learned from Larry Atmore's misfortune is that it is not prudent to carry marijuana in the same pocket with a weapon or even a hard container.

Additionally, it sometimes happens that an officer who legally conducts a pat-search for weapons feels an object which, based on his experience and training, he believes to be marijuana or some other illegal drug. For example, in one case, Lee was legally stopped by an officer who suspected that he might be carrying a concealed weapon. As the officer pat-searched Lee, he felt a soft object that made a rustling and crumpling sound when pressed. Although the officer knew it was not a weapon, he suspected it was a baggie of marijuana. The officer reached into Lee's pocket and removed a baggie containing "green vegetable matter." The lab test later confirmed that the substance was marijuana, and Lee was charged with possession.

Lee argued that the officer's removal of the baggie was illegal because the officer knew it was not a weapon before he reached inside Lee's pocket. Therefore, Lee argued, the officer had exceeded the permissible scope of a legal pat-search for weapons and the illegally seized marijuana should therefore be excluded from evidence.

At the hearing on this issue, the officer testified that he was a 19-year veteran of the police force, and had received approximately 40 hours of education on identifying drugs, including marijuana. The officer stated that during his 19 years, he had arrested over 500 people possessing marijuana. The officer concluded that given all his training and experience, he was able to deduce, just by feeling the outside of Lee's pocket, that the object inside was a baggie of marijuana.

Based on such testimony, the prosecutor argued that the officer's pat-search, while initially conducted to detect weapons, unexpectedly turned up probable cause that Lee was in possession of marijuana. This probable cause permitted the officer to reach inside Lee's pocket and seize the marijuana even though he knew it was not a weapon. The court agreed with the prosecutor's argument. Therefore, the officer's search of Lee's pocket was deemed legal on the basis that the pat-search unexpectedly produced probable cause of marijuana possession.

The United States Supreme Court has been constantly expanding the permissible scope of an officer's search for weapons after detaining a suspect. At present, the Court permits police officers not only to pat-search the outside of a suspect's clothing, but also to search the immediate area surrounding the suspect. As will be explained in Chapter 6, an officer who legally stops a person's vehicle, and reasonably believes that an occupant is dangerous, can search the car's passenger compartment for weapons. Any marijuana they come across during the search can also be seized!

Legal Detentions Without Reasonable Suspicion
As explained above, the general rule is that an officer can only detain a person if the officer has a reasonable suspicion that the person is (or was) involved in criminal activity. There are, however, a few very important exceptions to this rule which it pays to know about. If any one of these exceptions applies, an officer can automatically (without reasonable suspicion) detain a person.

You may be automatically subjected to detention by a police officer if you fall into any of the following categories:
(1) you fit a "drug-courier profile,"
(2) you are stopped at a roadblock (discussed in Chapter 6),
(3) you are crossing a border, or are subject to a border inspection (discussed in Chapter 5), or
(4) you look young, and an officer reasonably believes you are a juvenile who is skipping school or violating a curfew.

The Drug-Courier Profile
In the early 1970's, the Drug Enforcement Administration developed what is referred to as the "drug-courier profile." This set of characteristics was derived from statistical information gained from numerous arrests of peoples attempting to transport illegal drugs. The courts have held that, for all practical purposes, resemblance to the DEA's drug courier profile is sufficient in and of itself to constitute reasonable suspicion of criminal activity, thereby providing grounds for an experienced officer to legally detain a person. (Of course, the courts have been very careful about the phrasing of this rule, noting that each case must be judged on its own merits.) In other words, if your appearance and behavior fit the drug-courier profile an officer has a free shot at legally detaining you.

When law enforcement agents spot a person meeting the profile characteristics, they will usually approach the person and try to engage him or her in conversation. As mentioned earlier, the courts have held that police can "contact" a person in public anytime and for any reason. During such an encounter, the agents are trained to ask a few questions without displaying force or otherwise implying that the person is not free to terminate the encounter and walk away.

A contact of this kind will escalate into a detention if the person fitting the profile does anything that the officer thinks is suspicious. In many cases, the officer contacting the person will ask if he can look in the person's luggage, hoping the person will foolishly consent to such a search.

Obviously, it is important for anyone desiring full protection against detentions by law-enforcement personnel to avoid resemblance to the profile. However the DBA has attempted to keep secret specifics of the profile. Fortunately, numerous cases have been litigated, and from the resulting court opinions one can deduce just what it is that the agents look for.

A careful analysis of the cases reveals that there are seven primary characteristics to the drug-carrier profile, and four secondary characteristics. The seven primary characteristics are:
(1) arrival from or departure to an identifiable source city for drugs
(2) carrying little or no luggage, or carrying several empty suitcases
(3) having an unusual itinerary, such as a quick return after a lengthy airplane trip
(4) use of an alias
(5) carrying unusually large amounts of currency (thousands of dollars)
(6) purchasing airline tickets with a large amount of small bills
(7) unusual nervousness beyond that ordinarily exhibited by passengers
The four secondary characteristics of the drug-carrier profile are:
(1) using public transportation, particularly taxicabs, in departing from the airport
(2) immediately making a telephone call after deplaning
(3) leaving a false call-back telephone number with the airline
(4) excessively frequent travel to drug source and distribution cities
The profile often varies. In fact, one court in New York remarked that "the profile has a chameleon-like quality; it seems to change itself to fit the facts of each case." This same court noted, "[o]new agent candidly admitted that 'the profile in a particular case consists of anything that arouses his suspicions.'"

