Written by attorney Michael Peter Bassett Jr.

New York’s Plain View Marijuana Law: Weeding Through the Haze

Being a Marijuana user is a lot hazier than it was during the free love era when everyone knew enjoying a marijuana cigarette was illegal. Thanks to the changing of people in power from people who would never admit use, to others who put it to their lips but didn’t inhale (instead preferring to use a cigar in a more intimate way), to the present where our leaders have admitted prior marijuana usage. Marijuana laws are changing. What concerns should users have? Is the government baking up new laws? Most people don’t know New York was one of the first states in the nation to decriminalize the possession of marijuana back in 1977. However, in 2011, 50,000 were arrested for possession in New York City alone and in 2014, 28,600 were arrested. Despite the decline it was more than any other city in the world. This raises the question: How does one get arrested for a crime committed in 2014 that has not been a crime since 1977? The answer is smoky but it all comes down to incredulous police work. Although the 1977 Act decriminalized possession of more than 25 grams of marijuana it is still a crime to possess marijuana within “public view”. The Legislature did not wish to “encourage or condone the recreational use of marihuana” [L.1977, c. 360, § 1] by decriminalizing the smoking of marihuana in public. Thus, the law provided that it would constitute “criminal possession of marihuana in the fifth degree,” a class B misdemeanor, to possess any quantity of marihuana in a “public place” if the marijuana was burning or open to public view [Penal Law § 221.10(1)]. In short, while walking around Times Square with 24 joints having a gram of marijuana in each, safely inside your pocket, may only be a violation under Penal Law § 221.05, the smoking or exposure of a joint with any amount of marijuana in a public place is a criminal misdemeanor. A “public place” is defined by a cross-reference to the definition of that term in Penal Law § 240.00. See People v. Robinson, 265 A.D.2d 812, 695 N.Y.S.2d 848 (4th Dept., 1999) (parking lot was a “public place”); People v. Butler, 195 Misc.2d 228, 757 N.Y.S.2d 674 (N.Y.City Crim.Ct., 2003) (the inside of a car parked on a Manhattan street constitutes a “public place”). Police officers have abused this “public view” exception for years. Officers would ask individuals to empty their pockets. Most people would feel obligated to comply with the officer’s requests. The officer knows this. By “voluntarily” emptying their pockets, the individual has put the marijuana into public view making them culpable under the plain view exception resulting in a criminal misdemeanor. Often overlooked and rarely argued is the fact that the officer has coerced an individual into committing a crime. Acts of coercion by police is possible “entrapment”, a defense. This situation is different than an officer searching the individual’s pockets and finding the marijuana, because the officer has put the marihuana in public view and not the individual, resulting in only a possession violation (if under 25 grams).

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