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KNOW YOUR RIGHTS

The Medical Cannabis Advocate’s Handbook

We must not make criminals of seriously ill people. Itis not a crime to be ill and to need to have access topain relief. People who seek this therapy should beable to receive it. It is long past time for us to baseour policies on science, not misguided politics.

—Congresswoman Nancy Pelosi

For more information, see www.AmericansForSafeAccess.org or contact the ASA office at 1-888-929-4367 or 510-251-1856.

KNOW THE LAWSMedical cannabis patients and their providersare vulnerable to federal and state raids,arrest, prosecution, and incarceration and suf-fer pervasive discrimination in employment,child custody, housing, public accommoda-tion, education and medical care. Laws pro-tecting patients and their providers vary fromstate to state and in some cases may varyfrom county to county. Many individualschoose to break outdated state laws that donot account for medical use or their access.And no matter what state you are living in,medical cannabis patients and their providersare always violating federal law.

Making the choice to participate in a medicalcannabis program or to resist current lawsshould be done with thoughtful considera-tion. Following the law in your local area maynot always protect you from law enforcementencounters, and the more you know aboutyour rights, the more likely you will be tohave a successful encounter with law enforce-ment. It's important to also remember thatthe best law enforcement encounter is theone that never happens.

The information found in this section is meantto educate patients and their providers aboutthe existing federal laws, how to avoid lawenforcement encounters, how to be preparedfor encounters, how to understand yourrights during encounters, and how to navi-gate the legal system after an encounter.After you understand this material, be sure toshare this information with your family,friends, or anyone who may be at risk.

STATE LAWS

Medical cannabis laws vary from state tostate. Consult the Legal section of Americansfor Safe Access's website, click on your state,and then check out "Becoming a Patient" foryour state. Take a look at the website for your

state's medical cannabis program if one exists.Finally, consult local laws to make sure thatyou are adhering to any guidelines developedby your county and/or city. Following eachlaw to the letter may not prevent you fromhaving a law enforcement encounter, but itwill help you have a successful one.

FEDERAL LAWS

Despite the promises made by the Obamacampaign and the memo issued in 2009 bythe Department of Justice, medical cannabisremains illegal at the federal level and carriessevere penalties. Federal interference withstate medical cannabis programs can happenin every state, and there is no "medical"defense within the federal justice system. Ifyou're participating in your state's medicalcannabis program, you are in direct violationof federal law. It is important to rememberthat even though the media has hyped themeager promises made by different parts ofthe federal government, patients have nofederal protection and are still at risk. Untilfederal law changes, patients across the coun-try face dire choices between violating thelaws of their country and treating their illnesswith the medication deemed most appropri-ate by their physician.

The federal government regulates drugsthrough the Controlled Substances Act (CSA)(21 U.S.C. § 811), which places every con-trolled substance in a schedule, according toits relative potential for abuse and medicinalvalue. Under the CSA, cannabis is classified asa Schedule I drug, which means that the fed-eral government views cannabis as beinghighly addictive and having no medical value.Doctors may not "prescribe" cannabis formedical use, though they can "recommend"its use under the First Amendment.

The Drug Enforcement Administration (DEA),charged with enforcing federal drug laws, hastaken a substantial interest in medical

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KNOW YOUR RIGHTS


cannabis patients and caregivers in generaland, more specifically, in large cultivation anddistribution operations. Over the past decade,hundreds of people have been targets of fed-eral enforcement actions. Many of them havebeen arrested and had property seized. Morethan a hundred providers are currently inprison or are facing charges or ongoing crimi-nal or civil investigations for the cultivation ordistribution of medical cannabis.

Federal cannabis laws are very serious andpunishment for people found guilty is fre-quently very steep. Federal judges have ruledthat medical necessity cannotbe used as a defense. In fact,medical cannabis cannoteven be mentioned during afederal trial.

Federal sentencing guide-lines take into account notonly the amount of cannabisbut also past convictions. Notall cannabis convictionsrequire jail time under federal sentencingguidelines, but all are eligible for imprison-ment. If convicted and sentenced to jail, aminimum of 85% of that sentence must beserved. The greater the quantity of cannabisinvolved, the more likely one is to be sen-tenced to jail time, as opposed to probationor alternative sentencing.

In addition to the sentencing guidelines, thereare statutory mandatory minimum sentences,which primarily target offenses involvinglarge quantities of cannabis. There is a fiveyear mandatory minimum for cultivation of100 plants or possession of 100kgs, and thereis a ten year mandatory minimum for theseoffenses if the defendant has a prior felonydrug conviction. Cultivation of 1,000 plants orpossession of 1,000kg triggers a ten yearmandatory minimum, with a twenty yearmandatory sentence if the defendant has oneprior felony drug conviction, and a life sen-tence with two prior felony drug convictions.To avoid a five year mandatory minimum, it isadvisable to cultivate well below 100 plants,

including any rooted cuttings or clones.

