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  1. #1
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    Default Unlawful Possession of Marijuana

    My question involves criminal law for the state of: New York

    So I got busted in my dorms, in NY, yet I want to talk about the Constitution and law rather than my case. Are there any legal experts here who would care to look at the following and determine whether or not it would have any type of effect in court?

    If we are to agree that the Due Process Clause (14th Amendment) makes it so certain rights under the Bill of Rights apply to the States, couldn't one argue that...

    Under the 4th Amendment, we have a right to privacy. While the word "privacy" is not specifically written, it is generally accepted to be implied. The courts have ruled over and over again that this is correct (as far as I can tell).

    "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
    -Stanley v. Georgia

    "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”
    - Lawrence v. Texas

    The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions
    -Cruzan v. Missouri Department of Health

    Thus, wouldn't marijuana go hand in hand with this? As long as you are not smoking in public, shouldn't you be protected under the 4th Amendment? Couldn't you also argue that if you can deny medical assistance (Cruzan v. Missouri Department of Health ), that you can provide your own (medical marijuana)?

    The 4th Amendment gives us a right to unreasonable searches and seizures. Seizing me or my property (marijuana, paraphernalia, and my money in court) for marijuana possession or use in my own home would have to be considered unreasonable, simply because of my right to engage in private activities which don't effect the public in the slightest.

    "[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
    -Meyer v. Nebraska.

    Common law dictates that I have a right of privacy, and even further generally states that my home is my castle and in my home, my rule goes. How can any court of law, with a straight face, say I was guilty of criminal activity when they themselves state my home is my castle (if common law is to be said to be valid)? How can anyone tell me what I can or cannot do in the privacy of my own home, as long as I am not hurting anyone?

    §14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated. (Formerly §16. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)
    - NYS Constitution


    So the common law which founded this country is valid under NYS Constitution, and anything which violates Constitution is abrogated, and the right of privacy under common law does not violate the Constitution. So, shouldn't laws against private marijuana use be abrogated, as they clearly violate the common law this country was founded upon, and subsequently the Constitution according to what I previously stated?

    -------------------

    privacy. The condition or state of being free from public attention to intrusion into or interference with one's acts or decisions.
    -Black's Law Dictionary.


    § 2. Supreme sovereignty in the people. No authority can, on any pretence whatsoever, be exercised over the citizens of this state, but such as is or shall be derived from and granted by the people of this state
    - NYS Civil Rights

    Don't these two seem to contradict each other? We (individually) are the supreme sovereigns, and unless the people grant the government power over us (I never granted the government to have the power to regulate what I put into my body, and even if I had tried to, my rights are inalienable, and what I put into my body is my liberty...thus it cannot be taken away). Yet, my right of privacy states I have the right to be private from the people. So how can the people bypass my privacy rights, by granting away my sovereignty rights?

    Edit: Couldn't it be argued that these laws also become null and void due to the fact they were founded on discriminatory principles? What ever happened to "equal protection?" These laws violated the civil rights of Mexicans and Negroes over discrimination, thus how can they be said to stand up to Constitutional scrutiny?

    "Marijuana influences Negroes to look at white people in the eye, step on white men's shadows and look at a white woman twice." (Hearst newspapers nationwide, 1934. )

    "There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana use. This marijuana can cause white women to seek sexual relations with Negroes, entertainers and any others." - Harry Anslinger

    "Reefer makes darkies think they're as good as white men." -Harry Anslinger

    "...the primary reason to outlaw marijuana is its effect on the degenerate races." - Harry Anslinger

    These were the type of arguments given to Congress during the legislative meetings to pass the anti-marijuana bills.

  2. #2
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    Default Re: Unlawful Possession of Marijuana

    Uh huh.

    Nice try.

    Won't work... you really didn't think you FINALLY came up with the silver bullet to make pot legal, did you?

    You do have a right to privacy. However, police, when possessed of either a search warrant or probable cause, may invade your privacy to pursue criminals.

  3. #3
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting cyjeff
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    Uh huh.

    Nice try.

    Won't work... you really didn't think you FINALLY came up with the silver bullet to make pot legal, did you?

    You do have a right to privacy. However, police, when possessed of either a search warrant or probable cause, may invade your privacy to pursue criminals.
    You completely missed the point.

    Maybe you should reread the post, as I'm not talking about cops having the right to invade our privacy to find criminals, but the fact that regardless of public opinion, our home is our domain and supporting the "general welfare" (by banning marijuana in public) can't apply to a person's private domain.

  4. #4
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting Scofield
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    My question involves criminal law for the state of: New York

    So I got busted in my dorms, in NY, yet I want to talk about the Constitution and law rather than my case. Are there any legal experts here who would care to look at the following and determine whether or not it would have any type of effect in court?

    If we are to agree that the Due Process Clause (14th Amendment) makes it so certain rights under the Bill of Rights apply to the States, couldn't one argue that...

