Latest posts by Sean McAllister, Esq. (see all)
- Will Psilocybin Decriminalization Expand in 2020? Psilocybin Initiatives in Denver, Oakland, Chicago, California, and Oregon - January 17, 2020
- It’s Time to Enthusiastically Celebrate Denver’s Historic Victory to Decriminalize Psilocybin Mushrooms - May 13, 2019
- Don’t Have a Bad Trip with the Police:Know your Rights with Police and Psychedelics - April 18, 2019
You likely know a lot about psychedelics. You know that in most cases, these substances are illegal under U.S. law. But do you know how to handle a police encounter if psychedelics are involved? What happens if you get detained at the border with ayahuasca? Do you have to talk to police or border patrol? What happens if police show up to your psychedelic ceremony on private land? Do you have to let them search your property?
Over and over again, as a lawyer who has represented hundreds of people charged with drug crimes, I’ve seen people handle encounters with police very poorly. My experience is that people generally “bust” themselves by making a variety of mistakes during police stops or encounters, including: engaging in risky behavior in an open public place, consenting to search by police, waiving their rights to remain silent, and thinking they could talk their way out of arrest. This article outlines the basic skills that people engaged in the use of psychedelic substances need to avoid worsening their situation during police encounters.
1. It’s not just the shaman that can get in trouble; anyone assisting can also be arrested.
A conviction for any crime related to psychedelics could result in a prison sentence, or at least a very expensive court process followed by several years of expensive and time-consuming probation. In addition, anyone who assists or facilitates someone else committing a criminal act related to psychedelic substances can also be guilty of the same offenses as the people actually using, distributing, manufacturing, possessing, or selling these substances.
This last point is often missed. People think, “I’m just providing the land to do the ceremony,” or “I’m just paying to bring the shaman up from Mexico, but I’m not distributing the psychedelic medicine.” Even these acts of indirect assistance to others could make you guilty of a crime.
2. Sloppy people get busted, keep it private
Publicly posting about your ayahuasca or mushroom ceremonies on social media or other public forums like Craigslist is an easy way to get yourself in trouble. Police troll social media sites and look for easy ways to arrest people. Prevention is the best medicine, so keeping your event private and low key (far away from potentially annoyed neighbors) is an important way to avoid police encounters.
3. Do cops have to tell the truth?
No. Police can lie to gain your trust, including misrepresenting their identity, lying about being police, and they can even possess drugs to potentially entice you into committing a crime. However, except, in general, in life or death situations, cops cannot use illicit drugs. Therefore, it is highly unlikely that someone who participates in a psychedelic ceremony is a member of law enforcement.
4. Who else should I be wary of?
It is also important to know that if you have a friend who has been arrested for a serious drug crime. In many cases, police and prosecutors offer to reduce that person’s penalties if they turn in others. Therefore, it could be risky to engage in psychedelic ceremonies with friends who are part of the criminal justice system because they could be informants. If you don’t trust someone for whatever reason, you should probably not be engaging in these behaviors with them.
5. Are you being detained, or are you free to go?
A cop can walk up to you in public, or even at your house, and talk to you without any reasonable suspicion or probable cause. Anything you say during these “consensual encounters” can be used against you. If a cop interacts with you, and you don’t want to talk to them, ask them, “am I free to go?” If they say yes, you can walk away without any consequences. If they say no, you are being detained, you should ask them why, and ask them to state a specific reason.
If you are detained, police can pat you down and search your bags within arm’s reach to see if you have any weapons. If you are being detained, then it is time to invoke your right to remain silent. You don’t have to say anything to cops when you are detained, other than saying you want to remain silent.
6. Do I have to show cops my ID?
In many states, when police detain you, they have the right to demand you identify yourself by showing your state-issued ID. Always comply with these basic demands of law enforcement. However, if they begin asking you substantive questions, and you have any question as to the legality of your conduct, you should always invoke your right to remain silent.