Low-level federal offenders, even with multi-ple prior convictions, may end up with proba-tion for the entire sentence of one to twelvemonths and no jail time required. Possessionof over one kg of cannabis with no prior con-victions carries a sentence of six to twelvemonths with a possibility of probation andalternative sentencing. Over 2.5 kg with nocriminal record carries a sentence of at least sixmonths in jail; with multiple prior convictions,a sentence might be up to two years to threeyears in prison with no chance for probation.

Keep in mind that eventhough medical cannabis pro-tections may exist in yourstate, the federal governmentprovides no medical defenseto possession, cultivation, ordistribution charges, and ifyou are charged, no mentionof your state's medicalcannabis laws are admissible

at trial. Federal defendants are prohibitedfrom discussing their illness or the fact thatthey were following their state's law. Eventhough the Obama administration and theDepartment of Justice have made statementsthat prosecuting patients is a low priority,patients and providers are still being harassed,raided, arrested, and convicted throughoutthe U.S. Until federal law changes, participat-ing in your state's medical cannabis programstill carries some risk.

OTHER APPLICABLE LAWS

School Zones

Patients and providers should avoid posses-sion and cultivation of cannabis in schoolzones, as there are typically additional penal-ties for the possession, use, and cultivation ofcannabis near schools, whether it is for med-ical or recreational use. Some state medicalcannabis laws have limitations on "sensitiveuse" areas, limiting cultivation, use, and pos-session of medical cannabis within a specificamount of space of a school, playground, etc.

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There are three levels of law enforcementinteractions and safe ways to handle eachencounter. There are three sets of magicwords to use during an encounter.

1) CASUAL CONVERSATION—During a lawenforcement encounter, ask if you arebeing detained or arrested. If you are notbeing detained or arrested, walk away.

2) DETENTION—If you are being detained,ask why! Make them cite the law—andremember what they say.

3) ARREST—Say the first two sets of magicwords: "I choose to remain silent!" and "Iwant to see a lawyer!" Remember toremain silent. Law enforcement may tryto trick you into talking. Keep in mindthey are highly trained in gatheringinformation and are allowed to lie inorder to trick you into talking.

The third set of magic words: I do not con-sent to a search!

If the officer says: "Do you mind if I look inyour purse, bag, home or car?"

You say: "I do not consent to a search."

If the officer says: "Why not? Are you hidingsomething?"

You say: "I believe in my Constitutional rightto privacy, and I do not consent to a search."

Note: This probably will not stop an officerfrom searching you, but it can help get evi-dence thrown out of court.

Search Warrants

Do not let an officer into your home withouta search warrant. If an officer does have awarrant, check the address, the date (relative-ly recent), and look for a judge's signature.

If law enforcement knocks on your door, stepoutside and close the door behind you whileyou find out why they are there. Do NOTleave the door open.

If they do enter your home, with or without asearch warrant, say, "I do not consent to asearch." If they enter your home with a war-rant and you do not consent to a search andthe warrant is later deemed illegal by a judge,anything that is seized during the search willnot be evidence used against you. It is veryimportant to always say, "I do not consent toa search." Say it loudly, multiple times. Itmight be the officer's word against yours, butif your neighbors heard you yell it 15 times,then the judge might actually take your wordover the officer's.

In addition, keep in mind that Drug FreeSchool Zone laws can double the maximumsentences in federal court, where the mentionof "medical" cannabis is prohibited.

Firearms

Firearms can result in harsher federal sentenc-ing and may draw attention to patients.Even if your state protects patients' right tosafe access to medical cannabis, the presenceof firearms might increase the chances of astate or federal law enforcement encounter.Again, the best law enforcement encounter isthe one that never happens.

Under federal law, "any person who, during

any drug trafficking crime for which the per-

son may be prosecuted in a court of the

United States, uses or carries a firearm, or

who, in furtherance of any such crime, pos-

sesses a firearm, shall:

(i) Be sentenced to a term of imprisonment

of not less than 5 years;

(ii) If the firearm is brandished, not less than

7 years; and (iii) If the firearm is

discharged, not less than 10 years."

Although the U.S. Constitution confers a right

to carry firearms, we have seen many patients

face extreme legal consequences for having

firearms in addition to plants.

EXERCISE YOUR RIGHTS!


In addition, the memo issued by theDepartment of Justice in 2009, which wasintended to provide the U.S. Attorneys'Offices with guidance on the prosecution ofmedical cannabis patients and providers,specifically mentions the presence of firearmsas an example of "potential federal interest"that probably falls outside of "clear andunambiguous compliance" with underlyingstate law. In other words, beyond the sen-tencing enhancements, the presence offirearms makes patients and providers a morelikely target for federal attention.

ASA strongly advises that if you are a medicalcannabis patient, do not carry or keepfirearms on your property.

