Q: Is there anything California marijuana businesses can do to protect themselves in case the Feds do decide to crack down?
A: This may be more of a political question than a legal one. Marijuana-related activities that are legal under state law can always be prosecuted as federal crimes. Theoretically, the feds could come crashing through the doors of a state-legal business at any time, searching, confiscating, and arresting to their hearts’ content. Federal law enforcement policy is controlled by the President and his appointees, so the question currently depends on the political whims of the unpredictable and often incoherent Trump administration.
The current policy, carried over from the Obama administration, directs federal enforcement efforts away from activities that are legal under state law. They reserve the right to enforce federal law, but have been tolerating state-legal activity in states that adequately enforce regulations to keep marijuana away from minors, criminal gangs, and dealers of other drugs, while preventing, violence, environmental damage, DUI, and diversion to states that haven’t legalized. Meanwhile, Congress passed a law prohibiting the use of federal funds to target activity permitted under state medical (not recreational) marijuana laws.
Along comes President Trump and Attorney General Jeff Sessions, a dinosaur relic of the drug war who believes marijuana is “only slightly less awful” than heroin. Well, that’s a pretty good advertisement for heroin, but it’s not something you want to hear from the guy who controls the DEA; not in any year that begins with a 2. So far signals are mixed and there’s no certainty as to how things might change. Legalization is popular and politicians need votes, so they may just continue with the hands-off approach.
If they do crack down, they’ll likely target enforcement where the political calculation is best. Businesses out of compliance with state and local regulations, businesses causing controversy in their community, businesses diverting marijuana to the black market, serving minors, affiliating with gangs, dealing in other drugs, laundering money, evading taxes, etc. would be more likely targets than those who comply with state law, are good local neighbors, and keep everything on the up and up.
Marijuana businesses can also retain a lawyer in advance, and then decline to speak to law enforcement at all, except through that lawyer. Employees can be instructed that they don’t have to speak to any officer and can speak to the company lawyer instead. Any statement whatsoever to any officer can negatively affect your legal position.
Never give police or federal agents consent to search. If they have a legal right to search, let them use that legal right and not your consent to justify the search. If there’s a question regarding the legality of their justification, as there often is, they won’t have your consent to fall back on. Employees should be trained to never grant consent to search.
That’s what all marijuana businesses can do while we wait and see how the feds are gonna handle this under Trump. Proceed with caution, uphold your constitutional rights, and avoid the aforementioned red flags, and it probably won’t be you that draws their focus.
David Pullman is a criminal defense attorney in the Bay Area city of San Rafael who specializes in representing people accused of drug crimes. Read more from him here:
To submit questions for Pullman to answer in a future column, email firstname.lastname@example.org.