Yes Stephen Colbert, I smoke pot. Why are the cops suddenly rushing the stage?
August 14, 2008 10:30 AM   Subscribe

Shouldn't admitting/publicly announcing that you smoke pot or do other drugs at least be enough for a search warrant in the US?

First off, I know there are differing opinions on if pot should be legal in the US. I'm asking about the world as it is, not the world as it should be. So with that in mind, let's try to keep comments about how it should be legal anyway out of this.

I was reading the latest issue of Time, which has an interview with Seth Rogen on page 4( that 10 questions mailed in by readers deal). First question is if he's a stoner in real life. Rogen says that he smokes pot.

Maybe I'm missing something, but isn't a bit dumb to admit that you're breaking the law? And couldn't law enforcement use this admission against him and at least get a search warrant, if not take things farther?

Two other things I'll mention before I let you have a crack at it.

1 - I know that there are people more deserving of law enforcement's attention than drug offenders who are users and not sellers. I'm wondering if it can happen, not if it should happen.

2 - I know Seth Rogen is Canadian, and that laws and procedure there are different. I mention him because of the article.
posted by theichibun to Law & Government (21 answers total) 4 users marked this as a favorite
Best answer: Search warrants require probable cause that the illegal items or the evidence of illegality is present at the place to be searched.

Just saying "I smoke pot" is not reasonable evidence that you have it in your pocket right then and there, or even that you carry it on you at all.

Now, if someone said, "Yeah, I just came from Rogen's house, and he's got trash bags full of the stuff in his living room, and you know how he says he smokes pot all the time," that'd be different.
posted by Cool Papa Bell at 10:35 AM on August 14, 2008

USING drugs is not a crime.

Possession is a crime. Selling is a bigger crime. Public intoxication is sometimes a crime. But there is no charge called "use of drugs" that I know of.
posted by drjimmy11 at 10:39 AM on August 14, 2008

Smoking Pot, see Misdemeanor.
posted by JJ86 at 10:49 AM on August 14, 2008

Best answer: Also, publicly admitting something is not the same as swaering under oath or giving evidence after being read your rights. You're allowed to lie when you're 'just talking'. Hence it's not really the basis for a warrant.
posted by le morte de bea arthur at 11:16 AM on August 14, 2008 [1 favorite]

JJ86, possession is one of the references. Nothin' about usage.
posted by desuetude at 11:30 AM on August 14, 2008

Best answer: On the distinction between possession of drugs and usage thereof:

1. There's a substantial overlap. Most people busted while using drugs are busted for possessing the drugs that they are using. One can imagine using without possessing -- having something blown into your face, maybe -- but still.

2. The question had to do with probable cause. If Seth Rogen said, "I intend to smoke pot in my living room tomorrow at 2 PM," that would constitute probable cause. If Seth Rogen said, "Every day since I was 16, I have smoked pot in my living room," I'd wager that was probable cause too. But the information has to be reasonably specific and present or future oriented.
posted by Clyde Mnestra at 11:53 AM on August 14, 2008 [1 favorite]

Isn't having a doobie in your mouth essentially equivalent to possession, though? If I were a cop busting a guy with no drugs in his possession, I would make the argument that Person A (who has a warehouse of pot) has allotted Person B (who owns nothing illegal) possession of a minute amount of pot to be used at his leisure.
posted by spamguy at 11:53 AM on August 14, 2008

deseutude said: JJ86, possession is one of the references. Nothin' about usage.

How exactly can you smoke it without possessing it? Contact high?
posted by JJ86 at 11:58 AM on August 14, 2008 [1 favorite]

Once you're done smoking, you don't have any left, JJ86.
posted by sunshinesky at 12:14 PM on August 14, 2008

Isn't having a doobie in your mouth essentially equivalent to possession, though?

Sure, if you're caught with it in your mouth or hand. But if you've tossed the joint away, you're not charged with possession based on what's in your bloodstream.
posted by desuetude at 12:38 PM on August 14, 2008

Response by poster: OK, so I think I understand how they couldn't use an interview like what I saw to go search him. Namely that there's no probably cause that he has anything with him right now.

