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by Peter Moskos

November 11, 2014

"Stop arresting people for weed" is 5 words long

You'd think it would be easy to tell cops to stop arresting people for small scale possession of marijuana. But not a police department.

Every now and then I try to write about paperwork, because it's such an integral part of the job and such a key negative motivator of police officers and good police work. But who the hell wants to read about paperwork?

Well, anyway, it's my blog, damnit! And to understand police you need to understand police paperwork. Here is the Order that tells cops to not arrest people for marijuana. It is 21 steps, 5 pages, and 1,652 words long. And yes, this is typical. And yes, there are literally thousands of others. And yes, they come out about once per week. And indeed, they are all not followed because nobody knows them all. And yes, if you fail to follow them correctly, it could be your ass in the jackpot. Also, believe it or not, this order is designed to reduce the amount of paperwork and time police officers have to spend on the matter.

Figure out a legal and efficient way to reduce paperwork in police departments and the police will beat a path to your door... er... but in a good way!




OPERATIONS ORDER

SUBJECT: ENFORCEMENT OF CRIMINAL POSSESSION MARIJUANA, FIFTH DEGREE, SUBDIVISION ONE

DATE ISSUED: 11-11-14

NUMBER: 43

            1. This Order allows for the issuance of a Criminal Court summons, in lieu of arrest, to people found in possession of a small amount of marijuana – defined as 25 grams or less – in a public place and open to public view. Eligible, properly identified people will be issued a Criminal Court summons for Unlawful Possession of Marihuana, a violation, rather than arrested for Criminal Possession of Marihuana, a misdemeanor. The Criminal Court summons will be issued for the lesser included offense of Unlawful Possession of Marihuana (Penal Law 221.05).

            2. This Order will apply only to people found in possession of a small amount of marijuana open to public view, in a public place, that is consistent with personal use. A person found in possession of marijuana burning in a public place will be arrested and charged with Criminal Possession of Marihuana in the Fifth Degree, subdivision one (Penal Law 221.10 (1)), a misdemeanor. Additionally, a person found in possession of marijuana in public view in a manner that is inconsistent with personal use will be arrested and charged with the appropriate degree of Criminal Possession of Marihuana.

            3. Therefore, effective November 19, 2014, at 0001 hours, members of the service will adhere to the following procedure when they apprehend people for violating Penal Law section 221.10 (1), Criminal Possession of Marihuana in the Fifth Degree, subdivision one – possession in public view only:

PURPOSE: To provide for the issuance of a Criminal Court summons (C-summons) in lieu of an arrest for eligible people apprehended for violating Penal Law section 221.10 (1), Criminal Possession of Marihuana in the Fifth Degree, subdivision one – possession in public view only.

PROCEDURE: When a person is found in possession of 25 grams or less of marijuana in a public place and open to public view that is not burning and is consistent with personal use:

UNIFORMED MEMBER OF THE SERVICE CONCERNED

1. Confiscate contraband for subsequent testing and invoicing as per Patrol Guide Procedure 218-08 “Field Testing of Marijuana by Selected Uniformed Members of the Service within the Patrol Services and Housing Bureaus.”
2. Determine if there is probable cause to believe that the person committed any other fingerprintable offense beyond the mere possession of marijuana in public view.     
3. Inform person that he/she may be issued a C-Summons, if qualified.
            a. Disqualifying factors for a C-Summons issued in conformance with Patrol Guide Procedure 209-01, “Conditions of Service,” for Criminal Possession of Marihuana in the Fifth Degree, subdivision one – public view only are:
                        (1) Person has an active warrant
                        (2) Person is wanted in connection with an active INVESTIGATION CARD (PD373-163) labeled Perpetrator – probable cause to arrest
                        (3) Person is charged with other fingerprintable offenses
                        (4) Person is not properly identified.
4. Establish person’s identity through observation of valid identification documents.
            a. For the purposes of this procedure, valid documents include:
                        (1) Valid Photo Driver’ License (From New York State, another state, or another country)
                        (2) Valid passport
                        (3) Citizenship or naturalization papers
                        (4) New York State Non-Driver’s Permit
                        (5) New York State Driver’s Permit
                        (6) Other government photo identification
                        (7) School identification card issued by high school, community college, college or university
                        (8) Birth certificate
                        (9) New York State Benefit Identification card
                        (10) NYC Department of Consumer Affairs Vendor Licenses
                        (11) A City, State, or Federal employee identification card
                        (12) Utility bill dated within the last three month, listing person’s name and current address.
            b. Members should note that these are general guidelines, and other forms of identification may be acceptable.
5. Determine if the person has an active warrant or an active INVESTIGATION CARD labeled Perpetrator – probable cause to arrest by requesting a check through Communications Section, the local precinct, and/or through the use of a mobile device.

NOTE: A person should be issued a summons in the field unless further investigation is needed or conditions warrant processing at a Department facility.

IF THE PERSON IS ISSUED A CRIMINAL COURT SUMMONS IN THE FIELD

UNIFORMED MEMBER OF THE SERVICE CONCERNED
6. Issue the person a summons for the lesser included offense of P.L. 221.05 “Unlawful Possession of Marihuana,” as per Patrol Guide Procedure 209-09, “Personal Service of Summonses Returnable to Traffic Violations Bureau or Criminal Court.”
7. Deliver marijuana to Desk Officer, precinct of occurrence

DESK OFFICER
8. Have marijuana invoiced as per Patrol Guide Procedure 218-08, “Field Testing Marijuana by Selected Uniformed Members of the Service within the Patrol Services and Housing Bureaus.”
9. Ensure testing member prepares the MARIJUANA SUPPORTING DEPOSITION/ FIELD TEST REPORT (PD381-145) in accordance with P.G. 209-09, “Personal Service of Summonses Returnable to Traffic Violations Bureau or Criminal Court.”