Civil Asset Forfeiture

Federal law provides for the forfeiture ofproperty and profits obtained through orused in the commission of felony drug offens-es. Prosecutors are encouraged to include for-feiture offences in all drug indictments. Thiscan apply to landlords who rent to peopleconsidered in violation of federal law, andtherefore can also be used against the land-lords of patients who cultivate or use theirmedicine on the premises. It should be noted,however, that landlords do have defensesavailable to them in these types of civilactions and that they are rarely targets of for-feiture if they themselves were not participat-ing in the use, possession, or cultivation ofmedical cannabis.

BEST POLICE ENCOUNTER IS THEENCOUNTER THAT NEVER OCCURS

While your state may have extensive laws thatprotect your right to use medical cannabis,many law enforcement officers still believethat medical cannabis is a "sham" and that alluse of cannabis is recreational use. Lawenforcement officers often seize medicine,harass patients, issue citations, and even arrestpatients for exercising their rights. Carry yourrecommendation and/or state-issued ID Card(following your state's requirement) at alltimes, but do not present it to law enforce-

ment unless accused of a cannabis relatedcrime. Dealing with criminal charges and/orgetting your medicine back can be stressfuland costly, and may cause you to be "outed"as a medical cannabis patient. That's why wesay that the best police encounter is the onethat never occurs. If you follow these tips,you will be that much less likely to beharassed by law enforcement.

Use Common Sense

Consider safety when you choose to med-icate; cannabis smoke and vapor have verydistinctive smells. You will attract less atten-tion if you do not consume cannabis in plainview or near open windows.

Do not drive your car while medicating. If thepolice smell cannabis, they have probablecause to search your vehicle. If you are goingsomewhere, medicate after you arrive. Pleasenote that no medical cannabis laws protectyou from charges of driving under the influ-ence of cannabis. Every state has the ability toprosecute patients for driving under the influ-ence if they are impaired while driving.

Although it may help with dosages andrationing, packaging your medicine in eighth-or quarter-ounce baggies looks suspicious.Cannabis actually stores better in glass jars orairtight plastic containers in cool dark places.

Fewer plants attract less attention fromthieves and others who may wish you harm,so be realistic about the amount of cannabisyou will need.

Try to limit the amount of cannabis you havewith you at any given time. While you mayseal your medication in airtight containers,there is still a distinctive odor that is hard toprevent and can lead to law enforcementencounters. The less medicine you have withyou, the less smell there is.

Be a Good Neighbor

A common cause of trouble for both patientsand caregivers is complaints from neighbors.This problem might manifest itself in the formof an unpleasant personal confrontation or

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the neighbors may report concerns about nui-sance and safety to landlords or police.Subsequent investigations can lead to thearrest of patients and caregivers and to theclosure of medical cannabis dispensing centers.

Neighbors and nearby businesses may or maynot share your opinion about medicalcannabis, but they will be much more likely torespect your right to safe access if you are notcausing them problems. By being conscious ofneighbors' rights, privacy, and property,patients and dispensing centers can establishand maintain harmonious relationships.

Other issues with your neighbors can lead tolaw enforcement encounters. Domestic dis-putes, loud music, illegal parking, barkingdogs, and other nuisances should be kept to aminimum. Police are required to investigatethese reports and they will come to your loca-tion. When neighbors complain to lawenforcement, citations or criminal charges fornuisance violations can be difficult to dealwith, and investigation into these types ofcharges may lead to charges related to yourmedical cannabis use. Being a good neighborcan help you avoid these types of encounters.

Sensible Medical Cannabis Use

Patients and caregivers should educate them-selves about medical cannabis and under-stand the benefits and potential side effectsof their medicine. If you are new to usingmedical cannabis, or are trying a new strain,strength, or route of administration, it mightbe best to do so when you have no otherresponsibilities or plans. New routes ofadministration in particular may cause som-nolence, or tiredness. By being a sensiblemedical cannabis user and making informeddecisions, you can be as healthy as possibleand help change the way people think aboutmedical cannabis use, and also limit yourchances of a law enforcement encounter.

Guidelines for Sensible Cannabis Use:

1. Always listen to the advice of your doctorand use good judgment when usingmedical cannabis.

2. Carefully determine the amount ofcannabis that is right for you. Start with asmall amount and slowly increase yourdosage to find the proper level forsymptomatic relief.

3. Be informed about the side effects ofcannabis. It is also important to be awareof the possible risks of using medicalcannabis.

4. Think about the benefits of cannabis andrelief that its use provides you. Being ableto explain your use of medical cannabiscan help you be an effective advocate,and you can be an example that helpsyour friends, family, and community formtheir own opinions of medical cannabis.

5. Avoid medical cannabis use that puts youor others at risk, such as using it whiledriving, at work, or in public places.Remember, you can still be arrested forcannabis use and penalties can be stiff. Aswith any other medication, it remainsillegal to drive while under the influence.

6. Always carry a copy of your physician'srecommendation, caregiver's agreement,and/or ID card when in possession ofmedical cannabis.

