Criminal Issues

The Legal Blitz Feature: Constitutional Implications of Eating Weed During a Traffic Stop

Each Friday we will feature an article from our good friends at The Legal Blitz. Please enjoy the following piece and check out The Legal Blitz when you get a chance!

Detroit Lions running back Mikel Leshoure has not played a single down in the NFL due to an ACL tear following his second round selection in the 2011 draft. Yet while he hasn’t spent much time running on grass, he has exhibited a propensity for smoking — and eating it. That’s right, Leshoure was recently cited for possession of marijuana in Baroda-Lake Township, Michigan after police saw him try to eat a bag of marijuana during a traffic stop. Despite his best efforts to claim he was chewing potpourri, the crumbs of marijuana on his shirt told a different story. Leshoure’s possession charge was his second in two months.

But was Leshoure really all that crazy to try to eat his weed during the traffic stop? What evidence do police need to search a vehicle for drugs? And is searching somebody’s mouth even constitutional? To answer these questions and more, we went straight to Detroit to pick the brain of criminal law expert and Wayne State University Law professor Anthony M. Dillof. Prof. Dillof teaches torts, criminal law, and criminal procedure. He has been published in the Michigan Law Review, Northwestern Law Review, Notre Dame Law Review, Buffalo Criminal Law Review, and the Journal of Criminal Law and Criminology.

During an ordinary traffic stop, what is the standard police must follow before searching a vehicle? Do they have to actually see or smell drugs, or just have a reasonable suspicion that there are drugs in the vehicle?

In general, probable cause is needed to search a car. There are, however, exceptions where there is a reasonable suspicion of weapons, search incident to an arrest, etc.

According to the police report, officers saw Mikel Leshoure chewing what appeared to be marijuana, so they asked him to spit it out. Did he have to obey those orders? Is it possible that making someone spit out what is in their mouth constitutes a “search” for Fourth Amendment purposes?

He had to obey the order unless he had a good reason to believe it was unlawful. I’d say that having someone spit out what is in their mouth is a search, thus probable cause would be required.

Prof. Dillof

Had Mr. Leshoure managed to successfully swallow the marijuana, are the “crumbs” on his shirt enough evidence for a citation or arrest?

The simplest answer is that the crumbs would be very strong evidence of recent marijuana possession. Whether having crumbs counts as possessing crumbs would depend on whether he knew they were there and had the opportunity to get rid of them. Possessing extremely small amounts of marijuana may be only a minor criminal violation, or a civil infraction — I’m not sure.

Another Lions player, Nick Fairley, was also recently arrested under similar circumstances. Does “eating” drug evidence really ever work?

When eating drugs prevents the police from knowing you possessed the drugs, it works.

How does Mr. Leshoure possessing drugs impact the driver? Could the driver face criminal charges for the crime of possession by a passenger?

Only if the driver also possessed the drugs, i.e., whether he had actual control over the drugs or was an accomplice to the passenger’s possession.

Alternatively, if someone is a passenger in a vehicle that unbeknownst to them contains drugs, could the passenger be criminally charged? Is there a presumption of a common criminal act with passengers in a vehicle?

Such a presumption would violate Due Process, which guarantees that all the elements of the offense be proven beyond a reasonable doubt.

How does the standard differ for passengers in a vehicle vs. someone walking down the street in terms of the suspicion/probable cause needed to conduct a search?

Searches for evidence (not weapons) require probable cause. It does not matter whether the search is of a car or of a person on the street. There is precedent, however, for a warrant — if feasible — in the case of a person on the street, in contrast to a car.