I heard that the police are not going to make arrests in cases for marijuana in Philadelphia. Is that true? How can that be if marijuana is still illegal in Pennsylvania?

The topic of marijuana in Philadelphia is a very interesting topic for many different reasons.

First, in non-traffic summary cases in Pennsylvania, the police can give a ticket instead of making an arrest. The police have the discretion, however, in a non-traffic summary case, to make an arrest. The number one factor in the determination to make an arrest is whether the person has valid identification, whether a check of that ID comes back negative for any warrants or probation violations, and whether the person appears to be the person on the ID card. Assuming the person’s ID card checks out, if the person is fully cooperative and respectful of the police officer, the person should just be given a ticket.

However, the person still must appear in court for the summary hearing and if found guilty, the guilty finding will be shown on their record from the Pennsylvania State Police certified criminal record. In a previous post we debated whether a non-traffic summary offense is a crime, and this post is not the forum for that long discussion, though in short, because the summary is on your record, it looks like a criminal conviction.

In Philadelphia county on marijuana cases under one ounce, the police have been instructed to treat the stop the same as a non-traffic summary offense as stated above. The officer has discretion whether to arrest the person or just give them a ticket. The criteria is almost identical to that of the non-traffic summary offenses. The person will be given a court date and may be offered a diversionary program that would make the case go away. However, if the person doesn’t go to court or doesn’t take the diversionary program, the person can be found guilty of possession of a small amount of marijuana, which is a criminal conviction. This point is not debatable, a conviction for a small amount of marijuana is a crime and you will have a criminal record.

There are two major issues with this practice.

The first issue is preemption. Most likely, the new rules for marijuana in Philadelphia are surely preempted by state law. This means that in Pennsylvania there is a crime for a small amount of marijuana and Philadelphia County cannot just say that it is not going to be a crime in its county. However, the real issue is enforcement. No one is going to appeal this practice, so even if the practice is preempted, who is going to stop it. Normally, when there is an preemption issue with a lower jurisdiction creating a new rule or law that goes against the higher up jurisdiction, its when the lower jurisdiction tries to give you a harsher punishment or less rights. For example, if Philadelphia County were to have harsher statutes for its gun laws then the rest of the state. All of the defense attorneys would argue that Philadelphia is preempted by the state and can’t give you less rights and can’t give you greater punishment. However, in marijuana in Philadelphia, the county is giving you less punishment, so I don’t think anyone is going to argue preemption unless there is a new district attorney who opposes the practice.

The next issue is whether the police can search you when the give you the ticket for marijuana in Philadelphia. This is issue is very unclear. In a non-traffic summary citation, I think the police would be limited in searching. They might be able to do a pat down for their own safety, but thats probably it. In marijuana in Philadelphia tickets, the police are acting as if the cases are non-traffic summary citations, so their ability to search should be limited. However, the cases are still real crimes in Pennsylvania, and the police can search incident to arrest. Accordingly, the prosecutors will most likely make a strong argument, that the police can conduct a full search based on probable cause in the marijuana cases.

 

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