Stopped by Homeland Security while on probation, what could happen?
September 29, 2010 5:44 PM   Subscribe

Homeland Security just searched my husband and accused him of holding drugs. He in no way comes into contact with drugs. What the hell? Help!

The giant caveat in this mess is that he's on probation until January. It obviously has stipulations about being in any sort of trouble, especially regarding drugs and alcohol.

So my husband got searched while waiting outside North Station in Boston for a friend before entering the Bruins game about an hour and a half ago. While sitting on stairs of the federal building next door, he put his phone in his pocket. A Homeland Security cop saw this and claimed he was "smoking weed" and hid it in his pocket, and that when they were around the corner from him they "smelled weed". My husband doesn't smoke weed - sure, in our 20's, but literally not in five years or more. There is NO WAY he would ever have weed on him. He was smoking a Nat Sherman mint cigarette. So they searched him and called in his ID, and said they'd be in touch with his probation officer. They found no weed, obviously, he showed them the cigarette box and let them smell it and touch it and everything. Knowing the area, there was probably someone else smoking weed nearby. It's teeming with people at that time.

He's texting me this story, so obviously I don't have every detail, but I'm very worried about this. They let him go and watch the game after 10-15 minutes, I guess. They asked him what they'd find if they went to look at the cameras, and he said "me, smoking a cigarette and checking my phone because my friend is late". They asked for his phone number to "follow up", and then bizarrely told him to enjoy the game.

What do we do? He could do jail time for "violating" probation, right? Even though he did nothing? The lawyer he had for the misdemeanor case that got him on probation in the first place was terrible, so calling him is out - we spent a giant chunk of our savings because we believed the justice system would work so he did not plead to something he didn't do, but his lawyer pretty much phoned in his case and he lost. We're still burned by that, but we've moved on and accepted it. Most of our friends and family have no idea any of this happened, as it's embarrassing. My point is, we've tried the "we've done nothing wrong, the facts will sort themselves out" and it cost us dearly. We just don't want to go through that again.

The only thing I could offer for advice was for him to call his probation officer first thing tomorrow and offer to take a drug test, but I'm not sure that's good advice. We could find another lawyer, but I've lost my job and my husband's lost one of his, so money's tight - I'm hoping this will go away and nothing will come of it, but I also don't trust Homeland Security at all.
posted by kpht to Law & Government (15 answers total) 3 users marked this as a favorite
Can you ask to make this anonymous?
posted by vincele at 5:51 PM on September 29, 2010

Response by poster: Should I? I'd like people to memail me if they have specific advice and I'd like to be able to follow up easily.
posted by kpht at 5:57 PM on September 29, 2010

Best answer: If they thought they had anything, they would have arrested him on the spot. You can probably write this off as them just screwing with him for a few laughs.

That said, in the same situation I would probably head down to the local clinic and have a drug test done, on-the-record, ASAP.

(IANAL, but since no one else has suggested anything helpful to you, I offer my $0.02)
posted by pla at 6:03 PM on September 29, 2010 [5 favorites]

Response by poster: pla: that's a pretty good suggestion, although at this point it's late and it'd have to wait until tomorrow. I figure it's pretty hard to help this kind of thing since it really needs actual legal advice, but if I start calling lawyers in phone books I probably won't get an answer tonight, and my poor husband will probably not sleep at all tonight worrying. Even if I get someone who's violated probation in MA and they tell me what happens then, I'm sure the worst case scenario in our minds is not what actually happens in these cases.
posted by kpht at 6:09 PM on September 29, 2010

What exactly are they going to tell his probation officer? That he was at a game and they searched him and found nothing? That doesn't seem likely to me. Can you imagine how stupid Homeland Security would sound calling the probation officer? They've got nothing.
posted by orme at 6:15 PM on September 29, 2010 [1 favorite]

He should probably tell his probation officer; it's easier to go wrong not telling your PO something than telling them something. If his PO tries to violate his probation, he should hire a lawyer to defend him against the violation. I doubt that will happen, but you never know.

