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Now that Recreational Pot is Legal, Can California Cops Still Search my Car and Arrest Me?


By now you've all heard marijuana has become "legal in California", whatever that means. California courts will play a critical role in the coming years to safeguard the protections of the Fourth Amendment. Law enforcement will inevitably take part in shaping the law. One central question both police and the courts face is what effect, if any, legalizing recreational pot has on The Fourth Amendment's Search and Seizure Clause.

Generally speaking, police searches can be of your home, your vehicle, or your person. Your "person" means the inevitable pat-down search, which for all intents and purposes you must consent to. These searches are justified because officers may only "feel" for weapons to protect themselves, and a reasonable society is fine with that.

One level up is a search of your vehicle. If police lack a warrant, and you do not consent, they may not search your vehicle, unless you are under arrest. As to illegal contraband an officer sees in plain sight with his two eyes, you're out of luck. But what about legal marijuana? What if your eyes always look "watery" because you wear contacts, and they're red because you're tired? To a trained law enforcement eye, it may appear you are driving under the influence, and you may be arrested, your car searched, and your person or vehicle seized.

The answers are not that simple. What is marijuana impairment - - what constitutes being "too high" to drive - - and how can we scientifically evaluate it, particularly in a law enforcement context? Law Enforcement is struggling to keep up. The Law Office of Patrick Santos' DUI clients are reporting officers taking their pulse while staring deeply into their eyes. Of course client couldn't help but laugh, which led the officer to believe he may have had "the funnies" (another scientific side effect of being high).

In the alcohol case, the limit is clear: .08%. But there's no test for whether you're too stoned, right? Tolerance is also different for each person. As law enforcement struggles to keep our roads safe, it will be up to Defense Counsel and the Courts to work out which stops, searches, or seizures square with the Fourth Amendment to the United States Constitution.

If you've been accused of "driving while high" and arrested for DUI, it's critical you hire an attorney with sufficient search and seizure know-how. Patrick Santos is an aggressive advocate for the Fourth Amendment, and has California Supreme Court case law on his resume. (see People v. Troyer (2011) 51 Cal.4th 599.) He intends to spend the next few years aggressively defending the proper use of recreational marijuana. Call today for a free consultation.

#DUI #search #seizure

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