To make matters even more complicated, the profile changes depending on the airport or the area of the country. The specific profiles for the following airports and locations are derived from court opinions.
La Guardia Airport, New York City
(1) carrying little baggage
(2) nervousness
(3) checking to see if being followed
(4) attempting to leave the airport immediately
(5) unusual dress
(6) no tags on luggage
(7) attempts by individuals to conceal that they're traveling together
New Orleans
(1) nervousness
(2) little or no luggage
(3) large amounts of cash in small bills
(4) unusual itinerary
(5) arriving from drug-source city
(6) paying for ticket in small bills
(7) buying only a one-way ticket
(8) using an alias
(9) using a false telephone number on flight reservation
(10) placing a call immediately on arrival
Detroit Airport
(1) buying ticket with small bills
(2) travel to or from drug-source cities in short time period
(3) empty suitcases or luggage
(4) nervousness
(5) use of alias
Cleveland Airport
(1) purchase of round-trip ticket to and from drug-distribution city, with short stay between flights
(2) purchase of tickets with cash
(3) checking no luggage or empty bags
(4) use of alias
(5) suspicious or nervous behavior
While drug-courier profiles are used for justifying detentions at or near airports, in one recent case, a profile of this kind was used to justify the stopping of a vehicle and the subsequent arrest of its driver for transporting marijuana. In warrant or probable cause to believe that the person has committed a crime. (If a person is inside his home, probable cause is not enough; the officer must have an arrest warrant. If the person is inside someone else's home, the officer must have a search warrant for the host's home.) Probable cause requires that the facts of the situation would lead a reasonable person to believe that the suspect was guilty of the crime for which he was arrested. Or, in the words of the United States Supreme Court, "probable cause exists where the facts and circumstances within [the police officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." As you can see, an officer's mere suspicion that you are breaking the law, even if reasonable, is insufficient to arrest you.

The courts like to say that "probable cause is a common sense, practical question" based on the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." The test to determine whether probable cause exists is a gestalt one, based on the totality of the circumstances. "In dealing with probable cause ... we deal with probabilities ... Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact finders are permitted to do the same and so are law enforcement officials." (Illinois v. Gates [1983] 462 US. 213.)

The gestalt nature of the probable cause test often places a great deal of weight on the police officer's claimed "experience and training." This is particularly true in marijuana cases, where an officer must sometimes act on his sense of smell or his quick view of some "green vegetable matter" (as they often state in their police reports). For example, if an officer sees some seeds which he thinks might be marijuana seeds, he will seldom have probable cause to arrest the person without some corroborating factors detected by his senses of sight or smell and all brought together by his training and experience that these factors combine to make it probable that the seeds are illegal marijuana seeds. (How he could possibly know they are viable is a question to be pursued on cross-examination, perhaps with the aid of a few sterilized Cannabis seeds from some bird food.)

Whether or not an officer has probable cause to arrest a person seen in possession of a hand-rolled cigarette also turns on what additional facts or circumstances indicate that it is a joint as opposed to a tobacco cigarette. In one California case decided in 1972, the court held that an officer's viewing of a person with a hand-rolled cigarette did not, by itself, constitute probable cause to arrest the person. The court, however, explained that there were no other factors that the cigarette contained marijuana as opposed to tobacco. The court said that its decision would have been different if . . . there was evidence of other circumstances such as attempted concealment of the item, the defendant's distinctive manner of smoking it, the odor of burned marijuana, the defendant's evasiveness or abnormal physical condition, an admission by the defendant, or the arresting officer's expertise on the subject. (Thomas v. Superior Court [1972] 22 CalApp. 3d
972)

When a Police Officer's Search or Seizure Is Legal Even Though He Doesn't Have a Warrant
As a general rule, a police officer can legally conduct a warrant less search or seizure under one or more of the following circumstances:
(1) The search was conducted after a peron was lawfully arrested. (See Chapter 9.)
(2) An automobile was searched, and the officer had probable cause to believe that the vehicle contained contraband. (See Chapter 6.)
(3) The person voluntarily consented to the search.
(4) The item seized was in plain view of the officer, and its illegal nature was immediately apparent.
(5) The search was conducted at a United States border.
(6) An immediate search was necessary to preserve evidence.
(7) The person or property searched belonged to a student at a public school, and the search was performed by a school official.
As noted above, the first two exceptions are discussed in later chapters. This chapter will examine the remaining five exceptions.

Consenting to a Search
The law concerning consent is widely misunderstood among the general public, and this misunderstanding can have dire consequences. As a general rule if a person consents to a warrant less search, the search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during such a search can be used to convict the person. Simply put, if a person consents to a search, he has waived the primary protection offered by the Fourth Amendment!

Don't expect a police officer to tell you about your right not to consent. Although your consent must be voluntary in order to be valid, the courts have made clear that police officers do not have to tell people that they can refuse to consent. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid. Do not, therefore, act under the misconception that because you never "sign" anything, your consent is not valid.

Police officers are often pretty tricky about trying to get someone's consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, "Would you mind opening the trunk, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request.

It is absolutely astounding how many people get arrested only because they consent to a search and the officer finds some marijuana. Evidently these people do not understand that they have a constitutional right to refuse to consent. In most cases, without even knowing it, people relinquish a substantial portion of their Fourth-Amendment rights by consenting to an officer's request to search. You should never hesitate to assert your constitutional rights, particularly when they are all that stand between freedom and arrest on a marijuana charge.

The sad fact is that most people believe that they are under some kind of obligation to acquiesce when an officer contacts them and asks permission to search them or their belongings. The truth is the exact opposite—you have a right to associate with, and speak to, whomever you please. In this respect, there is nothing special about a police officer. Assuming you would not let a complete stranger look through your purse or search your pockets, why would you allow a police officer to do so—especially if you knew you were in possession of marijuana? Just say "no!"

For example, if Officer Martin Marietta approaches a person and asks, "Do you mind if I look in your backpack?" he is asking the person to consent to a search. His question is no different from asking, "Would you please give up your Fourth-Amendment right and allow me to look in your backpack?" If, for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my backpack and do not want you looking through them." If you're really squeamish about standing up to a police officer, keep the wallet cards in Appendix B with you and simply hand the appropriate card to an officer who asks you to waive a constitutional right. Simply present the card to the officer and say something like, "I've been told to use this if a police officer ever asks me to consent to a search."

The point, to repeat, is that whenever a police officer asks your permission to search, you are under no obligation to consent. The only reason he's asking is that he doesn't yet have enough evidence to search forcibly. By consenting you are giving up one of the most important constitutional rights you have.

Though you are almost always best served by refusing to consent to any search, you should know that if you do chose to consent, your consent need not be absolute. It is perfectly appropriate to tell a police officer that he can search one particular area, but not another. The way you phrase your consent sets the boundaries on the officer's search. Provided that the officer does not turn up probable cause while searching the area that you have consented to have searched, he must go no further than you explicitly state. If the officer starts to search beyond the bounds of your consent you must politely, but forcefully, tell him to stop—that you did not consent to a general search—and that you will now be continuing on your way unless he is lawfully detaining you.

