Commentary: What Not to Do if You Grow Marijuana and Police Visit You

by John Calvin Jones, professor of law, American University in Bosnia and Hercegovina

[Editor's Note: Last week we reviewed Flex Your Rights' new video, "10 Rules for Dealing with Police." Coincidentally, this piece from law professor John Calvin Jones came in over the transom at the same time. Like Flex Your Rights, Jones, too, is attempting to educate Americans about how to effectively exercise their constitutional rights -- and what can happen to you when you fail to do so. Jones' rules are a little different from Flex Your Rights' "10 Rules," but both are saying essentially the same thing. Here we present Jones' analysis of the case of one New Jersey man and what happened to him when he failed to exercise his rights.]

The latest case of a naïve marijuana grower comes out of New Jersey, where, on March 15, an appellate court affirmed a ruling from 2007 which denied a motion to suppress evidence: a seizure of a lot of weed from the house of one Brian McGacken. Recent headlines on Slate and other web sites emphasized why the police arrived at McGacken's house in the first place -- apparently he and his girlfriend were loud while having sex -- so loud that police received an "anonymous 911 call." Having the police come to your home because of loud sex could lead to amusing anecdotes down the years, but it is doubtful McGacken is finding anything to laugh about.

Instead, we have a scenario where police enter the house, follow McGacken upstairs (without being invited), smell pot, then start asking questions, and well, we know the rest. Before reviewing the legal arguments and ultimate ruling of two New Jersey Appellate Division judges (Lihotz and Ashrafi) in New Jersey v. McGacken, let me start with the errors of Brian McGacken.

According to the opinion, as admitted by McGacken, when police arrived at his place to investigate the 911 call, McGacken invited the police into the foyer. Rule #1: If you are growing any plants, much less have any weed in your domicile, do not invite the police inside. Then, after McGacken explained that any reports of screaming were accurate -- as then confirmed by his sex partner, police asked McGacken for ID. Rule #2: If you are growing weed in your house, speak to the police as little as possible. And since the Supreme Court ruling in Hiibel v. Nevada, 542 U.S. 177 (2004), unless you live in one of 20 states that have a law requiring you to identify yourself, which NJ does not, then you do not need to say anything to the police. That is, it is not a crime to refuse to answer or ID yourself -- even the Appellate Court in McGacken's case noted that. Regardless, if you do live in one of those self-ID states, just give your full name -- do not lie -- and then say nothing more.

By the way, the Supreme Court qualified the issue of ID laws in Hiibel, noting that one must identify only when police say that they have reason to believe that a person is suspected of committing a crime. If you ask the police if you are suspected of a crime, and they say no, as was the case with McGacken, not only are you not required to show ID, but you should then apply Rule #3: Always ask the police, "Am I free to leave?" If they say "no," but are still in your house -- tell them to leave, that you do not consent to their presence or search, and get the phone and tell them that you are calling your lawyer. (The reason you say that you are calling a lawyer is two-fold: first, it puts the cops on notice that they should go harass someone else; and second, while they will tell you that you cannot use the phone, they know that one can always have counsel present while in custody -- so you can surely have advice of counsel when you are not in custody). Of course, you do not have to call any real lawyer, just call your own voicemail and make a recording of the events in a loud voice saying stuff like: "The police are in my house/apartment without a warrant and no probable cause, they are not invited, I have asked them to leave, I do not consent to any search, etc." If after all that, the police still do not leave, just sit there -- and be quiet.

Needless to say, McGacken did not follow rules #2 or #3 either. But, according to the court opinion -- McGacken admitted he went upstairs to get his ID, and was followed by New Jersey State Trooper Thomas Holmes.

According to the opinion, "Trooper Holmes testified that he followed defendant upstairs for two reasons -- to protect his own and his fellow trooper's safety and to make sure there was no other person in the home in need of aid." But did he really?