    It is TRUE, the 4th AM has been incorporated to apply to the states by and through the 14th AM: Wolf v. Colorado, 1949: The Exclusionary rule was made applicable to the states in Mapp v. Ohio, 1961. So the "full force" of the 4th AM applies to the states.

    Exacty HOW were you busted? Were you observed smoking it when the door was opened by a roommate? Elucidate further!

  5. #5
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting BOR
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    It is TRUE, the 4th AM has been incorporated to apply to the states by and through the 14th AM: Wolf v. Colorado, 1949: The Exclusionary rule was made applicable to the states in Mapp v. Ohio, 1961. So the "full force" of the 4th AM applies to the states.

    Exacty HOW were you busted? Were you observed smoking it when the door was opened by a roommate? Elucidate further!
    I was in my dorm room at University (it's in NY, but I don't know if I should state exactly which one), door closed, watching a moving with my roommate and a friend. We were vaporizing (did one bowl with the Volcano), and then an RA said she smelled marijuana, and needed the opinions of two others (usually they only need one other opinion, but the first RA she asked said she didn't know....which leads me to believe the RA who first smelled it was lying because she is the most anti-weed RA in my building, and the other RA she asked that gave approval is anti-weed as well) before calling the cops. She got three opinions (including hers), then she called the cops. Even the cops admitted when they got in the room it just smelled "funky," not one of them said it smelled like "marijuana."

    So, the cops were called and they came and my roommate when out and talked to them. He's an idiot and let them in on a "knock and talk" basis, and then they came in started talking. They came in and did a preliminary search (walked around the room, looked around) but couldn't find anything. They continued to talk (more like scream, threaten, and berate) to us, because they couldn't find anything. Twenty minutes go by, and the cops still haven't found anything. The "head" cop does one more sweep through, and he found a leaf on the floor near my roommates chair. His first words were "what is this?" (what happened to "immediate incriminating evidence" in the three-prong plain view doctrine?), and my roommate said it was probably just a leaf that was dragged in on someone's shoe, as a lot of people hang out in my room (truth).

    My roommate and the cop argued for a couple minutes, and the cop couldn't get a "yes, it's marijuana" out of us. So, they sat there for another five minutes screaming "we're going to get dogs and they are going to tear this place apart," and then they took my roommate outside and convinced him to give up what we had to avoid that. Again, he was an idiot and said "okay." He gave up 11 grams and over $600 worth of paraphernalia, I gave up 1.1 grams. We both got UPMs.

    Everything could have been avoided had my roommate not caved, or had I stood up and said "no" when they initially came in. I was high, he was high, and it was the first time we'd ever had trouble with the cops (for both of us), so I really can't be angry that he screwed up. He was probably nervous and didn't know what to do, as was I.

  6. #6
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    Default Re: Unlawful Possession of Marijuana

    Your roommate consented to the entry.

    Your roommate admitted to the crime.

    Neither violates the law. Police have the ability to question suspects... and, to bring in dogs with probable cause.

    Probable cause being three eyewitness reports.

  7. #7
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting cyjeff
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    Your roommate consented to the entry.

    Your roommate admitted to the crime.

    Neither violates the law. Police have the ability to question suspects... and, to bring in dogs with probable cause.

    Probable cause being three eyewitness reports.
    And I am saying the 4th Amendment protects our right to partake in private activities, regardless of public opinion. The NYS Civil Rights, Bill of Rights, also states I am the "supreme sovereign," and with my right to privacy, no group of people can sign away my rights. Thus, the marijuana laws are unconstitutional.

    Unless you want to say the sodomy laws that were ruled unconstitutional should be reversed, since sodomy has largely been considered "licentious" behavior, and licentious behavior is illegal. The only reason it's allowed is because it's done in the privacy of one's home, which is exactly where I was when I was caught possessing marijuana (school's policy is that the Constitution is valid, and the Constitution states common law is valid, and common law says my home is my castle...thus my dorm is my castle).

  8. #8
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting Scofield
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    And I am saying the 4th Amendment protects our right to partake in private activities, regardless of public opinion.
    And you would be wrong.

    Activities may be ruled illegal... and are, all the time.

    Look at child molestation. Are you saying that child molestation should be legal as long as the door is locked?

    The federal government has the authority to restrict the transportation, manufacture and use of substances deemed harmful.

    You don't want your next door neighbor stocking up on plutonium. The rest of us don't want you smoking dope.

    If you want it changed, write your congressman/woman.

    The NYS Civil Rights, Bill of Rights, also states I am the "supreme sovereign," and with my right to privacy, no group of people can sign away my rights. Thus, the marijuana laws are unconstitutional.
    And you would be wrong.

    Unless you want to say the sodomy laws that were ruled unconstitutional should be reversed, since sodomy has largely been considered "licentious" behavior, and licentious behavior is illegal.
    Show me where sodomy laws were shown to be unconstitutional.

