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Does Admitting to Having Marijuana Make a Search Legal?

A search where one has a reasonable expectation of privacy conducted without prior approval by a judge (in the form of a warrant) is unreasonable under the Fourth Amendment to the U.S. Constitution with the exception of a few situations.  Such exceptions arise quite frequently in day-to-day police investigations. Arizona v. Gant (2009) 556 U.S. 332, 338.
The Reader’s Digest Version:  A warrantless search of someone incident to an arrest can make such a search proper even the suspect is ultimately not arrested, but merely cited and released.  While the summary herein involves federal law, not state law, it is a tricky argument to make in state court and probably should not be attempted.
In the case of Travis Pope, arrested in El Dorado National Forest in Northern California, the “Search Incident To An Arrest” exception to the warrant requirement was tested on appeal to the United States Court of Appeals for the Ninth Circuit (U.S. v. Travis Pope 2012 DJDAR 9839).  In a clever opinion worth reading for the precedent it seems to set, the warrantless search by police was upheld as proper.

On the evening of August 16, 2008, Forest Law Enforcement Officer Ken Marcus was dispatched to a gathering of people in the El Dorado National Forest.  Apparently, there was a report of loud music and the use of a public address system.  There were many people partying, too.

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Mr. Travis Pope was one of the people at the gathering.  Mr. Pope approached Officer Marcus after Marcus arrested one of Pope’s friends.  Officer Marcus allegedly noticed immediately that Pope was under the influence of marijuana.  Consequently, Marcus asked Pope if he had smoked marijuana that evening.  Pope admitted he had.  Marcus then asked Pope if he had any marijuana on him.  Pope said no.

Marcus then ordered Pope to empty his pockets.  Pope then admitted that he did have marijuana on him and emptied his pockets on the hood of the police car.  Pope was then cited for and charged with a violation of 21 U.S.C. § 844 (a), federal misdemeanor possession of marijuana.  He was not arrested.

Once in court, Pope’s attorney made a motion to suppress the evidence Pope produced from his pockets.  The argument was that it was a warrantless search and therefore improper.  There was no arrest, so it could not be a search incident to an arrest.  Moreover, the officer’s safety was not at issue.  

The magistrate judge hearing the motion denied it on the ground that the search was a valid search incident to an arrest, even though no arrest took place.  Frustrated, Mr. Pope then pleaded guilty, but reserved his right to appeal the denial of his suppression motion.

Pope then appealed the denial of his motion to suppress to the U.S. District Court for the El Dorado area.  Pope, however, lost again.  The district court affirmed the magistrate’s ruling at the trial court, but on grounds that the search was supported by probable cause and incident to an arrest.

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Pope did not give up.  He appealed on up to the U.S. Court of Appeals for the Ninth Circuit.  There, Pope argued that because there was no arrest, the “search incident to an arrest” exception could not apply and there was really no probable cause to search him, or at least the officer conducting the search certainly did not articulate sufficient facts to establish probable cause.

The Court of Appeals seemed to agree with Pope’s arguments.  However, it affirmed the two lower counts, reasoning that while indeed no arrest occurred, and thus the “incident to an arrest” exception did not apply, there really was no invasion of privacy issue.  Therefore, the rights protected by the Fourth Amendment were not an issue.  Cleverly, the Court of Appeals explained that this was so because the officer did not invade, i.e. stick his hand in Pope’s pant pocket.  The officer only asked to look at the contents of the pocket, which Pope agreed to show.

The Court of Appeals noted that since Pope agreed to show the officer the contents of his pockets, Pope was not asserting an expectation of privacy in the contents.  Therefore, it was not a search at all and no warrant was required.  This reasoning meant the Fourth Amendment did not apply at all to Pope’s case.

This case should be a loud warning to all defense attorneys seeking to suppress evidence under the Fourth Amendment, as it suggests that the fundamental requirement to having the Fourth Amendment apply at all is the assertion of an expectation of privacy.  Following such an assertion, the exceptions to the Fourth Amendment then must be evaluated.

The citation for the Ninth Circuit opinion discussed above is U.S. v. Travis Pope (9th Cir. 2012) 686 F.3d 1078.

For more information about admissions to police and how their effects, click on the following articles:
  1. If You Receive Miranda Warnings, Your Talking and Subsequent Silence to Certain Questions Can Be Used Against You As Adoptive Admissions
  2. An Admission Is Inadmissible If After an Illegal Search As the Fruit of a Poisonous Tree
  3. Confession Is Inadmissible When Probation Officer Promised Shorter Sentence If Probation Is Waived Right to an Attorney
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