Earlier in the opinion, the judges wrote that:

"Trooper Thomas Holmes and a fellow trooper responded [to the 911 call]. [Once on the scene, they] heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police. Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation."

If the two occupants of the house said that they are the only two in the house, and the officers believe them, then there is no reason to make sure there is no one else in the house "in need of aid." Further, if the police accept the explanation for the screaming, and the police are ready to end a routine follow-up to an unnecessary 911 call, then there is no reason to suspect that Trooper Holmes or his fellow trooper would be at risk from the sex screamers. But if the police thought that McGacken was lying or acting suspicious, then there might be cause to keep an eye on McGacken. But, according to the ruling, that's not what police thought.

"No evidence suggested [that] the police had any suspicion of criminal activity by defendant or his girlfriend, or [that the police] wished to conduct a search for evidence of crime. Trooper Holmes testified that... nothing that defendant and his girlfriend did or said downstairs raised suspicion of criminal activity."

The police and the court admit that Trooper Holmes lied when he testified there was no suspicion of criminal behavior. He could not have believed the report of the two lovers, but still had cause to look around to see if someone were in need of assistance. And thus, because he did not believe their explanation, Holmes implied that the two were hindering or obstructing an investigation, an arrestable offense.

But as the court recognizes that Holmes declared that he had no suspicions, that means Holmes believed no one else was in the house -- therefore there was no need to go upstairs in the name of what the court references as an exigent circumstance, of the sort where police may enter a house without a warrant so as to preserve life or prevent serious injury. Again, because Trooper Holmes testified that he had no suspicions that McGacken and his girlfriend were lying, he had no basis to justify a warrantless intrusion.

But that's not how the appeals court ruled. The New Jersey judges referred, over and over, to the idea of this type of warrantless search as necessary to save lives -- and not search for evidence of a crime. So, what did Trooper Holmes do and see when reaching the upstairs bedroom with McGacken? First the court says that Holmes smelled marijuana.

What happened next for this Trooper -- who was not searching for evidence of a crime, but merely responding to a perceived exigency to save a life? According to the court:

"Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. [Holmes] asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw, in plain view, a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest."

Thus, two New Jersey Appellate Court judges decided to abandon all pretense of reason. Without comment they claim that Holmes had to go upstairs to find someone to rescue, though he did not suspect anyone was in need of aid.

McGacken's misadventure leads us to yet another rule, Rule #4: When police ask you something, do not answer. Police are not your friends. They use drug arrests -- the easy pickings -- to gain fame (for some reason local press usually lauds these cops) and fortune. All states and the federal governments have seizure laws that allow law enforcement to take cars, houses, bank accounts, and boats on the mere suspicion that you are engaged in drug-related criminal activity. You can even be acquitted or have charges dropped, yet the cops can keep your stuff.

But more importantly, getting back to Rule #4 and anything related to a search of your person, house, car, or stuff, note what the court did not report that Holmes did after seeing McGacken move the tray? The police officer did not go over and grab the tray. Even though the court said that Holmes was within his right to make a warrantless search given the exigent circumstance of trying to save someone in imminent harm -- and not intending to seize evidence or make an arrest, Holmes did not even try.

Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession. That leads to Rule #5: Never consent to a search. Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession! That is why you are not supposed to answer their questions -- just call the lawyer (see Rule #3 above).

Holmes was careful to say that in no way did he look under the couch to see what was on the tray. However, Holmes testified, and the court explained, that the seized marijuana plants were "in plain view" (meaning not in a closed space, drawer, etc.). Even Trooper Holmes knows Rule #6: If it is in plain view, it belongs to the police, not you!

This exercise in legal sophistry and hypocrisy is not to advocate that anyone should violate state or federal laws -- especially drug laws. Instead it should serve to emphasize that every person should know the limits, guidelines, and rules on constitutional provisions about search and seizure. Even in those states that allow licensed grow operations the Obama administration is still making busts. If you want to stay out of prison, or reduce your chances of getting busted, follow the general advice of The Clash and "know your rights."