    Yes, they have been repealed in many jurisdictions, but show me where they were ruled unconstitutional. Show me where the places where sodomy is CURRENTLY illegal are in violation of the Constitution.

    While you are in the law library, find any case law where the right to smoke pot was guaranteed under the Constitution.

    The only reason it's allowed is because it's done in the privacy of one's home, which is exactly where I was when I was caught possessing marijuana (school's policy is that the Constitution is valid, and the Constitution states common law is valid, and common law says my home is my castle...thus my dorm is my castle).
    And that brings up the last tidbit of information.

    You were on campus property. I am quite sure that your housing agreement allowed RA's to call police and initiate searches... and you AGREED to it when you signed up.

    Check your agreement before you get all high and mighty... well, in between finding a new place to live.

    Yes, they have the right to kick you out of the dorm for smoking from a high tech bong... and being stupid enough to not only smoke pot in the dorm but also to show the cop where the stash was.

  9. #9
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    Default Re: Unlawful Possession of Marijuana

    Quote Quoting cyjeff
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    And you would be wrong.

    Activities may be ruled illegal... and are, all the time.

    Look at child molestation. Are you saying that child molestation should be legal as long as the door is locked?
    Child Molestation infringes upon the rights of the child. Who's rights does my marijuana use infringe upon? The microscopic organisms living on my floor?

    There's a reason some personal activities are banned...they infringe upon other individual's rights. Marijuana use infringes upon NO ONE's rights.

    The federal government has the authority to restrict the transportation, manufacture and use of substances deemed harmful.

    You don't want your next door neighbor stocking up on plutonium. The rest of us don't want you smoking dope.
    If I can't stock up on plutonium, how can the government? Government is merely a large scale version of individual self-government: protecting rights of life, liberty, property. That's why government is formed, to protect those rights on a large scale. If the people can't stock up on plutonium, how can we rightfully give government the power to do so.

    The claims of these organizers of humanity raise another question which I have often asked them and which, so far as I know, they have never answered: If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse. The legislators claim to stop this suicidal course and to give it a saner direction. Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind; if so, let them show their titles to this superiority.
    -Frederic Bastiat

    Also, unless you know how to grow plutonium, you have to purchase it. The Federal Government has the right to regulate commerce....growing your own marijuana is not involved with commerce.

    If you want it changed, write your congressman/woman.
    Yes, because that works. I love how you're trying to tell me, that because a group of legislators write something down on paper, an act automatically becomes "just" and "legal."

    Justice [law] derives from morality, it's the whole reason government was created in the first place. How can one tell me a bit of scripture determines what is right and what is wrong, and that as soon as that scripture changes, so does morality?

    Show me where sodomy laws were shown to be unconstitutional.

    Yes, they have been repealed in many jurisdictions, but show me where they were ruled unconstitutional. Show me where the places where sodomy is CURRENTLY illegal are in violation of the Constitution.
    "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'” -Lawrence v. Texas

    While you are in the law library, find any case law where the right to smoke pot was guaranteed under the Constitution.
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
    - Tenth Amendment (US Constitution)

    No person shall be deprived of life, liberty or property without due process of law.
    - NYS Constitution

    nor be deprived of life, liberty, or property, without due process of law;
    - United States Constitution

    liberty. 1. Freedom from arbitrary or undue external restraint
    -Black's Law Dictionary
    We have the rights of "life, liberty, and property" (as I've shown), and judges have consistently ruled our liberty can't be violated in the privacy of our homes. If you want to argue that letting the cops in rids me of my liberty, you must also agree that if a homosexual couple lets a cop into their apartment, and he sees them looking at homosexual pornography or sees them mid-hump, the homosexual couple need be arrested. That's exactly what Lawrence v. Texas argued against.

    §3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. (Amended by vote of the people November 7, 2001.)
    - NYS Constitution

    Sodomy is no less licentious (according to most Americans) than marijuana use. Yet, sodomy is constitutional, as long as it's done in the privacy of one's home.

    § 2. Supreme sovereignty in the people. No authority can, on any pretence whatsoever, be exercised over the citizens of this state, but such as is or shall be derived from and granted by the people of this state.
    - NYS Civil Rights, Bill of Rights Section 2

    privacy. The condition or state of being free from public attention to intrusion into or interference with one's acts or decisions.
    - Black's Law Dictionary (dictionary used by the Supreme Court)

    I already explained the privacy issue, and how no group of people can sign away my sovereignty when in the privacy of my own home.

    How can anyone tell me I don't have the right to do to my body as I wish? I've made it clear we all have the right to live our lives away from public scrutiny, and that in our houses, no one can tell us what we can do....as long as we aren't violating other's rights.

  10. #10
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    Default Re: Unlawful Possession of Marijuana

    One more thing.

    Notice how an Amendment to the Constitution was needed to prohibit alcohol, yet there has never been an amendment to prohibit marijuana or any other drugs. Thus, how can the Federal prohibition of marijuana be considered constitutional?

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