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NYPD Marijuana Enforcement Policy Updated on November 11, 2014 - The Emperor's New Policy

By: Don Murray, Partner Shalley and Murray

November 14, 2014

On November 11, 2014, the NYPD issued Operations Order Number 43, titled "Enforcement of Criminal Possession of Marijuana, Fifth Degree, Subdivision One."  Click on the link to have a look at the original, with some significant portions highlighted by me.

Reading the articles presented in the media regarding this policy is a classic demonstration of how news organizations routinely misunderstand the significance of legal issues.  To read the various articles about this policy shift is to come to the conclusion that the NYPD is now somehow "looking the other way" with vast numbers of marijuana cases or that there will be some sort of dramatic impact of this new policy that will be noticeable to people who are not part of the criminal justice system.

After actually reading the NYPD policy, however, I don't think this change will have as large an impact as people might otherwise believe..

First, it must be understood that this is a POLICY of the NYPD.  This is not a change in the law.  It is not now LEGAL to possess marijuana for recreational purposes in New York City.  This new NYPD marijuana policy is simply a statement of intention by the NYPD to take one set of actions against people in possession of marijuana, in certain limited circumstances, as opposed to another set of actions.  

The police are afforded a certain amount of discretion under the law to take a variety of actions in many situations.  The police often have four basic options when confronted with potential illegal behavior.  Option one is to arrest someone and "put him through the system" for arraignment (first appearance) within 24 hours.  Option two is to arrest someone but to give him a Desk Appearance Ticket (DAT), which provides a later date to return to court for arraignment.  Option three (available in some circumstances) is to write a pink summons or "C Summons" on the spot which sends the person to a special summons court, which is a small subdivision of the regular Criminal Court.  Option four is to decide that there is an insufficient basis to do anything at all and to let the person being investigated go without any further action.

Clearly some of these options will not be available for those charged with the most serious sorts of offenses.  (You aren't allowed to get a pink summons for a robbery charge, for example.)  But for many minor misdemeanor offenses, all of these options are available.  They have always been available and will always be available under New York State law.

Nevertheless, in order to make enforcement as uniform and fair as possible, the NYPD provides guidelines to officers that dictate how to handle certain situations.  These guidelines, or policies, generally tell police officers what to do, even though in theory, the law allows them all possible choices.

In the case of this most recent operations order, for example, the NYPD is making a couple of slight changes, in certain limited circumstances, to how they handle this choice of what to do with people with small amounts of marijuana.

It doesn't mean that people with small amounts of marijuana are going to be let go or ignored.  It means simply that people with small amounts of marijuana, in certain limited circumstances, are going to be getting pink summonses instead of desk appearance tickets. 

While this does in fact represent a far less intrusive process for the person who gets the pink summons instead of the desk appearance ticket, the number of people who actually experience the different approach may not actually be as large as some seem to think.

The Criminal Justice System as a whole may experience a noticeable change in the amount of Desk Appearance Tickets given, which are more expensive for the Courts than pink summonses, but this is not going to be particularly noticeable to individuals, especially the individuals who still have to deal with a pink summons..

The Order is Not Sweeping and Has Strict Limitations

I have highlighted some key elements of the NYPD order.  These highlights illustrate where the new NYPD policy restricts its own application.  I think some of these limits have not been given their true significance in the analysis so far available from various news outlets.

"Allows"

Right off the bat, the order uses the term "allows" which immediately suggests that it is optional for the NYPD officer who is confronted with a situation to which the order might apply.  "This order allows..." is the very first sentence.  This should suggest to the reader that there is no RIGHT to getting a pink summons as opposed to a DAT for a person who apparently is covered.  Therefore, I wouldn't advise people confronted by the police in such a situation to tell the police that they "have to" give them a pink summons now.  As a general rule it isn't a good idea to tell the police who are investigating you what to do to begin with, and in this case, it isn't even half true.

Order only applies to possession of 25 grams or less in public view - This Changes a Lot Less than People Realize

Further, the NYPD has decided that the policy applies only when the amount being possessed in public view by a person is 25 grams or less.  