Travel Safely

Many arrests for cannabis possession arisefrom traffic stops. Do not medicate and drive.If you travel with cannabis, make sure yourvehicle is up to code and your cannabis is con-cealed—preferably in your trunk.

Recently, some news outlets have reportedthat some TSA & airport officials have relaxedtheir own "policy" regarding medicalcannabis; please note that these officials men-tion turning patients over to local lawenforcement officials. It's important toremember that there are plenty of opportuni-ties in airports and on planes to interact withfederal law enforcement and there is NOmedical defense to possession, transportation,or trafficking charges at the federal level.Federal fines are steep and these types ofcharges may also lead to jail time. In addi-tion, some states' medical cannabis protec-tions do not extend to people who intend to

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leave the state with their medicine, so even ifyou are arrested in your home state, you mayface criminal conviction.

It's best NOT to fly with medicine, even if yourflight never leaves your home state.

Also, keep in mind that most medical cannabisstates do not recognize patient status for trav-elers (except AZ, ME, MI, MT, & RI). Justbecause you are a qualified medical cannabispatient in your home state, that does NOTmake you a qualified patient elsewhere.

BEING PREPARED IN ADVANCE FOR SUCCESSFUL LAW ENFORCEMENTENCOUNTERS

Fortunately, many patients and caregiversnever encounter law enforcement problems.Those who do regularly report successful inter-actions with local and county police. Manymunicipalities offer strong protection to med-ical cannabis patients; however, even in friend-ly jurisdictions, patients are still being harassedand arrested for medical cannabis, even if theypresent proof of their patient status.

Any patient or caregiver can become the tar-get of a law enforcement action. Each personwho decides to use medical cannabis or help apatient to do so should be prepared to suc-cessfully maneuver through these encounters.You might not be able to avoid arrest in eachinstance, but chances of successfully fightingcharges are greatly improved by educationand careful planning.

There are many measures you can take beforelegal problems occur. You should carefullystudy the Law Enforcement Encounters sec-tion of this manual and, if possible, attend anASA Know Your Rights training to most effec-tively learn this detailed information. Youshould also stay on top of the basics. Maintaina current doctor's recommendation and havea clearly defined patient/caregiver relation-ship. Keep a copy of your recommendationand/or ID Card (depending on the state) inyour wallet or purse at all times. You maywant to memorize your physician's and

lawyer's phone numbers, or write them downto keep with your doctor's recommendationor identification.

It is very important to inform the people inyour life, such as family, friends, and room-mates, about your medical use of cannabis.They should be prepared to assist if you areharassed or arrested. They should also be edu-cated about their legalrights (see the "knowyour rights" informa-tion), as they may bequestioned in an investi-gation about yourcannabis use. Also, beaware of how to get out of jail if you arearrested. You may want to make a plan forbail, bond, or being released from jail on yourown recognizance. You may want to protectand organize your personal belongings andfinancial data and make a plan for emergencychild, pet, and plant care. Lastly, always stayalert for signs of surveillance and be aware ofpotential conflicts with the neighbors to avertproblems early.

SAFE GARDENING

Have Your Paperwork Together

Post a copy of patient medical cannabis rec-ommendation(s) and/or caregiver paperworkand/or other required paperwork prominentlyat any place where cannabis is cultivated.Keep a copy of all of your paperwork at anoff-site location; if a raid occurs, your paper-work may be destroyed or seized.

In the Garden

Don't be sloppy. Compost or eliminate trashoff site. The larger the garden appears, themore likely you are to attract the attention ofthieves or others who wish to cause you harm.Cultivating indoors is generally consideredsafer because it helps avoid nosy neighborsand reduces the risk of theft. Use extra odorcontrol methods during harvest to avoidoffending neighbors. The plants smell especial-ly pungent at this time, as they are particularly

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resinous, and you may find the smell lingeringin the air, on your clothes, and in your hair.

Be Smart: Be discreet

Be mindful about hauling grow equipment,tools, and plants into your home or grow sitein view of neighbors. In the same vein, astempting as it may be, tell as few people aspossible about the location of the site.

CREATE SECURITY CULTURE IN YOUR COMMUNITY

"Security Culture" refers to the importanceof developing unbreakable unity within themedical cannabis community. If everyoneinvolved maintains this unity, the entire com-munity will be safer. Law enforcementagents frequently aim to turn people againsteach other and disorganize or disband thecommunity.

Implement a Security Culture

Take care of yourself and your community.Don't gossip, brag or ask for compromising orunnecessary information about medicalcannabis operations and activities. Althoughsuch behavior may be entertaining, it putsyou at greater risk of arrest and the policemay use personal splits to divide the commu-nity. When you are about to discuss your per-sonal involvement in medical cannabisoperations, consider the following:

• Would this person repeat what you areabout to tell them to anyone else? Whenyou share information about your use orcultivation of medical cannabis, you aresharing information that may be usedagainst you in court if this person is everinterrogated as a witness. You should alsobe cautious of theft. Patients andproviders have been robbed so it's best tolimit the dissemination of sensitiveinformation.

