Many people are unaware that SCOTUS recently removed the right of private citizens to sue officers who omit their Miranda warnings before custodial interrogation. This could have enormous consequences for people arrested for cannabis violations.
What's a Miranda Warning?
A Miranda warning informs a detainee of their rights when taken into custody and questioned.
The Miranda warning informs the detainee that:
- They have the right to remain silent.
- That anything they say can be used in court.
- They have the right to an attorney (provided they cannot afford one).
Why the Miranda Warning is Important for Cannabis Consumers
The Miranda warning protects citizens' Fifth Amendment right against self-incrimination during police interrogations and must be fulfilled before custodial interrogation begins. If the officer does not provide this warning, then statements made without the warning may be inadmissible in court.
I say "may" because there are many exceptions under which courts could still admit statements obtained without a Miranda warning. Here are the four most important exceptions:
- Impeachment: If the detainee's court statement contradicts their prior unwarned statement, it is admitted to challenge their credibility.
- Public Safety: If the statement was made in a situation where immediate questioning was needed to protect public safety, such as locating a weapon.
- Voluntary: If the statement was voluntary and not coerced.
- Physical Evidence: Information leading to physical evidence can still be admissible under some circumstances, even if obtained from an unwarned statement.
As you can see, Miranda warnings can be quite flimsy, having been eroded through the years by one precedent or another. The threat of civil litigation was one of the few ways cannabis detainees had to fight back against unjust interrogations.
Now, the threat of civil litigation is gone. This has potentially vast implications, especially considering the potential crackdowns cannabis users face with the closing of the hemp loopholes, increased federal restrictions on state-legal cannabis, and the resurgence of regressive policies nationwide despite the promise of rescheduling.
How Did SCOTUS Change Miranda Warnings?
In June 2022, SCOTUS ruled in Vega v. Tekoh that people can't seek civil damages against law enforcement for failing to provide a Miranda warning. This doesn't eliminate the requirement to provide this information to detainees, but it does limit detainees' ability to enforce these rights.
Justice Samuel Alito wrote the opinion, stating that a violation of Miranda does not constitute a violation of the 5th Amendment right against compelled self-incrimination. Alito said the Miranda warnings should be considered a prophylactic measure to protect that right. Thus, failure to provide this warning does not, by itself, provide a basis for civil litigation.
Justice Elena Kagan wrote the dissent arguing that people whose rights are violated by failure to receive proper warnings would no longer have the ability to seek redress.
This ruling could disincentivize law enforcement from providing a Miranda warning if there are no consequences for the omission.
Knowing Your Rights
Driving is very complicated for cannabis users. Laws about DUI are ambiguous and varied by state. So, I asked Craig and Marc Wasserman, a.k.a the Pot Brothers at Law to share their updated advice on what to do if you're pulled over with (or without) cannabis.
"When pulled over (with cannabis in your possession or without) you want to remember these VERY IMPORTANT 29 Words known as The Script©:
- Why Did you Pull Me Over?
- I'm Not Discussing My Day.
- Am I Being Detained or Am I Free to Go?
(If detained you must say)
- I Invoke the 5th
- I Want my Lawyer
Then you Shut the F&%# Up®
When saying these 29 words do so politely. These words will help protect and preserve your Constitutional and Civil Rights, Remedies and Defenses for court afterwards.
Here is a step by step pull over:
1. See the lights immediately pull over.
2. Have license, insurance and registration ready (we suggest having it clipped to the visor before you start driving).
3. Roll the driver side window down just enough to pass documents through (if you have tinted windows, roll them all the way down).
4. When the officer approaches, start with The Script, Why did you pull me over?
5. If the officer insists on seeing license insurance registration first then hand it over.
6. No matter what questions the officer asks, you say I'm not discussing my day.
7. If the questions keep coming you say Am I being detained or am I free to go?
8. If you hear get out of the car you're detained, you say I INVOKE the 5th and I want my lawyer and exit the vehicle. You must exit vehicle under Pennsylvania v Mimms.
9. Once out and being detained you simply keep your mouth shut #stfu®
10. If the officer wants to search the vehicle say I do NOT CONSENT to search. NEVER CONSENT (this way your attorney has a chance to fight the search as illegal later in court).
11. If transporting cannabis, keep it in the trunk. If not, keep it in a locked box furthest away from the driver in the back of the vehicle.
12. It's important to know that in California the smell of Cannabis alone is not probable cause to search (This is true in some other states as well. Google your state).
It's also important to know the DUI rules in the state you are driving in:
- In California (and most states) the Field Sobriety Tests are voluntary. NEVER DO THEM (Google your state).
- In California the breathalyzer on the side of the road is voluntary DO NOT DO IT (GOOGLE YOUR STATE).
- IN CALIFORNIA AFTER ARREST YOU MUST DO CHEMICAL We suggest BLOOD (if you refuse that the DMV revokes license for 1 year. Again, Google your state)
You also always want to film the police during a pull over."
Pot Brothers at Law
www.potbrothersatlaw.com
www.pbalmerch.com
(855)WASSLAW
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The information in this article and any included images or charts are for educational purposes only. This information is neither a substitute for, nor does it replace, professional legal advice or medical advice, diagnosis, or treatment. If you have any concerns or questions about laws, regulations, or your health, you should always consult with an attorney, physician or other licensed professional.