IF THE PERSON IS TO BE REMOVED TO THE COMMAND

UNIFORMED MEMBER OF THE SERVICE CONCERNED
10. Comply with appropriate arrest processing guidelines and remove person to precinct of arrest or a designated arrest facility and advise desk officer of facts.
a. Determine whether the person should be issued a C-summons or processed as an online arrest.
b. Include in Command Log entry that the circumstances of the summons or arrest were in conformance with the standards set forth in this Order.

DESK OFFICER
11. Question officer regarding circumstances that led to the apprehension of the person and the seizure of the marijuana.
            a. Determine whether the person should be issued a C-summons or arrested.
            b. Include in Command Log entry the circumstances of the summons or arrest.
12. Allow person to contact a third party in order to obtain appropriate identification, when such identification is necessary for the issuance of a summons or Desk Appearance Ticket (DAT).
            a. Delay arrest processing a reasonable amount of time to allow the delivery of such  document(s).
13. Determine whether the person’s identity has been verified. Determine whether the person has an active warrant or INVESTIGATION CARD.        
14. Direct issuance of C-summons if appropriate.

IF PERSON QUALIFIES FOR A CRIMINAL COURT SUMMONS AT THE STATION HOUSE

UNIFORMED MEMBER OF THE SERVICE CONCERNED
15. Issue the person a C-summons for violation of P.L. 221.05 “Unlawful Possession of Marihuana,” as per Patrol Guide Procedure 209-09,“Personal Service of Summonses Returnable  to Traffic Violations Bureau or Criminal Court.”

DESK OFFICER
16. Release person after C-summons has been issued.
17. Make Command Log entry and process summons as per Patrol Guide procedure 209-09, “Personal Service of Summonses Returnable to Traffic Violations Bureau or Criminal Court.”
18. Ensure marijuana is invoiced as per Patrol Guide Procedure 218-08, “Field Testing Marijuana by Selected Uniformed Members of the Service within the Patrol Services and Housing Bureaus.”
            a. Once a decision is made to issue a C-summons, do not delay the release of the person in order to field test the marijuana.
19. Ensure testing member prepares the MARIJUANA SUPPORTING DEPOSITION/ FIELD TEST REPORT (PD381-145) in accordance with P.G. 209-09, “Personal Service of Summonses Returnable to Traffic Violations Bureau or Criminal Court.”

IF PERSON DOES NOT QUALIFY FOR A CRIMINAL COURT SUMMONS AT THE STATION HOUSE

DESK OFFICER
20. Direct issuance of Desk Appearance Ticket (DAT) if person is properly identified and eligible.
            a. Disqualifying factors for a DAT for the charge of Criminal Possession of Marihuana in the Fifth Degree are:
                        i. Person refuses to sign the DAT
                        ii. Person has an active warrant
                        iii. Person is under the influence of drugs/alcohol to the degree that he may endanger himself or others
                        iv. Person owes DNA.
            b. If person has an active INVESTIGATION CARD labeled Perpetrator - probable cause to arrest:
                        i. Notify the Criminal Intelligence Section, Regional Intelligence Support Center (RISC) of active INVESTIGATION CARD
                        ii. Continue with DAT process and release person to responding detective
                        iii. Do not release person with an active probable cause INVESTIGATION CARD if no detective is available to re-arrest person. In this situation deny the DAT and process online.
21. If person is not eligible for a C-summons or DAT ensure that the arrest is processed online as per existing Department procedures.

ADDITIONAL DATA

A GROUP OF PEOPLE SMOKING MARIJUANA
If a group of people are observed smoking and passing a burning marijuana cigarette in public, all persons observed in possession of the burning marijuana may be arrested for Criminal Possession of Marijuana in the Fifth Degree, subdivision one (Penal Law 221.10(1)), a misdemeanor. Additionally, this type of incident does not constitute a sale or intent to sell under this Order. None of the people should be arrested and charged with selling marijuana.
MARIJUANA IN A VEHICLE If marijuana is observed inside a vehicle with multiple occupants, every attempt should be made to identify the person in custody and control of the marijuana. Only that person should be issued a C-summons or be arrested for the possession of the
marijuana. Normally the operator of a private vehicle would be considered in custody and control of any items in the vehicle, unless it is found on the person of a passenger or in such a manner that would lead an officer to believe that a passenger has custody and control of the item.
PERSONS EXTINGUISHING MARIJUANA IMMEDIATELY PRIOR TO APPREHENSION
An officer does not have to personally observe a person in possession of marijuana burning in public. If there is probable cause to believe that a person was in possession of burning marijuana in public (i.e., the unique smell of burning marijuana), yet the officer only observed the person in possession of an extinguished marijuana cigarette, that person may be arrested and charged with Criminal Possession of Marihuana in the Fifth Degree, subdivision one (Penal Law
221.10(1)), a misdemeanor.

4. Operations Order 49, series 2011, is hereby REVOKED.

5. Operations Order 13, series 2013, is hereby REVOKED.

6. Commanding officers will ensure that the contents of this Order are immediately brought to the attention of members of their commands.

BY DIRECTION OF THE POLICE COMMISSIONER DISTRIBUTION
All Commands

1 comment:

Momma Fargo said...

Holy crap, Batman! You need to come to Wyoming and fill out a one page affidavit.