• Would you want this person to have toperjure him or herself? Think carefully:you may be giving people informationthat may cause harm to you or to them.

If someone you know is giving out sensitive

information, talk to him or her in privateabout why such talk can be hazardous.Someone who repeatedly engages in gossip,bragging or seeking unnecessary informationabout inappropriate topics after repeatededucational talks is a grave risk at best, and apolice agent looking to provoke or entrapothers at worst.

Keeping an Eye Out for Surveillance

Take precautions. Assume you are under sur-veillance if you are in any way involved in pro-viding medical cannabis to patients. Do notdiscuss sensitive matters on the telephone,through the mail, by email, or in your home,car, dispensing collective, or office. Be cautiouswith whom you discuss sensitive information.Keep written materials and lists of patients ina secure place. If you are arrested, the policemay investigate all of your contacts. Policeofficers have the right not only to go throughyour address book, but can also answer anycalls made to your phone. Keep in mind thatelectronic data such as emails and text mes-sages still exist even after they've been delet-ed, and your phone company or ISP may bewilling to turn them over to law enforcementwithout even being subpoenaed.

Excerpted from "Security Culture," Slingshot Issue #72, sling-

shot.tao.ca/ with modifications by ASA.

SUCCESSFUL POLICE ENCOUNTERS

When dealing with law enforcement officers,keep your hands in view and don't make sud-den movements. Avoid passing behind them.Nervous officers are dangerous officers. Also,never touch the officers or their equipment—you can get injured and/or charged withassault and battery .

Law enforcement officers do not decide yourcharges; they can only make recommenda-tions. The prosecutor is the only person whocan actually charge you. Remember that thepolice have no power to negotiate or charge;promises of leniency or threats of harsherpenalties are all lies and are designed to getyou to start talking.

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Conversation

When law enforcement officers are trying toget information, but don't have enough evi-dence to detain or arrest you, they'll try tocoerce information from you. They may callthis a "casual encounter" or a "friendly con-versation." If you talk tothem, you may give them theinformation they need toarrest you or your friends. Inmost situations, it is not advis-able to volunteer informationto the police. Ask if you arefree to leave, and, if you are,walk away. If you are beingdetained or arrested, let the officer know thatyou do not consent to a search and that youwish to remain silent and want a lawyer.

Detention

Police can detain you only if they have rea-sonable suspicion (see below) that you areinvolved in a crime. Detention means that,though you aren't arrested, you can't leave.Detention is supposed to last a short time andthey are not supposed to move you. Duringdetention, the police can pat you down andgo into your bag to make sure you don't haveany weapons. They aren't supposed to go intoyour pockets unless they feel a weapon.

If the police are asking you questions, ask ifyou are being detained. If not, leave and saynothing else to them. If you are beingdetained, you should ask why, and remembertheir answer. Then you should say the MagicWords: "I am going to remain silent. I want alawyer" and nothing else. Remain silent.Anything you say to law enforcement may beused against you, and sometimes it's hard torecognize that the information you are volun-teering might harm you. It is always better tosay nothing at all. If they ask to search yourperson or belongings, say, "I do not consentto a search." They may say, "Empty yourpockets." You are within your rights torefuse. If you do empty your pockets, it is

considered consent and anything they find inyour pockets may be used against you.

A detention can easily turn into arrest. If thepolice are detaining you and they get infor-mation that you are involved in a crime, they

will arrest you, even if it has noth-ing to do with your detention.

For example, if someone ispulled over for speeding(detained) and an officer seesdrugs in the car, the officer mayarrest her for possession of thedrugs, even though it has noth-ing to do with her being pulledover. Law enforcement officers

have two reasons to detain you: 1) they arewriting you a citation (a traffic ticket, forexample), or 2) they want to arrest you butthey don't yet have enough information todo so.

Arrest

Police can arrest you only if they have proba-ble cause (see below) that you are involved ina crime. When you are arrested, law enforce-ment officers can search you to the skin andgo through your car and any belongings. Bylaw, an officer strip-searching you must be thesame gender as you. If arrested, you shouldstill say, "I do not consent to a search" to pre-serve your rights. After that, say, "I choose toremain silent and I want a lawyer." Afterthat, remain silent. Law enforcement will tryto get you to give them information aboutthe crime(s) they are holding you for. Keep inmind that denying things that they say is NOTremaining silent.

Reasonable Suspicion vs. Probable Cause

Reasonable suspicion must be based on morethan a hunch—law enforcement officers mustbe able to put their suspicion into words. Forexample, am officer can't just stop someoneand say, "She looked like she was up to some-thing." They need to be more specific, suchas, "She was standing under the overpass star-

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ing up at graffiti that wasn't there two hoursearlier. She had the same graffiti pattern writ-ten on her backpack. I suspected that she hadput up the graffiti."

