Know Your Rights
Learn How to Protect Yourself as a Cannabis Consumer with the 4th, 5th, and 6th Amendments—Plus Legal Tips for CannaMoms & Dads
We're back with Part 2 in our series with cannabis attorney, Meital, of Manzuri Law.
In today’s interview, we discuss how knowing & naming certain amendments can protect you in police encounters!! Super important information for every cannabis consumer.
Tammy: So many cannabis consumers still have anxiety around the fact that the plant is still quasi legal? Do you have any tips for knowing your rights?
Meital: While it differs from state to state, we're all governed by the Constitution, including the Bill of Rights.
And of particular importance is the Fourth Amendment, Fifth Amendment, and the Sixth Amendment.
Your Fourth Amendment right is to be free from unreasonable searches and seizures. How that translates is that you have the right to withhold consent for an unlawful search.
Sometimes they're going to search your vehicle, your home, your person without your consent, and there's nothing really that you can do about that. But the one thing that you can do is assert your right by withholding consent.
And the good thing about doing that is that your lawyer later on can say, “Your Honor, my client, said I do not consent, so the search is unlawful.”
It's not for you to decide in that moment with the police officer, whether they have probable cause or whether they can conduct the search or not. Your job is just to say, officer, I do not consent to this search.
And that's a search of your person, that's a search of your vehicle. And that's a search of your home as well.
There are different rights for each type of search. So a search of your vehicle, for example, is less protected than a search of your home. That's why they can search a car without a warrant, but they can't search your home necessarily without a warrant unless there's certain circumstances.
So remember to state, “I do not consent to a search.” That's exercising your Fourth Amendment right.
Under the Fifth Amendment, which is your right not to incriminate yourself, you say: “I assert my right to remain silent.”
You have to actually say, “I assert my right to remain silent.” If you just remain silent, that's kind of questionable.
When you say those words, you've turned the switch on your protection on, so anything you say thereafter, is probably inadmissible in court, unless you spontaneously utter it.
For example, if you say, “I assert my right to remain silent,” and the officer keeps questioning you, anything you say after that is inadmissible in court.
But if you say, “I assert my right to remain silent,” and then you're sitting in the back of a police vehicle, and you tell them you were smoking tons of weed, and you sell it, then you're spontaneously saying it of your own will, then that might be admissible in court.
So say, “I assert my right to remain silent,” and then zip it. Shut the bleep up.
And then the sixth amendment is your right to an attorney. So that's your right to seek legal counsel.
So always say, “I do not consent to a search. I assert my right to remain silent. And I'd like to see my lawyer please.”
Police officers will try to get you to self-incriminate, and they’re very good at doing it. Your job is just to say those three things. And then actually just sit there and not say anything.
And if you’re on the spot and can’t remember, you can just say, “I invoke the 4th, 5th, and 6th.”
Then, you let your lawyer take it from there.
Tammy: I'm a mom, and there are many CannaMoms out there who are finally admitting that we have given up the hangovers in exchange for the joints.
Do you have any legal tips for cannabis moms and dads?
Meital: Parenting as a cannabis consumer is different. Unfortunately, it's not comparable to drinking a glass of wine or having a bottle of tequila around.
The agency that usually is going to be your challenge is child protective services, depending on what state you're in. But that's generally the case.
And they operate under a different set of rules. Generally, their guiding principle is whether there's evidence of negligence, and that's a very broad standard.
To ensure that you’re not demonstrating any signs of negligence, you want to keep your cannabis locked up, out of sight, inaccessible.
I don't think there's necessarily anything wrong with consuming in front of your child, I think that's a personal decision. I don't think that, per se, shows negligence or neglect.
But in some states, it might. Probably not here in California.
I did have some cases early in my career where moms who are about to give birth admitted to the nurse practitioner or the doctor that they had smoked during pregnancy, or smoked before they came to the hospital to deal with the pain, and that can be a big deal.
So that is something to be aware of. Because they can actually prevent the mother from breastfeeding. Or they can ask you if you're willing to take a drug test, and I’d say no.
