I wrote a really long post that was quite insulting pointing out the number of legal errors of
@Brewervapesalot , but that would not enlighten anyone. An appellate attorney writing so casually should be embarrassed. Let's make it easy:
Please point out any legal errors I made.
Because pounding the table seems the path chosen so far, it might be better to just cut and paste. Just ctrl+c, ctrl+v.
As to the error on probable cause, we're not talking about some judicial argument to see if the vape can be seized, we're talking about if a cop can arrest and not be at risk of liability for false arrest. For that, my expertise is that I testified twice in court as an expert (albeit in the 30-35 year ago range you guessed about my main knowledge on the topic) on paraphernalia. Sure, it is/was a nonsense finding, me being an expert, as it was based on my training and experience as a cop. But, I was an expert, who opined (the reason for going through the foundation to have me be one each time) that that spoon and that lanyard and that lighter that was in that container was what addicts use to inject illegal drugs--even though no illegal drugs were found in either case. (Yes, cross asked about no syringe and no drugs and said the bent spoon, lanyard and lighter in a kit could have been used for anything.) I don't know if my testimony was the most important or the fact the suspect(s) were previously both arrested for heroin use multiple times, but, that spoon, lanyard and lighter were held to be paraphernalia.
But, coppin' isn't my gig. I prefer arguing (heh) than forcing people to do what I say. So after ending up at another job, I went to a crappy law school. Really crappy night school law school. Still, I was top gun of the people there and passed the Bar. Over time, it became too hard to work at the CPA I was working at AND keep the legal thing going. The attempt to keep a clear firewall between legal and accounting was hard and almost got my boss sued so I determined to not be active. I just do taxes and argue with tax people. I've never been to court and litigated anything as an attorney. (As pro per, two small claims and one federal civil rights.) Please feel free to use big words in any response, I'll try to follow along.
Going to law school after being a cop will certainly focus one on certain topics. Even though I don't do anything related, I still keep up with 4th amendment law as it fascinates me. How such large issues can be resolved on the smallest facts is really interesting and geared to distinguishing facts. Believe me when I tell you having had to implement real world actions and make real decisions was a great background to understanding when studying the law later. But, that's me. Things that come up in the context of this forum also sometimes interest me. Being an court sanctioned expert and all. (That was just to cheese you off a bit. I am fully aware of how little being an "expert" means in actually understanding the law.)
Now, "A very clean vaporizer is almost like having an unused vaporizer. Without more, jonny law doesnt have much evidence or incentive to do anything, and a good attorney would destroy him on cross examination." I'm not sure how you can destroy a person for something that, at its core--depends. In fact, one of the evidentiary paths to proving it up is:
(8)expert testimony concerning its use.
I suppose part of the destruction is trying to prevent the cop from being an expert. Good luck with that. If you have a good secret on making it happen, write a book. LOTS of attorneys would like to know. That's why the training and experience claim is so powerful. Cops really ARE trained and they really DO have experience on things. Combine that with the low bar to be an expert and...a little less destruction. You might try to bring in YOUR expert who will opine on:
(7)the existence and scope of legitimate uses of the item in the community;
(4)the manner in which the item is displayed for sale;
Maybe, depending on which vape we're talking about, some of the other factors too. We'll assume this cleaned vape did not react to a test swab for cannabis--if that makes it easier. (Even though I'm not sure if you can clean a vape that well.)
You might even try the affirmative defense of the vape being traditionally used for tobacco. But, that's not destroying the cop. We're not talking about full knowledge here of a guy who has a vape that purchased it after reading about it on FC, has a history of reviewing cannabis vapes and, last week, had a video out with the vape's serial number on it and him smoking what he claimed was cannabis in it where he also said he'd do it again next week. We're just talking about a cop, who was called to TSA for a clean vape in a jurisdiction where cannabis paraphernalia is illegal.
Pretend the cop arrests him. Pretend, further, the guy was found not guilty, thus giving the ability to sue for false arrest. Pretend you sue him. Pretend you have an actual precedental case that specifically holds the training and experience of a cop expert is NOT reasonable to base an arrest decision on regarding paraphernalia. (It's not out there but probable cause is easier to understand than the qualified immunity securing arguable probable cause "standard".)
Cop (after being qualified as an expert and all the other foundational bit): "When I arrived at TSA the officer showed me the box holding the AbsolutelyLavender vape which is used to vaporize cannabis and inhale the resulting vapor."
Destroy his defense of probable cause. MY definition is "facts and circumstances that would lead a reasonable person of like knowledge and training to believe a crime has been or is being committed". You can use that or the case law "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."
