Back in July, I published this first post concerning spice, or synthetic marijuana, and predicted that Mississippi would outlaw spice when the legislature meets next year. I was off in my prediction. IT IS NOW ILLEGAL TO SELL, USE, OR POSSESS SYNTHETIC MARIJUANA IN MISSISSIPPI.
Responding to requests from law enforcement agencies, local governments, and the Attorney General, Governor Barbour added a bill banning spice statewide to a previously-scheduled special session of the state legislature. On Friday, August 27, 2010, the legislature considered and passed Senate Bill 2004 (See it here), and the Governor quickly signed it, thus making the sale, use, and possession of synthetic marijuana illegal statewide in Mississippi.
The law simply adds several formulations of synthetic marijuana to the list of illegal drugs on the drug schedule, and so the same laws that apply to marijuana now apply to “spice.” In addition, the law gives retailers of these items until October 1, 2010 to turn their stocks over to law enforcement, or dispose of them legally in some way.
OPINION TO FOLLOW. FEEL FREE TO IGNORE.
As our elected officials, we have given the Governor and the Legislature the power to determine what is bad for us, and if they say that synthetic marijuana is bad, then so be it. If you are charged with any crimes related to synthetic marijuana then call me and we will deal with it. I used to think I wanted to be an elected official one day, but I got over it. I’m more of a “rubber meets the road” practitioner, rather than one that ponders politics and the possible “effects on society” of different issues. As we used to say in the Marine Corps, that is “way above my pay grade.” But from a pure criminal defense perspective, here is the problem:
One of the most common scenarios in criminal law is the automobile stop. So many criminal cases begin with the seemingly simple act of a law enforcement officer pulling someone over. But in fact there are literally volumes of cases that interpret what a law enforcement officer is entitled to question you about, to search, and to seize, when you are pulled over. There is an old saying among cops when confronted with an automobile stop: “If it smells like weed, that’s all you need,” or “If it smells like weed, you may proceed.” In other words, probable cause to search the car, the occupants, and to intrude on all kinds of potentially private and ostensibly constitutionally-protected areas is allegedly established if the car “smells funny.”
Almost every week, I hear officers say that a car was pulled over for “weaving,” “not observing rules of the road,” (which ones?), or, my favorite, “flickering tag light.” It will be interesting to hear an officer testify that he smelled “what he thought could have been a substance that is designed to mimic the effects of marijuana,” and thus impounded the car, and arrested the occupants. What does that smell like?
I have no problem with making things illegal, like spice, or texting while driving (not yet illegal in Mississippi, by the way), or failure to use seatbelts, as long as they are rationally related to a common good. But when government uses a seemingly minor incident as a pretext for further intrusions into our everyday lives it makes me cringe, because I see this use of power from where the “rubber meets the road.”