Don’t Take Your Weed To Court, Son

May 16, 2016 (Mimesis Law)–The fun thing about criminal law is that while there are good days and bad days, there are no boring days. Take the case of Darius Dabney, who came to court with two bags of marijuana stuffed in his underwear.

THE COURT: This courtroom has an overwhelming smell of marijuana. So whomever has it, if you want to give it up right now it’s going to be destroyed. If you don’t, we’re bringing the drug dog over and you’re going to be doing a lot of time in jail when we find it. So who has the marijuana? DABNEY: I smoked marijuana before I got here. THE COURT: Okay. Well, do you have it on you? DABNEY: No, sir. THE COURT: Well, it doesn’t smell to me like burnt.

Hmmmm…the judge is suspiciously familiar with the odor of marijuana. Nevertheless, he ordered Mr. Dabney to have a seat in the jury box.

THE COURT: What’s your name? Do you remember that? DABNEY: I don’t know that right now. THE COURT: Okay. Why don’t you come up here and have a seat so we can maybe — maybe we can take it out in the hall. I don’t care what your name is. Come on up. Maybe you can remember your name by the time you sit up here. Have a seat right over here.

Dabney’s lawyer was present in the court room, and tried to explain:

THE COURT: Okay. No, no, no. Right here. What’s his name, Mr. Moore? MOORE: Dabney, Darius Dabney, Your Honor. He did answer to his name earlier, though. Judge, what happened on Mr. Dabney, he’s here for probation violation. What happened was he was locked up, didn’t report to probation and just recently got out for a felony PV. THE COURT: And celebrated. MOORE: Evidently so. THE COURT: Yeah. Well, I don’t think I can take a plea from him today because he’s not of sound mind. DABNEY: Can I come back? THE COURT: Yeah, you’re going to come back, but here’s the problem, you’re going to stay with us for a couple days. THE DEFENDANT: What?

Poor Mr. Moore. He’s got an impossible situation, but he’s quick on his feet:

MOORE: Your Honor, I did speak to him earlier and he knew his name and he knew essentially why he was here and that sort of thing. He didn’t strike me as someone who was intoxicated. Judge, I know that he was kind of carrying on a little bit in the back there, but I think he was just having fun, essentially, is what it comes down to, Judge. I’m satisfied that he’s ready to proceed. THE COURT: Well, thank you for that, but I mean, he just admitted that he smoked marijuana right before he came to court. The judge proceeded to get the bottom of the situation, like a boss: THE COURT: Any way, but you’re going to be doing a day anyway, so tomorrow we can take care of it. Now, listen to me, Mr. Dabney. If you got it on you it’s going to be a felony when they strip you over there so I’ll give you one last time to tell me if you have any unburnt marijuana on you. I’m giving you — oh, ah-ha. (Defendant pulled a bag of marijuana out of his pants.) THE COURT: Okay. So finally you came clean. If there’s anything else, this is your opportunity. We’re going to destroy it. Are you sure? (Defendant pulled another bag of marijuana out of his pants.)

While this seems hilarious, it’s actually a blatant and egregious violation of Dabney’s constitutional rights.

To begin with, while the odor of marijuana is usually probably cause to search and seize someone, Dabney was presumably seated in a courtroom gallery with several other people. Change the venue, from a courtroom to a Cypress Hill concert. The cops can’t stop people from leaving the concert venue without a dog sniff, even if the encore was a rousing rendition of Hits From the Bong. Judge Bouchard can’t do the same to the people in his courtroom, even if the smell made him want to rush out to the vending machine and scarf some Doritos.

Next, once Judge Bouchard threatened to call in the dogs, Dabney certainly wasn’t free to leave. That means that before interrogating him, the questioner has to read him Miranda. Which, according to the transcript, the judge didn’t do, thus violating his Fifth Amendment right against self-incrimination. Not only was the questioning done without Miranda, Dabney’s lawyer was in the room and Dabney wasn’t given a chance to consult with him, which violated his Sixth Amendment right to the assistance of counsel. As the cherry on top, these violations are also a violation to Dabney’s Fourteenth Amendment right to the due process of law.

Darius Dabney isn’t some figure of fun. He is a symbol of the erosion of our civil liberties and deserves justice in the form of an abject apology from Judge Bouchard and monetary…

Just kidding. Dabney got off pretty easily, assuming that he only got the day in jail for contempt, and isn’t facing new charges for possession of marijuana and/or being too stupid to walk and chew gum at the same time. But assuming he was facing new charges, that’s one possible way his lawyer could go about defending him. So, if you got through the last three or four paragraphs without rolling your eyes or muttering about sleazy defense attorneys, have I got a career for you!

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