Legal, But Not For Everyone – How Some California Police Departments Disproportionately Enforce Cannabis Laws

Written by BlackbirdGo August 7, 2018
The History

Disclaimer: Keep out of reach of children. For use only by adults 21 years of age and older.

When California residents voted in favor of legalizing cannabis, many expected sweeping changes to the state’s legal system. Even in typically-progressive enclaves like California, drug laws have long been used to disproportionately target Black and Latinx communities.

According to a 2016 report from the ACLU, almost one in four people who have been convicted across the state for cannabis-only offenses were Black, despite the fact that only about 6% of Californians are Black. In total, Black individuals across the state were cited for cannabis-related offenses at nearly four times the rate that white individuals were cited. That same report found that Latinx individuals across California were cited for cannabis-related offenses 1.5 times more often than white individuals. These numbers are particularly interesting when compared against statistics which show that cannabis use trends at comparable levels across all demographics.

CA Prop. 64 was passed in November 2016, the same year those statistics were released by the ACLU. Most prosecutors have generally taken cannabis crimes off the table over the ensuing years, though that does vary from one jurisdiction to the next. Generally speaking, juries in California aren’t interested in pursuing cannabis charges anymore, so neither are prosecutors.

But that doesn’t mean you can’t still get into trouble with the law, even if you’re in legal possession of a small quantity of cannabis in California.

What Does The Law Say?

“You see this come up time and time again with Fourth Amendment issues - search of vehicles,” says Jeffrey Krasnoff, a California public defender. “There’s a [State] Supreme Court case called People vs. Waxler which says that when an officer smells marijuana coming from a car, even if that person has a med card or if it’s legal to possess that quantity in that state, it still creates a reasonable suspicion of criminality, allowing the officer to search the vehicle. It still allows the cops to go after certain people.”

Krasnoff said that he hasn’t seen cannabis possession charges pursued in court since legalization, but he added that some police officers still regularly use legal cannabis possession as a pretextual way to search a vehicle and/or an individual after a traffic stop.

In other words, the police are still allowed to search for evidence of a crime being committed based solely on an individual’s legal possession of up to one ounce of cannabis - even if that individual hasn’t said or done anything suspicious. The Fourth Amendment protects individuals against unreasonable searches and seizures, but the police are already allowed to perform pat-downs for weapons. Furthemore, having cannabis in your vehicle, despite its legal status, can give the police additional justification to search your belongings.

Searches and Seizures

Once a police officer has decided to search a vehicle or pat someone down - ostensibly to find weapons - anything else they find may be considered admissible evidence in court. In fact, that pat down is actually how many drug possession arrests are initiated.

“But they have to say in their report that they thought [a pipe or baggie on someone’s person] was a weapon,” Krasnoff said. “If they reasonably believe it’s not a weapon they’re not allowed to pull it out, so they [the police] play all kinds of knowledge games.”

Statistically, police searches and stop-and-frisk tactics tend to disproportionately target minority communities.

“With marijuana laws - if everyone’s doing it [smoking cannabis], it’s an incredibly powerful tool for police because it gives them the power to engage with whoever they want to,” Krasnoff said. “Power reveals your inner biases as you’re allowed to make these decisions and judgment calls.”

Prior Convictions and the Law

Felony charges prohibit convicted individuals from voting, owning a firearm, or holding public office. But even relatively minor misdemeanor charges, including cannabis-related convictions, are often used against individuals as a pretext for a search - even though they’re not supposed to be.

“Legally, cops aren’t supposed to be allowed to rely on prior convictions in determining charging, so they don’t mention that in their police reports,” Krasnoff said. “Usually they’ll say something like, ‘I recognized so and so from the community and initiated a stop and frisk,’ that sort of thing.”

That ability to get around the law and use prior convictions against someone may be part of the problem. If an individual has been targeted by a police officer because of racial bias and that individual has a prior conviction, there’s a chance that their arrest record may influence how the rest of that interaction with police plays out.

Getting a Clean Record Back

While some voters may have assumed that legalization would include the statewide expungement of prior convictions, the process is actually significantly more nuanced than that.

Someone who’s been convicted in the past of something that’s now legal - in this case, cannabis possession, consumption, or cultivation - can get their record amended so that those prior convictions aren’t used in any new interactions with law enforcement and the judicial system. But it won’t happen automatically.

Amendments and revisions to criminal law are treated as retroactive changes, meaning anyone with a prior conviction will need to request that the court clear their record. The process depends on an individual’s specific conviction record and the laws that affect that record.

California Penal Code 1203.4 states that anyone who’s been convicted of a felony, but has undergone probation and stayed out of trouble throughout the course of their probationary period, may petition the court to have their previous felony charges retroactively reduced to a misdemeanor.

Anyone who was initially convicted on a misdemeanor charge - including cannabis-related charges - may be eligible to have that conviction expunged from their record altogether if they’ve meet the court’s criteria for good behavior.

Applying to have a previous conviction expunged may be a confusing process for some individuals. It’s possible to file the paperwork without an attorney, but if you’re unsure about the process, it’s best to get assistance from someone who knows the law. You can contact your county’s Public Defender’s Office, or stay tuned for our follow-up piece in which we’ll explain step-by-step how to have your previous cannabis convictions expunged in California and/or sealed in Nevada.