View attachment 36062 When Phish played at Outside Lands a few years back, I happened to run into a very cool group of their fans waiting for the shuttle bus. They told me they were from New York and were following the band across the country. We talked about how followers of the band really tried to welcome newer fans and teach them some of the traditions and ideals of being a “Phan”. They ended by telling me a few “war stories” from different tours they had followed.
I love people who are this passionate about music. So this article is for all you Phans, Bassheads, Pretty Lights Family members, DMB and Widespread Panic followers and all you other “festies” who are going to be logging serious miles as you travel to your next show or festival.
Or to put it another way — Here is what to do if the police stop you ON YOUR WAY to a music festival.
TRAVEL TIP #1: At your home you are a “King in a Castle”
Wait, if I’m writing an article about travel issues, then why am I starting with your rights when the police come to your house?
Because the question of what rights you have at a particular location (like whether the police need a warrant or what’s considered an “unreasonable search”) often depends on how much the location is like a home. The law calls this a “reasonable expectation of privacy”.
Your privacy rights are at their strongest when you are in your own home. In fact this tradition is so strong it is sometimes called the “Castle Doctrine”. This come from the English Common Law phrase “An Englishman’s home is his castle.” (English Common Law is sort of the “Old School” or “Vinyl” version of American law.)
View attachment 36063 You probably already know that the police must get a search warrant before they are allowed to search your home unless there is some kind of legal exception like “exigent circumstances”.
What you also need to know is that one of the other most common exceptions where the police don’t need a search warrant is when the owner gives consent or permission for the cops to search the house.
Cops actually kind of hate getting search warrants. It’s a little bit of a pain for them to do as a practical matter and they aren’t keen on running their probable cause by a Judge. So cops will often try to avoid the need for a search warrant by doing what they call a “Knock and Talk”.
Like the trailer for a new Jennifer Aniston comedy, a “Knock and Talk” seems like it would be a lot more fun that it actually ends up being. A “Knock and Talk” involves the cops knocking at your door and asking, “Say, if you don’t have anything to hide, how about we come into your house and take a look around?”
In other words, like vampires, cops can only come into your home (without a warrant) if you invite them in.
Okay, as the Arctic Monkeys song says, “Perhaps vampires is a bit strong,” but you get the point — If an officer wants to search your home you should assume you are a suspect in a criminal investigation. Act accordingly. Remain silent and ask for a lawyer. The only thing you should say is:
“Officer, I can’t let you inside without a search warrant.”
Don’t worry if you can’t remember this phrase, you can get a doormat to remind you.
View attachment 36064 TRAVEL TIP #2: Hotel Room Searches
“Our hotel room looked like the site of some disastrous zoological experiment involving whiskey and gorillas.” –Hunter S. Thompson, Fear and Loathing in Las Vegas
I recently had some folks tweet me to say that they were staying at a hotel for a concert and cops were basically going up and down the hallways of the hotel banging on doors and saying “Police, open up” and randomly searching rooms. They asked what rights they had in that situation.
The legal issue here is…you guessed it…whether you have a “reasonable expectation of privacy” in your hotel room.
To determine if you have a “reasonable expectation of privacy”, the law asks questions like:
(Hint — one of the prongs of this test was really just a joke to see if you are still paying attention.)
- Are you there lawfully?
- Is it private property?
- Do you have any ownership rights there?
- Can you eject people from the location?
- Can you yell “Hey you kids get off my goddamn lawn!?”
Generally, if you are using your hotel room in an ordinary way, then you have a limited right to privacy in that room. In other words, police will usually need to get a search warrant.
On the other hand, if the hotel believes that you are using your room for illegal activity, then hotel management has the right to enter and search your room without your permission.
Importantly, the manager of the hotel can’t give the police permission to search your room. But there are all kinds of other ways cops can search without getting a warrant. For example, if you open the door and people are openly using drugs in “plain view” of the cops, they can probably search. Or if they do a “knock and talk” and someone else in your room says “come in” they can probably search.
Bottom line: Don’t use your hotel room like Dr. Gonzo (i.e. openly engaging in illegal activity). Tell the folks staying in your room to be cool and not to give anyone permission to come into the room. Don’t consent to any searches and don’t be tricked into thinking that management can somehow give the police permission to search your room.
Even though it’s not your actual house, you still have a right to be free from harassment and random searches of your room without a warrant. Just like Borat when he entered his hotel room and found a chair, you too are a “King in your Castle” in your hotel room.
View attachment 36065 TRAVEL TIP #3: Car Stops…Or maybe Jay-Z actually had 100 problems.
People constantly ask me what to do if the police stop their car. Although I love the song and I think Jay-Z is a genius, people are also constantly misquoting his song “99 problems” for one of the biggest legal myths out there.
The second verse of the song is fictional, but based on a true story. The cops want to search his car (loaded with cocaine), he refuses, they wait for drug-sniffing dogs that never show up, and Mr. Carter gets away with it. During this conversation, Jay-Z says:
“Well, my glove compartment is locked, so is the trunk and the back, and I know my rights so you gon’ need a warrant for that.”
The good thing the narrator does in this song, and something YOU should always do, is refuse to give the police consent to search his car. Specifically, he tells the officer “No, I don’t consent to any search.”