You should realize that the 25 gram cutoff is already in place in the law.  Penal Law Section 221.10 only applies to simple possession when the amount is more than 25 grams. unless that possession is in public view or burning.  The NYPD policy seems to suggest that they are doing people a favor by treating 25 grams as a violation level offense and giving a pink summons.  But less than 25 grams is already only a violation as long as it isn't in public view or burning.

Public View

The "big change" will affect those who are found to be in possession of 25 grams or less of marijuana in public view.  The problem is though, that this particular subset of potential arrestees is probably in reality fairly small.

Think about it for a second.

How is it that the police will come across vast numbers of people with bags of marijuana in public view?  I suppose there may be some people walking around holding out their bags of marijuana as they stroll down the lane, but most people are likely to be keeping their bags of marijuana in their pockets or other fairly secure locations.

How will it be that people are observed by the police to have these stray bags of marijuana in their possession?  Maybe during automobile stops, when they forget to move their bag of marijuana off the seat?  How likely or often will that happen?

Recently, the NYPD retreated from a policy where they would absurdly charge people with possession in public view when they insisted that a person empty his pockets and he removed a bag of marijuana.  In this circumstance, where the police were the ones insisting that the pocket be emptied, the NYPD used to charge people with the possession in public view.  This was patently absurd.  As a result, this sort of nonsense supposedly no longer goes on, and people in this situation are charged appropriately with the violation offense and given a pink summons.

Therefore, unless the police are retreating to this older policy and claiming that they are doing people a favor by giving them pink summonses when they find 25 grams or less of marijuana in their pockets (that they themselves ordered emptied), the number of times the police are actually going to run across people displaying bags of marijuana in public is actually going to be pretty small.

Therefore, there really should not be some dramatic impact of this new policy with respect to cases of simple possession of 25 grams or less of marijuana.

Therefore, I'm not sure why the policy characterizes their actions as treating less than 25 grams as some sort of "lesser included offense".  Less than 25 grams is already a violation, except in those rare situations in which the police happen upon people waving marijuana bags around in public as long as it isn't burning in public view.  

Burning in Public View

This is in my view the absolute key provision of the policy, and the provision that makes its impact limited.  According to paragraph 2 of the Order, this new enforcement policy will not apply to anyone found to be in possession of marijuana that is burning in a public place.  People determined to be in possession of burning marijuana in public will be given a Desk Appearance Ticket as usual.

In my experience (admittedly unscientific anecdotal evidence), the majority of small time marijuana cases (especially if you factor out those cases where the police cause the marijuana to be in "public view" by ordering a person to empty his pockets) are cases where the person is charged with possession that is burning  in public view.

In my experience, I rarely these days see simple misdemeanor possession of marijuana cases charged as a misdemeanor.  

My experience is that most marijuana cases these days that are charged as misdemeanors are charged as the Penal Law Section 221.10 burning in public view cases.  (Think four people caught smoking a joint in a park, for example.)

According to paragraph 2 of the NYPD policy, all burning in public view possession cases will continue to be processed as misdemeanors and presumably by way of a Desk Appearance Ticket.  If this provision is followed, then I really don't imagine there will be much of a noticeable impact in the enforcement of marijuana charges.

If you think about it, it is most often the simple fact that someone is smoking marijuana in public that will draw the police attention in the first place.  This is what will typically start the ball rolling toward a marijuana arrest.

Of course, if there are vast numbers of people being searched for no reason, and if these searches result in vast numbers of misdemeanor possession of marijuana DATs, then this policy will have a greater impact than I suggest.  But whether or not there are vast numbers of people being searched for no reason, my experience is not consistent with seeing lots of straight up marijuana possession DATs.  In my experience, when police are perhaps less than proud of the initial search, pink summonses may be the order of the day as it is if those searches result in the recovery a "small amount" of marijuana.