Officers need more proof to say they haveprobable cause than to say they have a rea-sonable suspicion. For example, "A storeowner reported someone matching herdescription tagging a wall across the street. AsI drove up to the store, I saw her runningaway spattered with paint and carrying aspray can in her hand."

Searches

Never consent to a search. If police try tosearch your house, car, backpack, pockets, etc.say the Magic Words: "I do not consent to thissearch." This may not stop them from forcingtheir way in and searching anyway, but if theysearch you illegally, they probably won't beable to use the evidence against you in court.

You have nothing to losefrom refusing to consentto a search and lots togain. Do not physicallyresist officers when theyare trying to search,because you could gethurt and/or charged withresisting arrest or assaultand battery. Just keeprepeating the Magic

Words so that the law enforcement officersand all witnesses know that this is your stance.

Be careful about casual consent. That is, if lawenforcement officers stop you and you getout of the car but don't close the door, theymight search the car and claim that theythought you were indicating consent by leav-ing the door ajar. Also, if you say, "I'd ratheryou didn't search," they can claim that youwere reluctantly giving them permission tosearch. Always just say the Magic Words: "I donot consent to this search."

Questioning

Interrogation isn't always bright lights andrubber hoses -- usually it's just a conversation.

Whenever law enforcement officers ask youanything besides your name and address, it'slegally safest to say these Magic Words:

"I am going to remain silent. I want to see alawyer." This invokes legal rights, which pro-tect you from interrogation. When you saythis, officers (and all other law enforcementofficials) are legally required to stop askingyou questions. They probably won't stop, sojust repeat the Magic Words or remain silentuntil they catch on. If you forget your decisionto remain silent and start talking to thepolice, you can and should re-invoke theMagic Words, then remain silent. Do not raiseyour status as a medical cannabis patient,unless you are specifically asked about this orthe medicine has already been found.

Remember, anything you say to the authori-ties can and will be used against you and yourfriends in court. There's no way to predictwhat information the police might try to useor how they will use it. Plus, the police oftenmisquote or lie altogether about what wassaid. So say only the Magic Words and let alllaw enforcement officers and witnesses knowthat this is your policy. Make sure that whenyou're arrested with other people, the rest ofthe group knows the Magic Words and prom-ises to use them.

One of the jobs of law enforcement officers isto get information out of people. Officers arelegally allowed to lie when they're investigat-ing, and they are trained to be manipulative.The only thing you should say to officers,other than identifying yourself, are the MagicWords: "I am going to remain silent. I want tosee a lawyer."

Here are some lies they may tell you:

• "You're not a suspect -- just help usunderstand what happened here andthen you can go."

• "If you don't answer my questions, I'llhave no choice but to arrest you. Do youwant to go to jail?"

• "If you don't answer my questions, I'mgoing to charge you with resisting arrest."

• "All of your friends have cooperated, and

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we let them go home. You're the onlyone left."

Law enforcement can be sneaky, and thereare lots of ways they can trick you into talk-ing. Here are some scams they may pull:

• “Good Cop/ Bad Cop”: “Bad Cop” isaggressive and menacing, while “GoodCop” is nice, friendly, and familiar (usually“Good Cop” is the same race and genderas you). The idea is “Bad Cop” scares youso badly you are desperately looking for afriend. “Good Cop” is that friend.

• Prisoners' Dilemma: law enforcementofficers will tell you that your friendsratted on you so that you will snitch onthem. Meanwhile, they tell your friendsthe same thing. If anyone breaks downand talks, you all go down.

• Law enforcement officers will tell you thatthey have all the evidence they need toconvict you, but that if you "takeresponsibility" and confess, the judge willbe impressed by your honesty and go easyon you. What they really mean is: "Wedon't have enough evidence yet, pleaseconfess."

Jail is a very isolating and intimidating place.It is really easy to believe what law enforce-ment officers tell you. Insist on speaking witha lawyer before you answer any questions orsign anything.

Miranda Rights

The police do not have to read you your rights(also known as the Miranda warnings).Miranda applies when there is (a) an interro-gation (b) by a police officer or other agent oflaw enforcement (c) while the suspect is inpolice custody (you do not have to be formallyarrested to be "in custody"). Even when all ofthese conditions are met, the police intention-ally violate the Miranda requirement. Andthough your rights have been violated, whatyou say can be used against you. For this rea-son, it is better not to wait for law enforce-ment officers to inform you of your rights. Youknow what your rights are, so you can invokethem by saying the Magic Words, "I am going

to remain silent. I want to see a lawyer."

If you've been arrested and realize that youhave started answering questions, don'tpanic. Just re-invoke your rights by saying theMagic Words again. Don't let them trick youinto thinking that because you answeredsome of their questions, you have to answerall of them.

Arrest and Search Warrants

If the police come to your door with an arrestwarrant, step outside and lock the doorbehind you. Law enforcement officers areallowed to search any room you go into, sodon't go back into the house for any reason.If they have an arrest warrant, hiding won'thelp, because they are allowed to force theirway in if they know you are there. It's usuallybetter to just go with them without givingthem an opportunity to search.