But unlike what the song suggests, the police never needed a warrant in the first place. The courts have declared that there is an “automobile exception” to the normal requirement of a search warrant. That’s because cars are very mobile and can easily be moved to destroy evidence. Also, cars are highly regulated and usually in a public place. Cars in public places without privacy rights = no “reasonable expectation of privacy”.
Police must still have some facts or evidence to believe you are involved in criminal activity (probable cause) or they can’t search the car. This could be the sight or smell of contraband or a weapon in plain view.
Although not nearly as catchy, the legally correct phrasing of that verse should have been “I know my rights so you gon’ need probable cause for that.”
By the way, Jay-Z wrote in his book that the “bitch” in question is not an unpleasant woman but a drug-sniffing dog. The “100th” problem would have been the cop using a “bitch” (drug dog) to search his car.
If so, he’s lucky the year “was 94” when his “trunk was raw”. That’s because after that, in a case called Illinois v. Caballes, the Supreme Court ruled that the 4th Amendment doesn’t EVEN APPLY to the use of drug sniffing dogs during car stops. So, if cops have you legally stopped they can freely use a dog to search.
I’ve got a whole future project I’m working on that is going to cover your rights in a car stop in a lot more detail. But here is an excellent summary from the folks at Flex Your Rights which gives you plenty of information about how to handle yourself if the police stop your car.
View attachment 36066 TRAVEL TIP #4: Temporary Homes Like Campgrounds and Motor Homes
In People v. Hughston 168 Cal. App. 4th 1062 (2008), the court was asked to rule whether the police needed a warrant to search a tent that was put up within a designated site on land specifically set aside for camping during a music festival.
The court found that the defendant did have a “reasonable expectation of privacy” in the tent and that therefore a warrant was needed under the Fourth Amendment. The court added, “One should be free to depart the campsite for the day’s adventure without fear of this expectation of privacy being violated.’” (Hughston, at p. 1070)
In other words, because the person was there lawfully, had the right to kick others off the property and had ownership rights over the tent, it was more like a house or a hotel room than a car.
Of course, things might be different depending on the festival and the location. I mean, what if the festival organizers tell you that this is “private property” and instruct you that you have no ownership or privacy rights there at all? Or what if the promoters announce openly as you arrive that they are giving the police permission at any time to search your tent?
When it comes to festival campgrounds you really need to do your homework. Read the festival’s website. Look at what your ticket or other contract with the festival says. Ask past festival goers what their experience has been. Is the festival known for people being harassed and aggressively searched for no reason?
In other words, you aren’t really a “King in a Castle” in this situation. But you may be at least a prince or some lesser royalty if you know your rights and educate yourself.
Festival goers should insist that the festivals they go to are safe and that security concerns are handled in a professional and courteous manner. In return, festies can help upgrade the experience by being fun, positive audience goers who police and are responsible for each other’s safety.
In California v. Carney 471 U.S. 386 (1985) the US Supreme Court ruled that motor homes are to be treated like cars and that the “automobile exception” applies.
In other words, after this Supreme Court ruling your privacy rights in a motor home are “NO MORE!” (yes, that’s a “Winnebago Man” reference.)
View attachment 36067 TRAVEL TIP #5: Airport Searches
As you might imagine, you have zero “reasonable expectation of privacy” at the airport. A TSA airport security zone is basically a way more legally serious and federalized Costco. Only it’s the Department of Homeland Security that’s checking your receipt and going through your shit on the way out. Transportation Security Agency (TSA) agents are legally permitted to search you and your belongings without a search warrant or probable cause or any other legal justification.
The question I get a lot is whether you can take “legal” or medicinal marijuana on a plane with you to your next festival.
This is a weird legal area. That’s because medical marijuana is legal in the state of California but Federal Law makes marijuana a Schedule 1 Controlled substance. The FAA and the Department of Homeland Security are under Federal law, so travelling with medical marijuana or marijuana from a “legal” state (about 20 states at this point) puts you into a grey area. It’s legal under state law, but illegal under Federal Law.
The TSA website says this:Whether or not marijuana is considered “medical marijuana” under local law is not relevant to TSA screening because TSA is governed by federal law and federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.Ahh, so travelling through the airport is a strict violation of Federal law and you will be automatically arrested, right? Well maybe not.
The TSA also adds:The discovery of marijuana in a carry-on or checked bag does not automatically mean that a passenger will be turned over to local police, and the agency adds that “the final decision rests with TSA on whether to allow any items on the plane.”You read that right — whether you are using medical marijuana to treat your “backiotemy” or you are merely an “enhancement smoker”, you might be able to take it on the plane with you.
On the other hand, it might be a seriously bad experience for you if you get the wrong TSA agent. I mean maybe you can check your bag with pot or try to carry it on with your medical marijuana card. But why would you risk it? I would put this in the “unnecessary risk” category.
(Random Fact: In 2011, TSA agents at Denver International Airport found bags of weed in rapper Freddie Gibbs’ luggage and simply left him a note reading “C’mon son.”)
The ACLU also has a “know your rights when traveling” page that has a lot of additional resources.
AT THE FESTIVAL
Yay! You made it. So what do you do if you get all the way to a festival and the cops stop you? Heck, you should already know the answer to this.
December 4, 2013
The Festival Lawyer
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