How Much Weed You Can Hold and Not Get Busted

Posted October 4, 2011 in Criminal Law by

Last year about 140 people a day were arrested in New York City and charged with marijuana possession. The majority of those were under the age of 30 and either black or Latino. But going forward, the arrest rate should drop significantly. That’s because the city’s police commissioner, Raymond W. Kelly, made a major change to the city’s marijuana arrest policy.

Changing the Stop & Frisk Policy

Possession of small quantities of weed has been decriminalized in Alaska, California, Colorado, Connecticut, Maine, Massachusetts, Mississippi, Nebraska and Oregon, in addition to New York.

In 1977, New York State decriminalized possession of small amounts of pot. That means if someone is caught with less than 25 grams of marijuana in New York and it’s their first or second offense, they get a ticket and pay a $100 fine, but they’re not criminally charged.

If, however, the marijuana is in public view, the penalty is more severe. Even for small quantities, it’s considered a Class B misdemeanor, which means violators face up to three months in jail, a $500 fine—plus a criminal record that can stay with them for life.

It’s easy to assume the penalties for having pot in public view are designed to cut down on drug dealing. But for many of those arrested in New York City, that’s not the case. Instead, they were arrested after emptying their pockets during what’s known as a stop and frisk.

Stop and frisk is a controversial technique where police stop people, frisk them and then ask them to empty their pockets. Those who have pot in their pockets suddenly have it in public view, and police arrest them.

"The newsoriginal use of the ‘public view’ interpretation was leaving suspects in a no-win situation," says New York criminal defense lawyer Justin M. Roper, a partner at Nass & Roper Law, LLC. "If you empty your pockets for the officers then you’re liable for their contents; if you disobey the officers then you must have something to hide. It’s like a police officer forcing you to take your clothes off and then arresting you for public lewdness."

No more, Kelly told New York City cops. Although the stop and frisk policy will continue, police are no longer required to arrest people who publicly show marijuana while complying with an officer’s request to empty their pockets.

Roper says the change was necessary in part because criminal convictions have such a lasting effect on those found guilty of crimes.

"A criminal record is especially cumbersome in New York because of the lack of expungement of convictions," Roper says. "Unlike other states, New York doesn’t ever allow you to wipe the slate clean. A criminal record will follow you around wherever you go and remind you how easy it is to become a statistic."

Chicago, Milwaukee and Philadelphia have decriminalized pot possession, even though it can still bring criminal charges elsewhere in Illinois, Wisconsin and Pennsylvania.

How New York Compares

New York City’s decision to end the stop-and-frisk marijuana arrests brings it in line with several other states and big cities that have completely decriminalized possession of small amounts of pot—regardless of whether it’s in public view.

Possession of small quantities of marijuana has been decriminalized in Alaska, California, Colorado, Connecticut, Maine, Massachusetts, Mississippi, Nebraska and Oregon, in addition to New York.

In California, for example, possession of 28.5 grams or less is an infraction punishable by a $100 fine. Selling any amount of pot is a felony, but for mere possession, the law doesn’t distinguish between marijuana that’s publicly visible and that which is out of view.

In some states where possession is still a crime, major cities have passed laws decriminalizing it. For example, Chicago, Milwaukee and Philadelphia have decriminalized pot possession, even though it can still bring criminal charges elsewhere in Illinois, Wisconsin and Pennsylvania.

In Illinois, for example, marijuana possession of 2.5 grams or less is a misdemeanor with a possible penalty of 30 days in jail and a $1,500 fine. Possession of 2.5 to 10 grams of pot is also a misdemeanor, punishable by 6 months in jail and a $1,500 fine. Possession of 10 to 30 grams is also a misdemeanor, punishable by a year in jail and a $2,500 fine.

Illinois does, however, allow first-time offenders to get off without a criminal record. For the first conviction, an offender can get 24 months of probation and the charges will be dismissed if they successfully complete probation.

Still, some states take a harder line toward any marijuana possession.

In Pennsylvania, marijuana possession of 30 grams or less is a misdemeanor with penalties of up to 30 days in jail and fines up of up to $500. A first-time offender can receive probation without a verdict being entered into the offender’s record. There’s no "public view" component to the law.

In Texas, marijuana possession of 2 ounces or less is a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine if the person has prior felony convictions. Otherwise it’s a mandatory sentence of drug treatment and probation. There’s no "public view" component to the law, but the criminal charge and penalties are more severe for people charged and found guilty of selling marijuana.

Related Resources on Lawyers.comsm

- Contact a parole and probation lawyer in your area for specific legal advice, and read about Selecting a Lawyer
- Need a form? Access hundreds of Business/Personal Legal Forms
- Access more information about criminal law
- Visit the criminal law forum
- Follow us on Twitter and become a Fan on Facebook to join the conversation about Lawyers.com topics online
- Download the Lawyers.com app for the iPhone or access the Legal Dictionary