That being said, if I'm a cop and I hear him say it would that be enough probably cause to search him right there?
posted by theichibun at 2:33 PM on August 14, 2008

That being said, if I'm a cop and I hear him say it would that be enough probably cause to search him right there?

Well, none of us are judges, but ...

If he says, "I smoke pot" -- not probable cause. Doesn't mean anything.

If he says, "I've got a bag of bud in my pocket" -- maybe, but I bet it still wouldn't hold water in court.

One interesting thing about probable cause and searches is the amount of times permission for a search is legally provided by the person being searched, without them really knowing what's happening. For example, if a police officer stops you and says, "Do you mind if I look in the trunk of your car," or "Can you empty your pockets for me," and you provide just about any answer other than "no," then you've just given him permission, which he will gleefully take advantage of.

Here's a more coherent example of a typical search scenario.
posted by Cool Papa Bell at 2:50 PM on August 14, 2008

This one is even more clear.
posted by Cool Papa Bell at 2:52 PM on August 14, 2008

4) Just Say "No" to Warrantless Searches
Warning: If a police officer asks your permission to search, you are under no obligation to consent. The only reason he's asking you is because he doesn't have enough evidence to search without your consent. If you consent to a search request you give up one of the most important constitutional rights you have—your Fourth Amendment protection against unreasonable searches and seizures.

A majority of avoidable police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless 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.

Don't expect a police officer to tell you about your right not to consent. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police officers are trained to use their authority to get people to consent to a search, and most people are predisposed to comply with any request a police officer makes. For example, the average motorist stopped by a police officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request.

If, for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Officer, I know you want to do your job, but I do not consent to any searches of my private property." If the officer still proceeds to search you and finds illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court.

You should never hesitate to assert your constitutional rights. Just say "no!"

posted by Cool Papa Bell at 2:53 PM on August 14, 2008 [1 favorite]

If an officer actually sees or has a strong belief a crime has been committed, or is currently in progress, or is about to be committed to the standard of reasonable cause (lower than probable cause), he can stop and search you. To arrest you, he needs probable cause.

Hearsay can be enough to reach that standard, but saying 'I smoke dope' just isn't specific enough. Saying "I smoke dope all weekend, every weekend" - and it being a weekend - would probably be enough. People have a right to live their life free of unreasonable harrassment from the police according to the US constitution, and it's hard to use your right of free speech if you're likely to be searched or arrested every time you say something edgy.

Saying 'you're a cold blooded killer, dawg' in a policeman's hearing is not enough to arrest your friend for murder, for example.

Plus, you have to bear in mind that the drug laws don't really apply to wealthy users. If the police were to search and arrest every celebrity suspected of taking cocaine (assuming they could, anyway) there wouldn't be many celebrities left!
posted by ArkhanJG at 3:06 PM on August 14, 2008

Let's not forget that the cops and the legal system have better things to do than deal with wealthy actors and their high-priced lawyers regarding what is very often decriminalized in the states that actors are most likely to be residing in.
posted by explosion at 4:15 PM on August 14, 2008

Response by poster: Let's also not forget that I said in the original question that I realize they have better people to go after, and that federal law takes precedent over state law.
posted by theichibun at 6:20 PM on August 14, 2008

Best answer: "you're not charged with possession based on what's in your bloodstream."

Unless you're charged with internal possession.
posted by Jahaza at 7:00 PM on August 14, 2008

Unless you're charged with internal possession.

To be completely accurate, I believe that's being charged with what's in your urine, not your bloodstream. But yeah, while in South Dakota, best not publicly state your dope-smokin' ways.
posted by desuetude at 6:08 AM on August 15, 2008

Regarding the derail on use versus possession: in most states, your body is considered a container.
posted by klangklangston at 2:04 PM on August 15, 2008

Also, lots of celebrities employ what some call a weed carrier to hold the bud for them, just in case. Hip hop focused site, but very comon in practice.
posted by paisley henosis at 8:34 AM on August 16, 2008

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