Generally speaking, a person gains nothing by consenting to a police officer's request to conduct a warrant less search. The many court cases on the subject reveal the great danger that often accompanies the waiver of the constitutional right to remain free from such searches. Just remember, any officer who asks your permission to search is looking for evidence that he doesn't have—yet. The whole point of the search is to look for, and hopefully find, incriminating evidence! Little is to be gained and much can be lost by waiving a constitutional right.

If an officer hassles you when you refuse to consent to a search, just tell him that you have personal items and you object to his violating your constitutional right to privacy. (Or give him the card in Appendix B.) If the officer still proceeds to search you and find marijuana, your attorney can argue that the marijuana was discovered through an illegal search and hence should be thrown out of court.

How Mr. Puff Asserted His Constitutional Rights
The following story illustrates the proper use of the constitutional right to withhold consent to a warrant less search. Officer Eli Lilly stopped Mr. Puff's vehicle because his registration was expired and asked Mr. Puff, "Would you please empty the contents of your pockets?"

Mr. Puff said, "Are you asking me to empty my pockets, or are you ordering me to empty my pockets?" When Lilly said he was simply asking, Mr. Puff said, "No thanks, and I really must be going."

Mr. Puff's question to Officer Lilly was entirely appropriate. In fact, Mr. Puff's response was an effective method of turning the tables on the officer. If Lilly had told Mr. Puff that he was ordering him to empty his pockets, Mr. Puff could have properly responded, "Get a search warrant. I do not consent to your search and would like to continue on my way." If the officer had proceeded to search Mr. Puff's pockets without a warrant, Mr. Puff's lawyer could argue that the search was illegal. If Mr. Puff had consented, his lawyer would have no argument.

The Plain-View Rule
As was briefly explained earlier, a "search" occurs whenever a government agent accesses an area in which a person has a reasonable expectation of privacy. A clear
example of a "search" occurs when an officer opens someone's purse and looks inside for marijuana. In such a case, the owner of the purse clearly has a reasonable expectation of privacy regarding its contents, and hence the officer's opening of the purse is considered a "search." The next question would be whether the officer had a warrant to search the purse or whether his search fell within one of the exceptions to the warrant requirement. On the other hand, if an officer's conduct is not considered a "search," the Fourth Amendment does not apply.

For example, suppose the purse in the above example was made of a clear, see-through plastic that exposed the contents of the purse to public view. In such a case, if an officer looked through the outside of the purse and (similar to looking through a car window) saw some marijuana in the purse, the marijuana would be in plain view, and the officer would immediately have probable cause to arrest the person and search the purse. A court would hold that the officer's observation of the marijuana was not a search, since it invaded no reasonable expectation of privacy.

However, as discussed in greater detail in Chapter 7, if marijuana is seen inside a home in plain view by an officer who is outside the home, the plain-view sighting gives the officer only probable cause to believe that marijuana can be found in the home. The officer still needs either a warrant, exigent circumstances, or consent to enter the home. In contrast, if an officer sees marijuana in plain view inside an automobile, and the officer is outside the automobile, the automobile exception (see Chapter 6) allows the officer to enter the car without a warrant and immediately seize the contraband. The reason for the different rules? A person inside a home has a greater reasonable expectation to privacy than a person inside a car.

The primary limit on the plain-view rule is that the officer's view must have been legally obtained. In other words, in order for the plain-view rule to come into play, the officer must have had a legal right to be in the place from which he saw the contraband. For example, if an officer is in your home with your consent and he happens to see some marijuana on your kitchen table, a court would consider the officer legally entitled to his view of the marijuana and uphold the officer's warrant less seizure of the marijuana. In contrast, if the officer was illegally inside your home when he saw the marijuana, a court would find that although the marijuana was in plain view, the officer was not legally entitled to that view. In that case, his warrant less seizure of the marijuana would be considered illegal, and the exclusionary rule would apply.

The plain-view rule is really a matter of common sense. It’s simply the Law’s way of saying that it won't protect your privacy if you don't protect your privacy. The bottom line: always keep your private items private—out of view. There will be more examples showing the operations of the plain-view rule in the chapters to follow.

How Wayne Learned about the Plain-View Rule
Officer Philip Morris stopped Wayne's car because Wayne's brake lights were not working. The officer approached Wayne's car and asked Wayne to step out. Officer Morris then asked Wayne for his driver's license and vehicle registration. When Wayne opened his wallet to remove his driver's license, Officer Morris saw a joint in Wayne's wallet. Officer Morris immediately searched Wayne, as well as the inside of his car. Inside Wayne's glove box, the officer found more than 100 marijuana joints. Wayne was arrested and convicted.

In the above scenario, Officer Morris observed the first joint in plain view when Wayne opened his wallet. The fact that Wayne possessed even a single joint gave the officer probable cause to search the rest of Wayne's person as well as the passenger compartment of his car.

The moral of the story is obvious. First, people who smoke pot are less likely to be stopped if they keep their cars in working order. Second, those who have a special relationship with plants that the government has declared illegal would be prudent to keep preparations of those plants away from their driver's license, registration, and any other objects or areas into which they might have to reach if stopped by a police officer. You'd be surprised how many people keep marijuana on top of their sun visor right next to their car registration, never stopping to think about the problem that could ensue if they are stopped by the police.

Plain-View Paraphernalia
Not only can a police officer seize marijuana that he sees in plain view, but he can also seize any items that he has probable cause to believe are used for criminal activity. Examples of specific items that many states allow an officer to seize on sight include identifiable items of marijuana paraphernalia, such as pipes and roach clips.
Most states allow an officer to seize a pipe only if something about it indicates it is used to smoke marijuana. (For example, it's small, has a screen, has a vent, or contains marijuana residue.) Likewise, most state courts have ruled that a roach clip, by itself, is usually not seizable unless it holds the remnants of a joint or is accompanied by other signs of marijuana use.