Is he on regular or random drug testing? If he'd been using weed it would should up on those tests for about a month; without a positive drug test, I doubt the PO would try to violate him.
posted by Bulgaroktonos at 6:35 PM on September 29, 2010 [2 favorites]

Response by poster: Well, he happened to catch the same guys on his way out of the game and asked them if he was in trouble or what he should do, and they said he wasn't charged with anything and it shouldn't be an issue with his probation, and they also said "hey, we smelled pot, but it could've been someone else". So I think everything SHOULD be ok. It sucks that we're both very paranoid about encounters with cops (them later finding a discarded joint anywhere in the area tossed on the ground and then saying "hey, it was probably that gigantic guy with the mohawk" crossed our minds), but despite the initial WTFery, they seemed relatively rational when he went back. I'm sure my husband being completely polite and humble helped.
posted by kpht at 6:41 PM on September 29, 2010

Best answer: They've got absolutely nothing at all, no way, no how. All that stuff about 'we're gonna call your probation officer' was them trying to cover themselves and appear as though they were somehow justified searching him and saying he's the guy who was smoking the weed, but they didn't find any on him and all they've got is that they smelled weed and he was near by. That isn't just nothing -- that's zilch, ridiculousness. Never mind the probation officer, in order to get your husband thrown in jail, they'd have to get a judge to sign off on him doing something wrong. But what did he do wrong? Really? I understand and sympathize with your frustration with the justice system, but not even a bad lawyer could mess this one up.

The Homeland Security guys were just chagrined that they didn't find anything and covered by getting blustery.
posted by incessant at 6:46 PM on September 29, 2010 [1 favorite]

Response by poster: Bulgaroktonos: No drug tests of any kind although I'm sure it's in the fine print that they can do it whenever they feel, and he's allowed to drink alcohol but does so very rarely. It's fairly lenient, he just calls his PO every month and leaves a message, he rarely even speaks to the guy.
posted by kpht at 6:47 PM on September 29, 2010

I would be more concerned that the Bruins lost 4-1 tonight than I would be about this. Homeland Security cops? I did not know there was such a thing, but if there is, busting someone for smoking joints should not be high on the priority list. Busting someone for smoking a mint cig? Meh. They were bored and fucked with your husband. He essentially called their bluff by being polite, answering their questions and not acting scared or guilty. I do not know what your husband is obligated to tell his PO, but I would only tell him this if it is required. These cops will not waste their time calling anyone. Remember, just as they were willing to pull the tapes on your husband (tried to scare him onto confessing to something) you can pull the tapes on them.
posted by JohnnyGunn at 7:29 PM on September 29, 2010

Response by poster: JohnnyGunn: I am very concerned about the loss as well ;) I think the DHS cops are mainly there to watch people who go through the courthouse property after leaving the Garden. Their SUV marked DHS with a lightbar is parked on Causeway St at almost every game but I've never seen the officers themselves.

Thanks all, for the reassurances. I heart you, metafilter.
posted by kpht at 7:44 PM on September 29, 2010

I would mention this to the PO. In some states you're required to report to your PO when you have any kind of interaction with the Fuzz.

The idea of getting a pee test isn't a bad idea, but I'm not entirely certain it's a good one either. I won't worry you with the ways it could go wrong because you've probably already thought of them.

If his PO isn't a complete d-bag, having a brief talk with him for some unofficial 'IANYL but I am your PO' advice may help. I am however strongly leaning toward the Fuzz just throwing their weight around because they could.
posted by Heretical at 11:04 PM on September 29, 2010

I think he could go to a licensed lab and get a pee test on his own and pay for it, just to have it on record. Meanwhile, pot supposedly shows up for a very long time after it's smoked, so no rush.
posted by mareli at 10:53 AM on September 30, 2010

Best answer: Take a deep breath. I am a prosecutor, though not in your state. Here, if we wanted to revoke someones probation, either probation or the DAs office would file for a revocation of probation. The defendant would be able to admit or deny the alleged violation of one or more conditions of his probation. If he denied the violation, we would set it for a hearing and I would have to prove the defendant violated his probation.

The procedures in your state could be different. If they're the same, your husbands probation could only be revoked if not getting hassled by DHS is a condition of his probation.
posted by craven_morhead at 5:06 PM on September 30, 2010

The riot squad is restless
They need somewhere to go
As Lady and I look out tonight
on Desolation Row

Bored, thought they'd screw with someone who chances are might have some weed on their person.

But for your bf's probation to be cancelled, they'd have had to find something.
posted by dhartung at 7:08 PM on September 30, 2010

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