I would say no, and that's your right–at least in California to say no.
Outside of the legal stuff, just obviously be smart about it, right? No driving with cannabis and smoking. Don't let your kids get into it.
A lot of people get into trouble with edibles, because the kids get into the edibles, so those are really important to keep locked up. But the actual flower itself…
Tammy: Kids are not interested in stealing your vegetables.
Meital: Yeah, and it has a terrible taste. But edibles can be dangerous.
I've seen a lot of cases where kids get into a pack edibles and end up at a hospital, and luckily nobody dies from cannabis! But they can get into a coma-like state for a day or two.
But the legal ramifications can be severe.
Tammy: Tips from me. Make sure when you go to pick your kid up, or you're going to extracurricular activities, that you don't smell like it.
Make sure your eyes aren't bloodshot. Brush your teeth, change your shirt.
I would also say, if you're pregnant or breastfeeding, you tell no one. Not your doctors, not a family member, not a friend.
There are a lot of people who are still affected by prohibition and everything that they were taught by the D.A.R.E. program.
So it's best if you keep that close to who needs to know–which is probably you're a partner, and no one else.
You have to do what's best for your child at all times. And that includes your decision and your relationship with cannabis.
Meital: Speaking of partners, I have seen some nasty divorce cases where the partner will use the other partner’s cannabis use against them in some way, like in a child custody case.
So that's something to keep in mind as well. I have heard of that, and seen that with my own eyes often. So be careful with that.
Tammy: I think that is the importance of a medical license as well. It demonstrates that you consume, but there are medical reasons for why you do it.
So you may be consuming cannabis in California without a license, but if you're using it for menopausal pain, or PMS, or migraines, and if you have a license that at least can explain it a bit more.
Versus you just going to your local dispensary and exercising your right for medicine.
Meital: Right, so if your partner claims, my spouse is just stoned all the time with the kids. That just is not a good look in court, unfortunately. And you do have to explain that.
So it's something to consider if you are going through a divorce or you have a tumultuous relationship. Maybe keep your consumption a little more private.
Tammy: A lot of people travel with cannabis. In fact, I heard that you can fly out of LAX with up to an ounce. How true is this?
Meital: LAX did put out a policy that they're not going to prosecute folks that are within the California limits, they then pulled that policy because a lot of people took advantage of it.
You have to be mindful of the state you're flying into, where it might not be legal.
And anytime you're entering the federal airspace, you're technically governed by federal laws.
So generally, we don't see a problem with anybody who is carrying less than an ounce. The problem comes when we're flying with a lot more than that.
I’ve had folks get in trouble for what looks like probably intent to sell, because they’ve filled suitcases with it.
So just be very careful. Don’t bring anything with batteries. But yeah, generally LAX is pretty lax about it. I know people fly internationally with it, and have had some success. So just be mindful.
Tammy: Right, and if it's in the shape of a grenade, maybe don't take it on the airplane. You're for sure going to get a bag inspection for your grenade-shaped pipe or glass. Just reconsider it.
Meital: When it comes to cars, treat it like alcohol.
You wouldn't be drinking and driving. You would put it in your trunk, in a locked container, or a sealed container.
In California, even where it's legal, you can get an open container violation, like if you have an open joint in your passenger side.
And if it smells like cannabis in the car, that can often be enough for the officer to search your whole car. That's something that we see very often.
You could be facing a DUI charge, open container, and then possession if you have more than you're allowed to possess. Or possession with intent to sell if there's indicia of unlawful sales. So all of those things to keep in mind.
Tammy: What about if you have a medical license and you have an open container? Are you protected with a medical license?
Meital: Not really, it should still be in the trunk or out of reach. Because even if you have a medical ID card that doesn’t give you permission to drive intoxicated.
It's the same thing if you had an oxy prescription–you still shouldn't be driving while you're medicated. So the best thing is to keep it out of sight, out of mind, smell free.
That’s when you’ll be most protected.
Tune in for Part 3 where we’ll explore the obstacles women face in the cannabis industry.
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