Distinct Drug-Carrying Devices
Keeping marijuana and smoking aids out of plain view is common sense. Courts, however, have extended the plain view rule to encompass what they call "distinct drug-carrying devices." If you observed someone walking down the street carrying an electric-typewriter case, it would be reasonable to assume that the case contains a typewriter. In a similar vein, courts have held that certain containers are "distinct drug-carrying devices." If an officer observes such a container, the courts of most states allow the officer to immediately seize and search the container without a warrant.

In most states, the following containers have been held to be distinct drug-carrying devices that can be searched and seized without a warrant: small glassine envelopes, clear baggies filled with leafy substances, paper bindles, small party balloons filled with a powdery substance, and large blocks wrapped with dark garbage bags and taped with duct tape. Clearly, when at all possible, a person should not have in his or her possession such items, nor should marijuana ever be stored or transported in such containers. To do so simply screams out to the police, 'I'm in possession of illegal drugs, feel free to search and arrest me!"

In most states, the following containers have been held to be distinct drug-carrying devices that can be searched and seized without a warrant: small glassine envelopes, clear baggies filled with leafy substances, paper bindles, small party balloons filled with a powdery substance, and large blocks wrapped with dark garbage bags and taped with duct tape. Clearly, when at all possible, a person should not have in his or her possession such items, nor should marijuana ever be stored or transported in such containers. To do so simply screams out to the police, "I'm in possession of illegal drugs, feel free to search and arrest me!"

In one case, a Florida police officer detained Torin Thompson. The officer asked Torin for identification. Torin stated that his identification was inside a shaving case. The officer pat-searched the outside of the case and after detecting no weapon allowed Torin to reach inside to retrieve his identification. When Torin pulled his billfold from the case, a small brown manila envelope fell out onto the hood of his car, and Torin quickly but quietly attempted to brush it to the ground. The officer saw the envelope, picked it up, opened it, and found marijuana inside it. The Florida court held that the officer's warrant less opening of the manila envelope was illegal, because, although some brown manila envelopes may contain marijuana, "It cannot be said that most brown manila envelopes contain marijuana. There could have been any number of items in the envelope other than marijuana that Torin would wish to keep private." The court also stated that Torin's conduct in attempting to hide the envelope by brushing it to the ground "was no different than if he had simply told the officer that he did not want him to look into it without a search warrant." Torin was saved because he wisely put his marijuana in an opaque envelope rather than in a clear baggie. Most courts would probably agree with the Florida court that brown manila envelopes are not distinct marijuana-carrying devices.
The Arizona Supreme Court has, in effect, held that brick-shaped, dark plastic garbage bags are distinctive marijuana-carrying devices. In this case, Dennis Million and two of his friends were observed late one evening "carrying dark-colored garbage bags and packing them in various compartments within a [motor home]." After loading the motor home, the men began driving toward the California border. As they approached the border between Arizona and California, DEA agents stopped the vehicle, conducted a warrant less search, and recovered a total of 1,238 pounds of marijuana.
Dennis argued that the agents' warrant less search of the plastic garbage bags was illegal because those bags were not distinct marijuana-carrying devices. However, the prosecutor defeated this argument by careful questioning that convinced the court that, to an experienced DEA agent, the plastic bags were recognizable as distinct drug-carrying devices:
(Q) What type of garbage bag—you have used the word garbage bag —what type of garbage bags were they carrying that you observed at first?
(A) They were the dark large type that you would put in an outside garbage can. Dark green or black. They appeared very dark.
(Q) Did they appear to be empty or full?
(A) No, sir, they appeared to contain various objects in them that were—that they would bend when they would carry them. The garbage bags would bend and loose objects inside them could be observed.
(Q) How would you describe these objects you saw in the bags? (A) Well, they were individual objects, not large. I would
describe them, as from prior experiences, as brick-shaped
objects.
(Q) Have you seen these types of garbage bags on prior occasions?
(A) Yes, sir.
(Q) How many prior occasions? (A) A 100 or 150 times.
(Q) Have those been in connection with investigations of
marijuana? (A) Yes, sir.
(Q) Is there anything unusual, anything common about the
garbage bags, put it that way? (A) In this area, it is most common to find garbage bags of this
type to contain marijuana contraband. They are available
everywhere.
(Q) Is there some reason why garbage bags are used instead of cardboard boxes?
(A) One thing, they contain the smell better. Second, they are waterproof. They are able to pack them on different configurations very readily by pushing and shoving them into
Different locations in the compartment. They put talcum on them to deaden the odor.
The rule about distinct drug-carrying devices is a good example of one which, if known, can be used in the public's favor. For example, there are two favorable aspects to the courts' defining what containers can be searched on sight. First, the public is put on notice never to hold or transport "private items" in such containers. Second, in deciding some of these cases, the courts have clearly stated that certain items are not distinct drug-carrying devices. For example, most courts have held that opaque film canisters (the little ones with black bodies and black or light-gray caps) are not considered distinct drug-carrying devices, so they cannot be searched without a warrant. Other such "safe" containers include opaque pill bottles, eyeglass cases, purses, and any other containers commonly used to carry legitimate items.

Abandoning Marijuana
In many marijuana cases, police officers have claimed that as they approached a suspect they saw him drop a baggie containing "green leafy vegetable matter believed to be marijuana." The officers then report that he or she picked up the baggie and found that it did in fact contain marijuana. It is interesting to note that, following the Supreme Court's 1961 ruling that the exclusionary rule applies in state courts (initially it was only applied in federal courts), there was a significant increase in the number of cases in which police officers claimed that a person dropped drugs as the officers approached. For example, one study of New York City police officers showed a near 80 percent increase in the number of cases in which people allegedly abandoned drugs. Either people suddenly began abandoning marijuana in droves, or police officers were fabricating the alleged abandonment’s in order to escape the exclusionary rule following what was really an illegal search.

The general rule on these cases (known as "dropsy" cases) is that an officer can retrieve the marijuana based on either the plain-view rule or on the theory that the drugs were abandoned. The officer can then arrest the person for possession because he has probable cause to believe that the person did possess marijuana. For example, Paul was a musician in a band playing at a local bar. It was late in the evening and he stepped outside for some fresh air and smoked a joint between sets. As he stood there enjoying his respite, he noticed a car slowly driving toward him. Not particularly worried, he took another drag on his joint and suddenly noticed that the car was in fact a police patrol car. In shock, and without thinking, Paul threw his joint to the ground and stood there looking at the patrol car.