If the police have a search warrant, nothingchanges—it's legally safest to say the MagicWords. Again, you have nothing to lose fromrefusing to consent to a search and lots togain if the search warrant is incorrect orinvalid. If they do have a search warrant, askto read it. A valid warrant must have a recentdate, the correct address, and a judge's ormagistrate's signature; some warrants alsoindicate the time of day law enforcement offi-cers can search. You should say the MagicWords whether or not the search warrantappears correct. The same goes for encounterswith any other government official who triesto search you, your belongings, or your house.

Infiltrators and Informants

Undercover officers sometimes infiltrateorganizations. They can lie about being offi-cers even if asked directly. Undercover officerscan even break the law and encourage othersto do so. This is not legally entrapment.

FBI, DEA, and Other Government Agents

The essence of the Magic Words "I'm keepingmy mouth shut until I talk to a lawyer" notonly applies to police but also to the FBI, DEA,INS, CIA, even the IRS. If you want to be nice

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and polite, say that you don't wish to speakwith them until you've spoken with yourlawyer or that you won't answer questionswithout a lawyer present.

Phone Calls in Jail

You're entitled to make a phone call from jail,but that doesn't mean you're going to getone right away. Jail telephones are oftenrigged to only make collect calls, althoughsome take coins as well. All telephone callsfrom people in custody can be monitored.You should not discuss anything that is secretor sensitive—circumstances of your arrest,people you are close to, any contact informa-tion for those people, etc.

Taking Notes

Whenever you interact with or observe thepolice, always write down what is said andwho said it. Write down officers' names andbadge numbers and the names and contactinformation of any witnesses. Record every-thing that happens. If you are expecting a lotof law enforcement contact, get in the habitof carrying a small tape recorder and a cam-era with you. Be careful—law enforcementofficers don't like people taking notes, espe-cially if they are planning on doing somethingillegal. Observing them and documentingtheir actions may have very different results;for example, it may cause them to respondaggressively, or it may prevent them fromabusing you or your friends.

Conclusion

People deal with law enforcement officers inall kinds of circumstances. You must make anindividual decision about how you will inter-act with law enforcement. It is important toknow your legal rights, but it is also impor-tant for you to decide when and how to usethem in order to best protect yourself.

DEMYSTIFYING THE LEGAL SYSTEM

Getting Out of Jail

There are several procedures for getting outof jail while a case is in process. Once arrested,

the judge will decide whether to offer youbail, bond, or release you on your own recog-nizance (OR).

Citation: Citing out is a type of release fromcustody in which you sign a citation, which isa promise to appear in court. It is usually aform that looks like a traffic ticket. Never signa piece of paper that is an admission of guilt.Read the form closely and make sure youknow what you are signing.

Bail: Bail is money you pay to the court, to beforfeited if you don't appear at scheduledhearings. A bail bondsman can put up themoney for you, but you have to give thebondsman a percentage of the total bail,which the bondsman keeps as payment.Often, there is a pre-set bail for misdemeanorsand lesser felonies that you can pay at the jailwithout waiting to go before a judge.

Bond: A bond is like bail except that you putup collateral instead of paying money.Collateral is something of value, like a car, ahouse, or property.

OR: Release on your own recognizance (OR,ROR or PR) is simply your promise to come tocourt for scheduled hearings without having toput up bond or pay bail. Usually you will onlybe released on your own recognizance if youcan prove that: (1) you are not a danger to thecommunity; and (2) you are not a flight risk orunlikely to return for court appearances.

You are likely to be kept in jail if you:

• Have an outstanding warrant for anothercharge

• Are already out on OR, bond or bail foranother charge

• Are currently on probation or parole• Have failed to appear for court dates in

the past• Have immigration problems

You are likely to be released from jail if youcan prove you're not a flight risk by organiz-ing documents for your first court appearancethat show the judge you have long term tiesto the community and are therefore unlikelyto skip town. Assemble as many of the follow-ing documents as possible. You need the orig-

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inals, plus a copy to give the court:

• Lease, rent receipts, utility bills, phone bills(both current bills and old ones to showthe time you've been at this residence)

• Employment contract, pay stubs, records ofvolunteer work

• School ID, school records• Proof of membership in community

organizations or churches• General character reference letters from

landlords, roommates, employers,teachers, clergy

• Character references with phone numbers• Letters on doctor's stationery about any

medical conditions or appointments thatnecessitate your release

It would be very difficult for your friends toassemble such materials while you are sittingin jail. It makes more sense for you to puttogether this packet in advance and keep it ina safe,accessible place. If you are arrested, yourfriends can bring these papers to your lawyer

so that you will have this material in court.

Going to Court

When do I go to court for the first time?

