What are a citizen's rights in a police traffic stop? (Denver Post file)

Ask The Cannabist: Pulled over by police? Know your rights

Welcome to our Ask The Cannabist column. Clearly you have questions about marijuana, be it a legal concern, a health curiosity, a Colorado-centric inquiry or something more far-reaching. Check out our expansive, 64-question Colorado marijuana FAQ first, and if you’re still curious, email your question to Ask The Cannabist at askthecannabist@gmail.com.

Hey, Cannabist!
I am about to take an out-of-state road trip. What the heck is going on with our neighboring states with regard to stopping people with Colorado plates and searching for pot? I am hearing horror stories of families with their possessions spread out on the side of the road while cops search for illegally transported dope. With or without carrying under one ounce of pot, what are our rights, as Colorado citizens, when we enter neighboring states? I think it’s time our Governor Hick had some talks with neighboring governors to get them to lay off Colorado citizens unless they have a good legal reason to stop us because this sounds like we are being profiled. –Weary Traveler

Hey, Weary Traveler!
The police enforce laws within their geographical jurisdiction. So, legal Colorado cannabis becomes illegal when transported out of state. A recent police profiling lawsuit was brought by a Pagosa Springs man against Idaho State Police over an invasive roadside search caused by the po-po’s determination to find marijuana in his vehicle.

Police profiling is nothing new, so I asked defense attorney Lauren Davis for the scoop on the current situation. “Unfortunately, the rumors are true,” Davis said. “In my practice, I have heard of dozens of searches that appear to be illegal. However, an officer’s subjective reason for pulling you over, the fact you have a CO license plate, is irrelevant. If the officer witnesses any law violation, like failure to signal for a turn, they are legally entitled to pull you over.”

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What to do if this happens to you? According to Davis, “The officers are allowed to search the vehicle if they have a specific, articulate reason (probable cause) to believe the car contains marijuana or other contraband. Officers will say they smell an odor of marijuana. In most jurisdictions, this will entitle them to detain you pending further investigation. Depending on local laws, smell alone is likely enough to constitute probable cause for a search. If they have probable cause, police are allowed to search an automobile without obtaining a warrant prior to a search.”

Davis advises being proactive in using your rights. “You do not have to answer any questions. The driver must provide his/her drivers’ license, (proof of) insurance and registration. Answer those basic questions and politely tell the officer you are invoking your right to remain silent and will not answer any other questions.”  Don’t allow the stress from the situation to cause you to nervously chit-chat with the officer. The police officer will not remind you it’s in your best interest to remain silent.

“You also have a constitutional right to refuse an officer’s request to search your car,” Davis continued. “If you give permission for the officer to search your vehicle, you essentially give up any challenges you have to the search.  If police search your car without your permission, you will be better able to challenge the evidence obtained during the warrantless search.  It is very hard to show your consent was invalid. If you are asked to get out of your car by police, you must do so.”

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If you do have a police encounter like this, immediately write down all the details of the incident. “This is the best way for a lawyer to successfully challenge an illegal search of your vehicle,” Davis said.

Note the time you were pulled over, all the questions and responses and the time you were allowed to leave. Keep track of the location of your license, vehicle registration and insurance card during the traffic stop. Have any passengers write down a narrative as well. (If you are thinking about recording a police incident on your smartphone, here’s what you need to know, according to the American Civil Liberties Union. Do your research because laws vary by state, and some use wiretapping laws for regulation.)

As you mentioned, if you want to take the issue to Gov. Hickenlooper, his contact info can be found here.

Additionally, here’s more information from the ACLU regarding being stopped by local police or other law enforcement agencies.

Know your rights and be careful! XO

Get more answers: Check the Cannabist Q&A archive for a wide variety of topics: traveling, employment issues, property/landlord cannabis disputes, growing, social etiquette, drug testing, first-time shopping advice and more.