Officer Monsanto, inside the patrol car, observed Paul throw down a lit cigarette (littering) and, suspecting he might turn up some other evidence of crime, got out of his car to speak with Paul. As Officer Monsanto bent to retrieve the cigarette, he discovered it was actually marijuana joint. Because the officer different locations in the compartment. They put talcum on them to deaden the odor.
The rule about distinct drug-carrying devices is a good example of one which, if known, can be used in the public's favor. For example, there are two favorable aspects to the courts' defining what containers can be searched on sight. First, the public is put on notice never to hold or transport "private items" in such containers. Second, in deciding some of these cases, the courts have clearly stated that certain items are not distinct drug-carrying devices. For example, most courts have held that opaque film canisters (the little ones with black bodies and black or light-gray caps) are not considered distinct drug-carrying devices, so they cannot be searched without a warrant. Other such "safe" containers include opaque pill bottles, eyeglass cases, purses, and any other containers commonly used to carry legitimate items.

If Paul had known the law, he would have known that he should never throw marijuana down on the ground when he is the only person in the area, and a police officer is nearby. Paul's best move would have been to quickly place the joint into an empty pocket and casually walk back into the bar. In that case, Officer Monsanto would have simply seen a man smoking a cigarette outside a bar. Such observations would not have given the officer probable cause to search Paul, nor even a reasonable suspicion to stop and detain him.

In another case, police in Arizona received information that a man had sold marijuana to two out-of-town women and was driving them to the airport. The police observed the man helping the women carry two suitcases. When the suitcases were passed through the x-ray machine, the officers observed what appeared to be bricks of marijuana on the x-ray picture. The officers asked the man for consent to search the suitcases. The man replied that the suitcases were not his, but rather belonged to the women. The women likewise denied ownership of the suitcases, claiming they were taking them for a friend. The police seized the suitcases, opened them, and discovered a large amount of marijuana inside. The man was convicted of possessing marijuana for sale. The court held that the man had voluntarily abandoned the suitcases when he denied ownership. Accordingly, he had no right to complain that the warrant less seizure and search of the suitcases violated his reasonable expectation of privacy.

In a rather strange case, a man in Maryland was hospitalized because an overdose of hashish oil had leaked from balloons he had swallowed. While in a semiconscious state, the man had a bowel movement into a hospital bed pan. The police, without a warrant, looked through the man's excrement and removed several balloons containing hashish oil. The man was subsequently convicted of possession after the court found that he maintained no reasonable expectation of privacy in his excrement that had been deposited in a bed pan rather than in the privacy of his own bathroom at home. In effect, the court held that the man had abandoned his own excrement and hence a warrant less search and seizure was fully permissible under the Fourth Amendment!

In another case, a woman in Louisiana who had several marijuana joints in her purse became nervous and began to run as a police officer approached her. At one point, out of either anger or nervousness, the woman threw her purse at the officer. The court held that the officer's subsequent warrant less search of the purse, which led to his discovering marijuana cigarettes, was entirely legal because the woman had abandoned the purse, and its contents, by throwing it at the officer.

The Marijuana Aroma
The distinctive aroma of marijuana, burning or not, is recognizable by much of the population. Additionally, most police officers are trained to recognize the odor. Therefore, as a general rule, an officer who detects the odor of marijuana has probable cause to search the person or place from which he believes the odor is emanating.
In one recent Florida case, an off-duty police officer who was working security at Fantastic Skating Center "smelled a very strong odor of smoked Cannabis" emanating from a young man who entered the rink. The officer identified himself as a police officer and took the minor into a nearby office where he proceeded to search the boy's pockets. He found a partially smoked joint and arrested the minor.

The boy argued that the mere smell of marijuana did not give the officer probable cause to believe that the boy was then, and there, in possession of marijuana. The Florida court of appeal disagreed. The court explained that the officer was trained to recognize the aroma of marijuana and that the aroma could not be confused with any other legal substance. The court commented:
The sense of smell is perhaps not as keen in humankind as in other animals, but some odors such as burned Cannabis are very strong and very distinctive. A person who is trained to recognize the odor of marijuana and is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband. (State v. T.T. [FlaApp. 5 Dist. 1992] 594 So.2d 839.)

Most courts agree with the Florida court that a trained police officer's detection of the marijuana aroma is sufficient to establish probable cause necessary to immediately search a person. It's often possible, however, for defense counsel to later attack the officer's claimed olfactory abilities. In particular, some cases have been won by cross-examining the officer about what training he has received (usually none) with regard to the period of time that it takes for the aroma to dissipate. Defense counsel should try and show that the marijuana aroma can linger for a considerable period, and hence, its mere detection does not make it probable that the person is currently in possession of marijuana as required for probable cause. Likewise, the officer can be cross-examined about what training he has received (again, usually none) to distinguish, based on odor alone, a person who has been in a room with others who smoked marijuana, versus the person himself smoking or possessing marijuana.

Note, that with respect to containers that smell of marijuana, the courts have looked at the nature of the container from which the aroma was emanating. Generally speaking, if the container was one that judges would consider private, such as a briefcase, the courts have required that the officer obtain a search warrant before searching, despite the detection of the marijuana aroma. On the other hand, if the container is less private in the eyes of a judge (such as a brown paper bag); the courts are more likely to allow a warrant less search.

As is explained in Chapter 6, most courts permit an officer to conduct a warrant less search of a car if the odor of marijuana is detected. However (as explained in Chapter 7), without exigent circumstances or consent to enter, an officer cannot conduct a warrant less search of a home simply because he can smell marijuana coming from inside.