If you are in custody, the authorities are legallysupposed to bring you to court within twobusiness days or "as soon as reasonably possi-ble." If you are not being held in jail, your firstcourt date may be anywhere from one weekto a month after arrest. Court dates should bewritten on the citation or release forms.

What happens at the first court appearance?

The first hearing generally involves theappointment of counsel. You indicate who'sgoing to represent you: yourself, a privateattorney, or a court-appointed lawyer. Also atthe first hearing, you find out the chargesagainst you, and respond by making a demur-rer or entering a plea. This part is called thearraignment.

If you've been in jail up until your first courtappearance, the first hearing usually focuseson release issues: bail, bond or release onyour own recognizance (OR). This part iscalled a bail hearing. Even if you're notreleased the first time, the subject can bebrought up at later hearings. The appoint-ment of counsel, arraignment, and bail hear-ing can sometimes be separate appearances.Many people choose to waive the right to aspeedy trial at this time, called "waivingtime." This is mainly done to have the mostamount of time to plan your defense andbuild public support.

What are my choices when it's time to enter aplea?

Pleas generally fall into two categories: guiltyand not guilty. Normally, people only pleadguilty if they've negotiated a plea bargain. Ifyou do not reach or want a plea bargainplead "not guilty" and go to trial.

What happens if I don't show up for a courthearing?

If you miss a scheduled hearing, the judge willusually issue a bench warrant. If an individualwith an outstanding bench warrant gets intoany kind of trouble, like a traffic violation,s/he is subject to arrest. Judges usually acceptextreme excuses for missing a hearing, likefunerals or medical emergencies. Conflictswith school or work schedules are not accept-able excuses.

When does the trial happen?

When you do not waive time, trial usuallyoccurs a month or two after arraignment.When time is waived, trial might not beginfor many months. In both cases, trials areoften preceded by hearings at which written

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and/or oral "motions" are made and heard.

What goes on at trial?

At trial, you can testify if you want to. Youcan also put on eye- (and ear-) witnesses, andpossibly witnesses to testify about your goodcharacter. In addition, you have the right tocross-examine the witnesses against you, whowill probably be law enforcement officers.

You also get to make opening and closingarguments.

The judge may try to forbid you from talkingabout anything political, and even disallowmention of medical cannabis, on the groundsthat it would be irrelevant. Lawyers may beable to get around the judge's prohibitions,but there's considerable precedent (publishedresults of earlier trials) supporting the notionthat judges can forbid discussion of politicalmatters at trial.

Your lawyer will handle witnesses, makeopening and closing arguments, and filemotions. All you do is testify. Sometimes, peo-ple represent themselves (called pro per orpro se). In these situations, it's useful to havean attorney as advisory counsel or co-counselto help with technical legal matters.

You don't necessarily get a jury trial. Thealternative is a bench trial, or trial by judge inwhich the judge hears the evidence andreaches a verdict. The judge will also decidewhat will be allowed as testimony and evi-dence. In state court, you must be chargedwith at least a misdemeanor to get a jurytrial. In federal court, you must be chargedwith an offense that carries a maximum sen-tence of greater than six months to get a jurytrial. This requirement rules out all infractionsand most misdemeanors.

The trial ends with the verdict: guilty, notguilty, or a hung jury. If found not guilty, cele-brate. If there is a hung jury (the jury couldn'tagree on the verdict), then the prosecutorgets to decide whether to retry you or dismissthe case. Prosecutors often give up or offer areally good deal at this point. If you're foundguilty, then the judge sentences you. The

judge can either sentence you immediatelyafter the verdict or set a separate hearing forsentencing. You may be qualified to appealthis sentence or the original case ruling, soconsult with an attorney.

What happens at sentencing?

You can pack the courthouse. You get tomake a speech, because you have the right toallocution. This sentencing statement is nor-mally a chance to ask for mercy and explainmitigating factors, but activists often use it asa chance to discuss political matters, especiallyif they didn't get to speak their minds at trial.

Return of Property

In nearly every case where a patient or care-giver is cited or arrested for medical cannabis ,law enforcement will seize the medicine andoften other property they feel is connectedwith the alleged offense. If this happens andyou are found not guilty or have your chargesdismissed or dropped, you can petition thecourt for the return of your property. Thepolice typically do not return property with-out a court order. This requires a patient tofile a motion for return of property. ASA hasan ongoing return of property campaign andhas information on its website to help you filea motion.

If you are certain that the property has beendestroyed or is damaged beyond use, youmay want to sue the city or county responsi-ble for the property's damage or destruction.In this instance, you would be filing a civilsuit. This process can often take years to com-plete. In order to qualify for filing a civil suit,you must first file a claim form with theappropriate government entity shortly afterthe seizure. It may be helpful to have the civilsuit complaint drafted by an attorney, butthat is not necessary. Contact ASA about howto file a Tort claim, which is a civil suit againstlaw enforcement for reimbursement for thedestruction of property.

This information provided to ASA by the Midnight Special Law

Collective—www.midnightspecial.net.

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