Also interesting in this respect is the section of the order labeled "Additional Data" on Page 4.  Here you will note that "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..." (emphasis added).  This is quite a common situation, by the way, where multiple people are arrested for possession of a single joint, whether in a car or elsewhere in public.  

Therefore, as long as the NYPD continues to process the burning in public view cases as always, this new operations order is not the big sea change in policy that it seems to be being presented as.

How will People be Affected by This Benefit

Part of the justification of this policy change, to keep large numbers of people from having to suffer the problems associated with formal arrest and fingerprinting associated with a Desk Appearance Ticket is a nice idea.  There are a couple of issues, however, that cast some doubt on the scope of this benefit.

First, however, is the issue of whether this new policy is really going to affect that many people, on my unscientific anecdotal assumption that most people are not charged with straight up marijuana possession misdemeanors, especially in light of the NYPD backing off their absurd policy of charging the possession in public misdemeanor in cases where they order a person to empty his pockets and locate marijuana.  They are either charged (in my experience) with burning and  in public view or the marijuana violation.

Second, while it is true that the DAT does generate an arrest that may create some potential difficulties down the road, issuing a pink summons isn't exactly a free pass either.  There are any number of situations in which a person who receives a pink summons will be required to reveal the incident, and also situations in which the incident will be located regardless of whether the person reveals it.

Want to become a lawyer?  When you pass the bar exam, you have to endure a thorough background check.  Woebetide the candidate who fails to mention the pink summons incident.  The questions asked in this sort of background check are so broad that they very clearly impose upon the candidate the obligation to reveal such an incident, regardless of the outcome.  The Appellate Division wants to know everything other than parking tickets - and they have the means to find out regardless of your willingness to reveal it.

Similarly, most law enforcement background checks and other Government regulated industries' background checks will pick up pink summons matters.  Therefore, while it seems nicer to get a pink summons, it doesn't shield you from every form of scrutiny in the world.

Likely Outcomes

In terms of the likely outcome of any of these offenses, whether in the DAT courtroom or the Summons courtroom, in many cases an Adjournment in Contemplation of Dismissal (ACD) can be arranged, depending on a few factors that should be reviewed with a lawyer.  An ACD is a sort of delayed dismissal.  Sometimes, this can be negotiated straight up.   Sometimes, some community service might be required.  Sometimes, a class to determine substance dependence is required.  While an ACD can be a wonderful outcome, there are actually some subtleties involved, especially for non-citizens.  

Other Limitations

There are any number of disqualifying factors for application of this policy as well.  Some seem sort of obvious (for example, if the person has an active warrant for his arrest).  But there are 4 stated reasons the policy would not apply.

  1. Active warrant
  2. Suspect has an "I-Card" - police are looking for him.
  3. Suspect being charged with other misdemeanor offense
  4. Suspect doesn't have proper identification (defined in the order although officer is given discretion to accept forms of ID not specifically listed).

Conclusion

Given that the NYPD policy only applies to what I believe is a small subset of potential cases , the benefits of this policy would seem to only come rarely.  I don't see how this policy is really going to change much of anything.  The 25 gram limit already exists in the law and is what distinguishes the violation from the misdemeanor anyway.  The only difference is in that small subset of cases where people are somehow observed to be publicly in possession of marijuana.

Or Just Watch This SNL Skit

If you prefer an audio visual (and funnier) approach to this same topic just click on this link to watch a Saturday Night Live skit that does a great job of summing up the point of this article - all in about four minutes or so, and featuring Woody Harrelson.

New York City criminal defense lawyer Don Murray dissects the November 11, 2014 NYPD Order that supposedly changes the way the NYPD processes certain types of marijuana accusations in New York City.  Analysis of the actual policy document reveals that the "changes" may be smaller than people realize.

Don Murray is a partner in Shalley and Murray, a long established criminal defense law firm with offices in New York City and Westchester County, New York.  The New York City office is located at 80-02 Kew Gardens Road, Suite 702, Kew Gardens, NY  11415.

The telephone number is 718-268-2171.

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