The Marijuana Aroma and Dog Sniffs
The Supreme Court, as well as most state courts, has held that using a dog to sniff containers or persons suspected of possessing or transporting marijuana is not a "search" and, therefore, does not require a search warrant or probable cause. The Supreme Court has explained its reasons for permitting warrant fewer dogs sniffs of containers such as luggage:
We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics-detection dog, however, does not require opening the luggage. It does not expose non-contraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods ... We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here—exposure of respondent's luggage, which was located in a public place, to a trained canine—did not constitute a "search" within the meaning of the Fourth Amendment. (USv. Place [1982] 462 US 696.)
This means that an officer with a marijuana-sniffing dog is entirely free to approach you with his dog and let it have a sniff. A citizen is, of course, under

Most courts hold that if a marijuana-sniffing dog alerts to a package or jerson, that alone establishes probable cause that the package or person is: concealing marijuana. However, if challenged in court, the prosecution must rove that the dog was properly trained and has proven reliable in the past. In most cases, the issue of a dog's reliability is easily resolved by the prosecutor introducing proof that the dog is certified as a drug detection dog. A defense attorney can attack this by introducing, or eliciting, evidence that the dog has not seen recertified on a yearly basis; has performed very few drug sniff searches; has I poor record of accurately detecting the presence of marijuana; or that the dog's landler has a poor record of distinguishing when the dog is alerting to marijuana versus when the dog is barking for some other reason, such as unconscious cueing tiy the handler. (US v. Diaz [6th dr. 1994] 25 F.3d 392).

As a final note, at least one state court (New York) has held that under the state constitution, the use of man's best friend to sniff for drugs is a "search" and hence may be conducted only pursuant to a warrant or under an exception to the warrant requirement.

Canvassing Dog Sniffs
In several recent cases, courts have upheld the use of a drug-sniffing dog in a general canvassing operation (as opposed to having a dog sniff a particular person or package). In one case in the town of Truth or Consequences, New Mexico, for example, a Border Patrol agent regularly began walking a trained marijuana-sniffing dog through the parking lot of the town's Super 8 Motel. The Border Patrol suspected that this motel was a general staging area for drug smugglers. One morning while walking the dog through the parking lot, the dog alerted to the trunk of a Chevy Impala parked in front of one of the motel rooms.

The agents watched the car until Keith Ludwig approached it. The agents contacted Mr. Ludwig, identified themselves as Border Patrol agents, and requested his consent to search the car's trunk. When Mr. Ludwig refused to consent, one of the agents took Mr. Ludwig's keys and opened the trunk. Inside were several large bags of marijuana.
The Tenth Circuit upheld the canvassing dog sniff on the theory that the motel parking lot was not a private area, and hence anyone, including law enforcement agents, had a right to walk through it. Given the agents' legal right to be in the parking lot, the Tenth Circuit reasoned that under the Supreme Court's ruling that dog sniff's are not "searches," the agent was entirely within the law to allow a drug-sniffing dog to do its thing.
10 obligations to allow this to happen. An approach by an officer with a dog is •merely a contact, and as discussed earlier a person is absolutely free to walk away and avoid the officer and dog completely. As explained earlier, the officer can detain a person only if he has a reasonable suspicion, based on objective facts, that: he person is involved in criminal activity.

Most courts hold that if a marijuana-sniffing dog alerts to a package or person, that alone establishes probable cause that the package or person is: concealing marijuana. However, if challenged in court, the prosecution must prove that the dog was properly trained and has proven reliable in the past. In most cases, the issue of a dog's reliability is easily resolved by the prosecutor introducing proof that the dog is certified as a drug detection dog. A defense attorney can attack this by introducing, or eliciting, evidence that the dog has not been recertified on a yearly basis; has performed very few drug sniff searches; has a poor record of accurately detecting the presence of marijuana; or that the dog's handler has a poor record of distinguishing when the dog is alerting to marijuana versus when the dog is barking for some other reason, such as unconscious cueing by the handler. (US v. Diaz [6th Cir. 1994] 25 F.3d 392).

Finally, the Tenth Circuit held that given the dog's alert to Mr. Ludwig's trunk, the agent had probable cause to search Mr. Ludwig's trunk. Consequently, the agent did not need Mr. Ludwig's consent, and under the automobile exception to the warrant requirement, he did not need a warrant. The Tenth Circuit explained: "... a dog alert usually is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a 'fair probability' that there is contraband. We therefore have held in several cases that a dog alert, without more, gave probable cause for searches and seizures." The court noted that a dog alert might not provide probable cause if the particular dog had a poor accuracy record. The court noted, however, that the dog in question had never falsely alerted. (US v. Ludwig [10th Cir. 1993] 10 F3d 1523.)

Border Searches
Because the federal government has the authority to exclude aliens from the country, courts have granted law-enforcement agents broad powers to conduct searches at or near borders. In 1992, in fact, the U.S. Customs Service seized over 462 thousand pounds of marijuana, about twenty thousand pounds more than the DEA seized that same year.
The United States Supreme Court has held that an officer does not need a warrant, probable cause, or even reasonable suspicion to search you, your car, or your belongings, at a border. Therefore, any time you cross a U.S. border, you in effect consent to a search. Most people are aware of this rule and plan accordingly.

Two aspects of border searches are not as well-known. First, the rule has been extended to allow the opening and search of mail coming into or out of the United States. The inspectors do not need a warrant, probable cause, or even a reasonable suspicion that the mail contains marijuana before opening it. Note that this rule applies only to international mail. As discussed shortly, mail traveling within the United States is given much greater protection.

Second, the definition of "border" has been expanded to include airports that receive nonstop flights from foreign countries. Therefore, if a person flies into or out of any U.S. airport directly from a foreign country, that person is subject to a warrant less search even though he or she may be a thousand miles from the closest geographical border.

Border Strip Searches and Body Cavity Searches
With respect to the scope of a border search, the Supreme Court has made clear that "routine" border searches may be conducted without probable cause or justification of any kind. However, if the search or detention of a traveler is beyond the scope of a routine customs search or inspection, it must be justified by at least a reasonable suspicion that the person is involved in criminal conduct. So far, no case has explicitly defined a "routine" border search. The cases make clear, however, that the degree of intrusiveness is critical factor in distinguishing routine from non-routine border searches. For example, a strip search at a border cannot be conducted without at least a reasonable suspicion that the person is concealing contraband beneath his or her clothing. Similarly, in order to conduct a body cavity search or subject someone to an involuntary X-ray search at a border, there must be a "clear indication that the suspect is carrying contraband in a body cavity." (USv. Ramos-Saenz [9th dr. 1994] 36 F 3d 59.)

