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Unmirandized defendant convicted for telling cop “some weed” is in his sock

May 14, 2012 Unmirandized defendant convicted for telling cop “some weed” is in his sock

When I was still a law student in Washington, D.C., on the university campus I saw a police car with an arrestee stomach-down on the hood of the police car. I hoped that the hood was not uncomfortably hot. I regretted the suspect being subjected to such a public display.

Right before the cop started searching the arrestee “incident to arrest”, un-Mirandized, the cop asked if he had any needles or anything else that might stick the officer. The cop said he did not want to learn the hard way of any needles.

The suspect said no. I never found out if the officer found any contraband on him. The whole process was moving so slowly that I moved on to my original destination, as much as I wanted to watch more, this having been the first time seeing an arrestee on a police car hood.

Gene Watson, Jr. was arrested in Washington, D.C., for the jailable offense of speeding over thirty miles over the speed limit. The officer started searching him incident to arrest and asked Watson, un-Mirandized, what was in his sock. Watson answered that it was “some weed.” Watson v. U.S., ___ A.2d ___ (May 10, 2012).

The officer found both marijuana and cocaine on Watson. As sometimes happens with drug possession trials, the drug chemist did not show for trial, and the prosecutor amended the charges to attempted possession of marijuana and attempted possession of cocaine from simple possession of each substance. Of all the jurisdictions where I practice, I have only seen the attempted possession charge in Washington, D.C.

When he answered that his sock had “some weed”, Watson may have thought that the cop would ignore it, because it was just “some weed”, or he might have figured that admitting to the “weed” made his defense no weaker than remaining silent, because the cops would find it anyway. Similarly, many of my drug defense clients are dumbfounded at my underlining the problem the prosecutor will have proving their drug possession case if the drug chemist does not testify; I emphasize to them that it is the prosecutor’s burden to prove beyond a reasonable doubt that it is an illegal substance, rather than its just looking like or field testing as an illegal substance, which requires a chemist’s testimony. Sadly, Virginia law allows the prosecutor to attempt to prove that a substance is marijuana merely through a police field test.

At a bench trial, the judge acquitted Watson on the attempted cocaine charge for failure to show that Watson had any knowledge of any cocaine. However, based on Watson’s admission of having “some weed”, the judge convicted him for attempted marijuana possession.

On appeal, the D.C. Court of Appeals affirmed Watson’s conviction, saying that the public safety exception — New York v. Quarles, 467 U.S. 649 (1984) — meant that the cop did not have to Mirandize him in order to get into evidence Watson’s admission that he had some weed, concluding that the cop’s question was prompted by wanting to avoid getting harmed during the search (who hides needles in a sock?). Watson.

Silence is golden. Let Gene Watson’s ordeal be a sufficient lesson of that.

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