7. Should I talk to police?
If you are being detained or being arrested, police will often ask if you are willing to talk to them right away. Police will often suggest you can help yourself by cooperating with them immediately. In general, this is a very bad idea.
If you have any doubt about the legality of your conduct, you should state clearly that you want to remain silent and you’d like to talk to your lawyer. People often think they can talk their way out of a criminal charge, but more often than not, they end up saying something that incriminates them in a deeper way regarding the situation. People often say things they have no idea are incriminating when answering police questions because they do not know the technical elements of criminal law (such as saying, “I only helped people prepare for the ceremony,” not knowing that assisting someone in any way with doing something that is illegal can create criminal liability). The best bet is always to assert your right to remain silent and ask to talk to a lawyer.
8. Do I have to answer the door when cops knock at my door?
No. There is no requirement that someone open the door and engage in dialogue with cops when they knock at your door. If you do answer the door, and there is something potentially criminal going on inside the house, the best approach is the step out of the house and close the door behind you.
If police ask if they can enter the house to talk to you or make sure everyone is safe, it is your right to refuse to consent to a law enforcement entry into your house. It is important you clearly and loudly state (so that others can hear it) that you do no consent to search. Police may ignore your lack of consent and attempt to search the house. If so, do not interfere with their activities, but you will likely have an argument later that the search was illegal.
If police have a warrant to search the house, you have to let them in the house (but make sure to ask to see the warrant and ask to keep a copy of it). Never touch or assault a police officer, no matter how egregious their behavior, because it could result in very serious criminal charges against you.
9. Watch out for “plain view.”
Police can enter your home or your car, regardless of your consent, when there is evidence of criminal behavior in plain view. That means if you are holding a psilocybin ceremony and there are dried mushrooms in plain view, police may be able to legally enter your home and search it, regardless of your consent. Never leave evidence of illegal psychedelic substances in plain view.
10. Don’t police have to read me my rights before using a statement against me?
In most circumstances, the answer is “no.” Police only have to read you your rights (“Mirandize you”) when they are engaged in a custodial interrogation of you. Therefore, if you volunteer information prior to being in custody, or you spontaneously say something, even while in custody, you can incriminate yourself regardless of the fact you were never read your rights.
11. Can police search your car or your bag?
There are many exceptions that allow cops to search your property. But, rather than try to understand the many exceptions (like emergency situations, etc.), the most prudent thing to do is to always refuse to grant consent for police to search any bag or car that may contain evidence of psychedelic drug use. If they ask you why you are refusing to allow them to search, just say that you believe in your constitutional rights to privacy.
12. Your (Lack of) Rights at the Border
If you, or someone you are affiliated with, is bringing ayahuasca or another psychedelic substance across a U.S. border, you don’t have many rights. Border patrol agents can search your property without your consent and without traditional protections like probable cause. In fact, this freedom to search you extends up to 100 miles within the U.S. border. There have been documented cases of people being arrested at the border attempting to bring ayahuasca into the country.
To summarize: There are a few basic rules you need to remember:
- Be discrete and avoid publicity or public use of psychedelics.
- If you are not detained, you are free to go.
- If you are detained, assert your right to remain silent and ask for your lawyer.
- Don’t try to talk your way out of an arrest. Remain silent.
- Do not consent to search of your home, your car, or your belongings. Always vocally object to any search.
Here is a good video going over how to handle police encounters:
For more information on your rights, see https://www.aclu.org/know-your-rights
To stay up to date on legal developments, follow Chacruna’s website and the activities of the Council for the Protection of Sacred Plants, see:
Following these basic rules will not guarantee that you will not be arrested or charged with a serious crime. There is no perfect set of rules for every possible situation. Knowing your rights is a basic harm reduction tactic for anyone engaged in psychedelic ceremonies or use.
This article is intended for educational purposes only and is not intended to be legal advice to any reader. Anyone considering being involved with psychedelic substances should consult with their own attorney prior to carrying out any such activity. This article is not intended to encourage or condone any violation of state or federal law
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