Three Republicans joined all but two Democrats in approving marijuana decriminalization at the federal level.
In addition to decriminalizing most possession matters, the measure would also allow the Veteran Administration to prescribe medical marijuana, allow marijuana users to keep their security clearances, and expunge some old possession of marijuana records. Such histories “haunt people of color and impact the trajectory of their lives and career indefinitely,” declared House Majority Leader Steny Hoyer. “It can result in difficulty finding employment, difficulty finding housing, denial of access of federal benefits, denial of financial aid at colleges and universities, and denial of the right to vote,” he added.
The measure will most likely die in the Senate. Few observers believe the bill will get the necessary sixty votes to come to the floor.
Why is Marijuana Illegal?
Alcohol and tobacco kill hundreds of thousands of Americans every year. So why is marijuana, which is largely harmless, illegal, and these other things are legal?
Scientifically, there’s a difference between marijuana and alcohol/tobacco. Alcohol and tobacco are mood-altering substances. Marijuana is a mind-altering substance. In this way, marijuana is more like heroin than caffeine. A line must be drawn somewhere, and this line is about as good as any other one.
But the real reason marijuana is illegal, at least in Georgia and many other states, may lie in your keyboard.
Around 1870, manual typewriters, the kind seen in old film noir movies, entered production. Several of these typewriters had keyboard layouts which were quite user-friendly and easy to use. By design, the QWERTY layout wasn’t easy to use or user-friendly. Its designer, Christopher Latham Sholes, rearranged the keys so users couldn’t type too fast and jam the typewriter’s mechanics. Nevertheless, the current QWERTY model became the standard. In 1893, the five largest typewriter companies in the country, Calligraph, Yost, Densmore, Remington, and Smith-Premier, all adopted the QWERTY layout.
With QWERTY firmly in place, it was almost impossible for another layout to dislodge it. Similarly, Congress made marijuana illegal in the 1930s. Once you’re on the naughty list, it’s very difficult to get on the nice list.
Marijuana Possession Cases in Cobb County
Criminal marijuana prosecutions in Georgia include a few minor possession of drug paraphernalia (PODP) matters and a few large drug trafficking cases. But almost 90 percent of marijuana arrests are misdemeanor or felony drug possession cases. Some key procedural and substantive defenses are available in these cases.
Search and Seizure Issues
Typically, arresting officers in possession of marijuana (POM) cases testify that they smelled or saw marijuana. But this uncorroborated testimony doesn’t hold up in court. The state must produce the substance itself. So, like most possession matters, POM cases usually have search and seizure issues.
Judges only grant search warrants if the officer provides an affidavit based on probable cause. Most POM cases begin with traffic stops. In these cases, officers have neither the time nor the inclination to go through the warrant process. So, most of these matters rely on a narrow search warrant exception, such as:
- Consent: Owners or apparent owners may consent to police property searches. Consent in criminal court is a voluntary and affirmative act. If an officer threatens to get a warrant if the owner doesn’t consent, that agreement is arguably involuntary. Apparent owners are people like vehicle drivers who don’t own the car.
- Plain View: If officers see contraband, like marijuana, in plain view, they may seize it. A Marietta criminal defense lawyer can often challenge these searches because illegal items, like marijuana, usually don’t wear nametags. Based solely on a visual inspection, it’s impossible to distinguish hemp, which is legal, from marijuana, which is illegal. More on that below.
- Pat-Down Search: Officers who reasonably suspect that criminal activity may be afoot can detain people and pat them down for weapons. Although the Supreme Court has recently watered down the reasonable suspicion rule, officers must still have some evidence to support their hunches. It’s still illegal to profile suspects in the United States.
Slightly different rules apply if the defendant was on probation or parole at the time of the search. Usually, these individuals give blanket consent to police searches as a condition of their supervised release.
Marijuana and Hemp
Congress legalized hemp, which is basically marijuana without tetrahydrocannabinol (THC), several years ago. As mentioned, these two substances are physically indistinguishable. They smell alike and look alike. Only an expensive chemical test establishes the difference. This test is not always available and not always accurate.
A procedural defense might be available in this area as well. Defendants often admit they had marijuana in their possession. These statements are generally inadmissible in court unless the officer properly Mirandized the defendant.
Once again, the Supreme Court has watered down the Miranda requirement. But the basic rule is unchanged. Officers must administer these warnings, such as the right to remain silent, before custodial interrogation begins.
Custody means the defendant doesn’t feel free to leave. Most people don’t feel free to leave long before an officer handcuffs them. Interrogation usually means asking any question. It doesn’t have to be directly related to a criminal offense.
Legal Elements of Possession
If prosecutors produce the substance in court and prove it was illegal, they still aren’t out of the woods yet. The state must establish all three elements of possession beyond any reasonable doubt. These three elements are proximity, control, and knowledge. Let’s look at a couple of examples.
Assume Tommy is at a friend’s house when, acting on a tip, police raid the house. They have a valid search warrant. Officers find a baggie of marijuana under the sofa where Tommy is sitting. In court, prosecutors would have no problem establishing proximity, and probably control. Knowledge is another matter. If Tommy’s friend had any skills whatsoever, the baggie probably wasn’t visible.
Now assume Michelle sees her friend put some marijuana in the glove compartment before they drive away. Michelle sits in the back seat. An officer pulls over Michelle’s friend, who consents to a search. The officer finds the drugs and arrests Michelle.
This time, control is the issue. Michelle knew the drugs were there and, under Georgia law, they were close enough to satisfy the proximity requirement. But she most likely didn’t have control over the marijuana. That’s especially true if the glove compartment was locked and/or someone else was sitting in the passenger seat.
Although marijuana is illegal, POM cases are hard to prove in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. Convenient payment plans are available.