Disproportionate Enforcement?

Power Line comments on a Washington Post story. A disproportionate number of blacks arrested for Possession of Marijuana. As is usual the Post focuses on police actions. What liberals refuse to acknowledge is that there are two components to any police action. The cops and the crooks.

There are segments in society where there is no common understanding of common terms. Take the phrase, “I’m going to work.” A person with a middle class view would believe that speaker was off to the office, mechanic shop or other similar endeavor. On the east side of San Antonio, the term means that the speaker is going to a street corner or crack house to sell crack cocaine.

In the crack cocaine selling community, (almost exclusively black controlled) dealers have told me they didn’t break the law. Because, “everybody knows it’s against the law to sell crack to the police.” Absent the police, selling crack is perfectly acceptable.

I don’t know how many times I have had to explain to a dope dealer, that cops are not going to sell his dope for their own profit. Apparently this is a common misconception. In two different instances, I had to explain to city managers that we weren’t really selling a kilo of cocaine, only pretending to. These city managers didn’t have a moral objection. They were trying to figure out what their cut from the sale would be.

I taught search and seizure to new narcs and patrol officers. One of the things that most people do not understand is phrase: “Unreasonable search and seizure.” Most construe this to mean that any search or arrest must be supported by a warrant. This is not true. An unreasonable search may be illegal. But not all searches, without warrant are unreasonable or illegal. The Supreme Court has carved out fourteen exceptions to the warrant requirement. There are specific hoops that the officer must jump through in order to justify the consequent search.

For instance cops can arrest and search a suspect when they observe the suspect commit an offense within their presence or view. Smoking marijuana sets the stage. The odor lingers. Chances are the user cannot smell it.

Let me put it into context. Have you ever entered an elevator and were subsequently assaulted by the stench of perfume or cologne? Chances are the wearer is unaware of the overbearing odor. Not so the other people on the elevator.

In this instance the officer has two choices. He can conduct a search of the person who smells of marijuana. Without arrest the officer has to convince a judge that the odor of burned marijuana led him to believe that the user had more. Or the officer can arrest based on the belief that the user is committing an offense (possession of marijuana) in his presence. Either choice is fraught with problems and may not be successful.

There is a third alternative. The officer can engage the user in conversation. During that conversation he can ask the user to hand over his weed. Both the cop and the user know that a small quantity of marijuana is not worth the effort of going to jail. However, lying to a cop, treating him like he’s stupid is the quickest way to the jailhouse. About nine times out of ten the user will do just that, hand over his weed. A lot of patrol cops will dump out the dope and declare victory. This is the wrong approach.

By handing over the weed the user has just completed all the elements required for a reasonable search. The officer did not detain the individual. He merely engaged that person in conversation. The person then produced contraband that constituted an offense. The officer arrested the person based on the offense occurring in his presence. The subsequent search, based on a custodial arrest is reasonable. As Power Line makes clear this is the first step.

However, a marijuana arrest can be an entree for the police to obtain information about more serious crimes. As one defense lawyer told the Post, officers can pat down people found to be using marijuana for illegal weapons and check for outstanding warrants. They can also try to turn users into informants or state witnesses.

Power Line

There have been a number of times where the joint or dime bag of weed that came out of the suspect’s right pocket led to the ounce of crack cocaine in the left pocket.

Even a denial, on the part of the suspect, will bolster the probable cause for a search. When the response to the question: “What have you got in your pocket is”:

They are not my pants!

The only question that remains is what kind of contraband and how much?

In many jurisdictions possession of marijuana is against the law. However, the the law is not enforced. Cops dump out personal use pot in lieu of an arrest. The crooks aren’t about to complain. Losing a little weed beats going to jail. If it happens enough times, smoking weed is accepted behavior.

It is kind of like firebombing a police station in Portland on Minneapolis. No big deal.