Exigent Circumstances
An officer may conduct a warrant less search or seizure if "exigent circumstances" exist. Exigent circumstances were described by one court as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." As the quote indicates, this exception to the warrant requirement is very broad. Courts created the rule out of concern that some emergency situations require immediate action by the police, and that such actions would be hindered if an officer had to delay acting to obtain a search warrant.

The exigent-circumstances exception to the warrant requirement is often applied in marijuana cases to uphold an officer's warrant less search. As mentioned earlier, when police officers make a warrant less search that turns up evidence of a marijuana crime, many judges are reluctant to find the search illegal and suppress the evidence. As a result, judges often invoke the "exigent circumstances" exception to the warrant requirement whenever there are the slightest grounds for doing so, theorizing that if the officer had to delay his search to obtain a search warrant, the suspect would have destroyed, moved, or sold the marijuana.

For example, in one case an officer thought that a particular home was being burglarized. He checked the home's windows and front door, but saw no evidence of forced entry. He then decided to knock on the front door just to check that everything was all right. Doug, the resident of the home, came to the door and opened it a few inches. Out flowed the overwhelming aroma of burning marijuana. When Doug saw that it was a police officer on his doorstep, he quickly tried to close his door. The officer used his foot to block the door and gain entry to Doug’s home. Once inside, the officer arrested Doug and his friend for possession of marijuana.

A California court noted that in most cases an officer must have a warrant to enter a person’s home. However, the court held that the officer's warrant less entry of Doug's home was legal under the "exigent circumstances" exception to the warrant requirement. The court explained that the odor of burning marijuana is unmistakable to a trained officer, and hence, established probable cause that Doug was in possession of marijuana. Ordinarily, an officer needs a search warrant to enter a home even if he has probable cause that marijuana is located inside. Here, however, the court explained that Doug saw the officer when he opened the door, and was aware he was in trouble. The officer's immediate warrant less entry of the home was necessary, said the court, to prevent Doug from destroying the marijuana.

One well-established exigent circumstance justifying a warrant less entry by a government agent is when a building is on fire. Obviously, such an exception makes sense, unless we want buildings to burn to the ground while firefighters track down a judge to issue a warrant permitting them to enter a burning home and fight the fire. The problem is, however, that some courts, adrift in the hysteria of the War on Drugs, have stretched the exigent circumstances exception to dangerous limits, finding almost any "emergency" justifies the warrant less entry of a home.

For example, in one 1993 case from Mac Donald County, Missouri, deputy sheriffs arrived at Larry Taylor's home to arrest him on a misdemeanor arrest warrant. Deputy Sheriff Perkins parked his patrol car about ten feet from a metal shed near Larry’s home. As Perkins exited his automobile, he thought he smelled something burning. The aroma was emanating from Larry's shed. He also heard "a motor or something running." Perkins went to the shed door; it was locked. Although he did not have a search warrant authorizing the search of the shed, Deputy Perkins found a closed window and opened it. A blanket hung on the inside of the window. Perkins pushed the blanket aside and poked his head inside to look around. He testified: "It was kind of hazy in there, and I seen this motor, looked like a heater, or something, blowing down there. And I also seen what appeared to be marijuana on some screens. Looked like screens off of the window...."
About a half hour later, and still without a search warrant, Perkins removed the door to the shed and went inside. Inside, he found marijuana suspended on screens above a heater. Deputy Perkins seized the marijuana and Larry Taylor was later convicted of possession.

Larry argued that Deputy Perkins performed an unlawful warrant less search when he opened the window, pulled the shade up and looked inside the shed. Claiming that a danger of fire existed, the prosecutor used the exigent circumstances exception to the warrant requirement to defeat Taylor's argument. The prosecutor put Deputy Perkins on the stand and asked him, "Why did you look into the shed?" Perkins replied, "Because I was afraid something was on fire in there."

The court held that Perkins had lawfully entered the building because he thought he smelled something burning and needed to take swift action in order to prevent possible disaster. Consequently, the court held that exigent circumstances excused the need to obtain a search warrant, and hence no constitutional right was violated by Deputy Perkins' warrant less entry of the shed. (State v. Taylor [Mo. App. S.D. 1993] 857 S.W.2d 482.)

Swallowing Incriminating Evidence
It's relatively common for individuals in possession of illegal drugs to become terrified at the approach of a police officer and attempt to dispose of evidence by swallowing the drug. Often the police officer will immediately attempt to force the person to spit out the contraband. As a general rule, police officers may reach into a person's mouth to recover evidence if there is probable cause to believe a crime is being committed. No warrant is required for such a search, because, under the exigent circumstances rule, immediate police action is necessary to prevent the destruction of evidence. As stated by the California Supreme Court, "the mouth is not a 'sacred orifice' and there is no constitutional right to destroy or dispose of evidence."

The Fourth Amendment does place some restrictions on how police can attempt to seize swallowed contraband. Police officers attempting to remove contraband from a person’s mouth must act reasonably and may use only as much force as is necessary to remove the object. In other words, the police may not use brutal or excessive force, or engage in a removal technique that "shocks the conscience." Most courts have held that police officers cannot "choke" a person to prevent the person from swallowing marijuana. For example, in one case an officer who had been surveilling an apartment unit suspected of being a "drug house" observed Michael Jones leave the unit carrying a tiny toy balloon suspected to contain heroin. When the officer approached, Michael panicked and attempted to swallow the balloon. The officer grabbed Michael's lower jaw and, for ten or fifteen seconds, applied pressure to Michael's jaw and throat in an attempt to prevent him from swallowing the balloon. In the struggle, Michael was shoved to the ground, the balloon was expelled, and was later found to contain heroin.

The court held that, "a suspect may not be choked or abused in order to force evidence from his person or to prevent its disposal by swallowing.... choking a man to extract evidence from his mouth violates due process." The court rejected the prosecution's argument that a "reasonable amount of choking" is permissible. The court stated:
California law ... has not recognized distinctions in a degree of choking, but rather has drawn the line of illegality at choking.... When illegality is shown the law does not recognize degrees of illegality and inquire whether the conduct was grossly or only mildly illegal. No object that is forced from an accused by means of choking should ever be received in evidence.

