The Fourth Amendment and the law of bongs and Baggies

Opinion Zone,David Horrigan

The Fourth Amendment provides some of our greatest protections from government. It keeps colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers’ underwear drawers, and seizure-hungry sheriffs out of our Chevys.

Yet, as with anything, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only “unreasonable” searches. Thus, if police have probable cause for a search, it’s not unreasonable, and the Fourth Amendment won’t stop it.  In fact, the Fourth Amendment has a specific clause allowing searches with probable cause. 

A recent Massachusetts case gets to be our Case of the Week because it addresses the novel legal question: Does the presence of a bong and Baggies constitute probable cause for a search for marijuana?

Ohh drug law, where would lawyers and law enforcement be without you...

Speeding and Seizing

When Shawn Smith decided to do some urban drag racing with friends, he probably should have left his bong at home.  For readers who may be unfamiliar with the household appliance known as the “bong,” it is a water pipe, used by some to smoke marijuana.

The speeding Mr. Smith was attempting to outduel a fellow motorist when police clocked him traveling 67 miles per hour in a 40 mile per hour zone.

When police stopped the Smithmoblie, they noticed a bong and an open box of plastic sandwich bags in the car.  The police testified that, based on their experience, a bong and Baggies usually meant one thing—and it usually happens a lot in Cheech and Chong movies.  Yes, police thought they were dealing with that plague on humanity: marijuana.

Having spotting the offending bong and Baggies, law enforcement swung into action.

Police ordered Mr. Smith from the car, and frisked him.  They asked him if there were any marijuana in the car, and he said there was not. However, Mr. Smith admitted he had some herbal enjoyment in his pocket.  Police seized it, arrested Mr. Smith, and impounded his speedy car. Shockingly, they found more marijuana.

However, in a development that will be significant legally later in our story, police did not detect any marijuana smoke or residue in the bong.

Evidence Up in Smoke?

Sure, police get to do an inventory when they seize a car.  In this week’s case, police were arresting Mr. Smith for his weed, so they got to go through his car and inventory everything.  However, when police misbehave, there is a judicial remedy known as suppression of the evidence.  For those who never have time to watch Law and Order, that means the evidence is thrown out because the cops got it illegally.

In this case, because the police failed to give Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search.

However, Massachusetts prosecutors argued the bong and Baggies sitting in the car in plain sight gave the police all the probable cause they needed to search the car—Miranda or not.  In essence, the Commonwealth argued, it was the probable cause supplied by the bong and Baggies—not the Mirandaless utterances of Mr. Smith that gave police the pot.

Both a trial court and the Massachusetts Appeals Court, the commonwealth’s intermediate appellate court, rejected prosecutors’ arguments and threw out the evidence—and thus, the case.  Citing Massachusetts case law, the court held that bongs and Baggies—and nothing more—do not give the police probably case for a search.

Bong and Baggies Law

The Appeals Court distinguished Mr. Smith’s case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.

It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver.  However, Smith differed from Dolby and Correia in one, key respect.  Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.

The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong—not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.

Baggies get the same constitutional protections. 

Citing its decision in Commonwealth v. Garcia, the court held, “the observation of two lawful items—the bong and the box of sandwich bags—did not supply probably cause.  The court articulated its rationale in Garcia.

“The trooper's experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile. Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade.   To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights,” the court said.

So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped.  The moral of this week’s Case of the Week: if you’re going to go drag racing with your bong in the back seat, at least make sure it is clean.

David Horrigan is a Washington, DC, attorney, editorial director at, and former staff reporter and assistant editor at The National Law Journal.  His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail:


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