After stating the above rule, the court held that the officer's forceful action on Michael's throat and lower jaw was indeed "choking," and hence was illegal. As a result, the balloon and its contents were excluded from evidence. (People v. Jones [1989] 209.CalApp.3d 725.)

In another case, police officers tackled an amputee in a wheel chair, after observing him place a "two-inch wad" of masking tape into his mouth. After knocking the man out of his wheel chair, several officers grabbed the man's chin and placed pressure on his neck to prevent him from swallowing the wad. When the man refused to spit out the wad, another officer pushed his Bick pen into the man's mouth and successfully pried the object out. The court held that this action was legal because there was no evidence that the officers attempted to choke the man.

Searches at School If You Are a Student
If you are a student at a public school, it is important to understand that the Supreme Court has reduced the level of protection you have against searches conducted at school by a school official. The case in which the Court created this exception involved a female student, referred to by the Court as "T.L.O." who was reportedly smoking cigarettes in the school bathroom in violation of school rules. She was called into the principal's office and questioned by the assistant principal. Although T .L.O. denied smoking, the assistant principal did not believe her.

The assistant principal reasoned that if T.L.O. did smoke, then she probably carried the pack of cigarettes in her purse. Without any more evidence, and without a search warrant, the assistant principal snatched T.L.O.'s purse, opened it, and found a pack of cigarettes. Along with the cigarettes, he also saw a package of rolling papers, which he associated with marijuana use. After finding the rolling papers, he emptied T.L.O.'s purse and carefully searched for more evidence of marijuana use. In among T.L.O.'s personal belongings, he discovered additional evidence of her use, and possible sale, of marijuana.
Clearly, had this been a search of an adult's purse by a government agent, the Court would have held that it was illegal because it was not based on a warrant. However, because the search was of a child, and on school property by a school official, the Court created a special exception to the warrant requirement. This exception permits a public school official to search students and their belongings, if the official has a reasonable belief that the student possesses contraband. Under this rule, school searches by teachers and principals will almost always be upheld as legal. Remember, however, what little protection this rule gives to public school students is not available to students at private schools. Private school officials are not constrained by the Fourth Amendment. Therefore, officials at private schools may legally search a student for any reason. Reasonable suspicion is not required. (New Jersey v. T.L.O. [1985] 469 US 325.)

Marijuana and Your Telephone
The Supreme Court has held that people are reasonable in expecting the contents of their telephone conversations to be private. For this reason, the Court has held that a police officer must obtain a search warrant in order to tap a person’s phone. Unfortunately, there is one main exception to this rule which is often used in marijuana investigations. Specifically, no search warrant is needed if one party to the telephone conversation agrees. This often occurs in marijuana cases when the police apprehend a small-time marijuana user and promise to give him a break f he helps them catch his supplier. The police will often instruct the user to call lis supplier and set up a buy. As part of the deal, the police will obtain the user's 'consent" to tape the telephone conversation. The contents of the conversation .vill be used against the supplier.

Likewise, telephone companies routinely monitor conversations to perform maintenance, to monitor employee performance, and to prevent fraud. If such monitoring results in the interception of a conversation concerning a marijuana crime, the company can disclose the intercepted comments to the police, despite: his fact that the information was obtained without a search warrant. Remember, he Fourth Amendment does not protect you against searches by private people? R private companies.

An additional exception to the search warrant requirement concerns telephone communications involving pagers and cordless phones. These broadcasts ire easily intercepted with a radio. In fact, many radio buffs make it a hobby to saves drop on cordless phone calls. Most courts hold that, because such conversations can be intercepted by almost anyone, and often are, a person has no reasonable expectation of privacy in such communications. Therefore, the police ire free to listen in on them without having to get a warrant.

It's interesting to note that nearly half of the 95 million households in the United States use cordless telephones, with the figure growing by leaps and bounds each year. As one court recently noted:
If, as some experts predict, we are moving inexorably toward a completely cordless telephone system, the decision as to whether cordless telephone conversations are protected by the Fourth Amendment may ultimately determine whether any telephone conversations are protected by the Fourth Amendment.

As just mentioned, the general rule is that conversations carried by land-based telephone lines are protected by the Fourth Amendment, while pure radio communications are not. Although most people who use a cordless telephone probably feel more like they're using a telephone rather than a radio, courts have routinely ruled that because cordless transmissions can be fairly easily intercepted by widely available radios, it is not reasonable for a person to expect them to be private. Consequently, the police may intercept them without a warrant. "Broadcasting communications into the air by radio waves," asserted one court "is more analogous to carrying on an oral communication in a loud voice or with a megaphone than it is to the privacy afforded by a wire."
Fortunately, at least one federal court (the Fifth Circuit) has noted that today's cordless phones are providing more and more privacy protection through such features as automatic frequency selection and cycling, and even scrambling. The court intimated that it might soon be reasonable for a person using such a high-tech cordless phone to expect his conversation to be just as private as one carried by wires. In that case, the person might be able to challenge warrant less interception of such a communication as an unreasonable search that invaded his or her reasonable expectation of privacy. For now, however, most courts which have examined the issue of intercepted cordless telephone conversations have refused to find that the caller had a reasonable expectation of privacy. The lesson is obvious: sensitive topics should never be discussed on a cordless phone.

Pen Registers and Trap & Trace Devices
The Supreme Court has held that police officers may install "pen-registers" and "trap-and-trace" devices without obtaining a search warrant. A pen-register is a device that records all the telephone numbers that are dialed from a particular residence. A trap and trace device is similar, but it records all the telephone numbers of incoming calls. With both devices, the numbers are recorded at the instant they are dialed or received, and hence, the information is extremely up-to-date. The Court has held that installation of such a device is not a search; so the Fourth Amendment is inapplicable, meaning that police can install such devices for any reason and need not obtain a warrant.

In the case that created this rule, the police suspected that Mr. Smith was involved in a robbery. The officers, without first obtaining a search warrant, attached a pen-register to Mr. Smith's telephone