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Friday, May 15. 2009
DEA image in the public domain. Federal courts repeatedly impose harsh prison sentences, including with drug sentencing schemes that should not exist in a just world. Although the federal sentencing guidelines by now are advisory only, many federal judges still rely heavily on them, as did the sentencing judge of Timothy Jenkins, who gave and applied to Mr. Jenkins a four-level offense score enhancement for being a felon in possession of a firearm in connection with another felony offense. U.S. v. Jenkins, __ F.3d _ (4th Cir., May 15, 2009). What was the other felony offense? Possession of less than a third of a gram of cocaine base. How much is a gram? It is one-thirtieth of an ounce, a tiny amount. In any event, this enhancement for less than a third of a gram of cocaine increased Mr. Jenkins's sentencing guidelines range from 46-57 months to 70-87 months. The judge gave him a 71-month sentence. In discussing Jenkins's complaint about the four-level enhancement, the Fourth Circuit wrote: "Jenkins tries to turn this whole matter into a question of law. He makes two arguments as to why the district court erred in finding that the revolver 'ha[d] the potential of facilitating' his possession of cocaine. First, he suggests that the finding was improper as a matter of law because he possessed only a small amount of drugs for personal use, rather than a larger amount for distribution. This argument implies that the enhancement requires a drug trafficking offense. It requires only 'another felony offense,' however, and thus a drug possession offense is sufficient to support the enhancement when, as in this case, it constitutes a felony under state law. See U.S.S.G. § 2K2.1 cmt. n. 14(C) (defining 'another felony offense' as including any state offense 'punishable by imprisonment for a term exceeding one year'). Furthermore, it is clear that the possession of a firearm can facilitate a simple drug possession offense. A firearm can embolden the actor to possess the drugs or provide the actor protection for himself and his drugs, which are likely to be personally valuable even in small amounts." Jenkins Obama's drug policy chief does not like the term "war on drugs", which is actually a war on the people. Now it is time to stop the war on the people, too. Jon Katz
Monday, May 11. 2009
Image from public domain. Marijuana is wonderful medicine. Pharmaceutical and liquor/beer/wine companies do not want marijuana interfering with their turf, because people can economically grow their own high quality marijuana, thereby only enriching the soil and sellers of gardening products. Here are sources about marijuana's benefits to delay and address Alzheimer's disease: - Here is NORML's article on the topic, with some excellent links. - Here is a scientific paper on the topic. Click the pdf link. - Marijuana for Alzheimers blog. Jon Katz
Sunday, May 10. 2009
The criminal justice system is so overgrown that crime evidence is bound too often to get mixed up, misplaced, and contaminated. For drug prosecutions, the suspected drugs may pass through several hands before being tested by a chemist. Often, the seizing police officers have the alleged controlled dangerous substances field-tested and sealed. From there, the suspected drugs may go to a drug vault at the police station, by the seizing officer or by another officer. From there, a courier may bring the alleged drugs to a storage container at the chemist's lab. Sometime thereafter, the alleged drugs will go to the chemist, whether the chemist gets them from the drug vault or has someone bring them to the chemist. Consequently, usually more people than the merely the seizing officer and chemist are in the chain of custody. Prosecutors and cops can make much about heat-sealed bags keeping alleged drugs tamperproof. Is that so? What if the seizing and packaging police officers contaminate the alleged drugs -- before sealing is complete -- with drugs they touched earlier in the day? What happens if a police officer later opens the plastic bag of alleged drugs, ever so carefully so as to avoid detection, and steals some to sell? That is another opportunity for the alleged drugs to be tainted or contaminated. The chemist who opens the bag of alleged drugs might have contaminants everywhere -- on clothes, hands, hair and in the air -- to cause a positive chemist's eading for drugs even if the alleged drugs contained no controlled dangerous substances at all immediately before being seized. For the foregoing reasons, it is sad that Virginia's intermediate appellate court two months ago signaled to judges that little evidence is needed in court to prove chain of custody in drug cases. Hargrove v. Virginia, 53 Va. App. 545 (2009). In part, Hargrove says: "'A court need not hear, however, from every witness who physically handled the samples for the certificate [of analysis] to be admissible. Nor must the Commonwealth's evidence 'exclude every conceivable possibility of substitution, alteration, or tampering.'" Anderson v. Commonwealth, 48 Va. App. 704, 717, 634 S.E.2d 372, 378 (2006) (quoting Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357, 4 Va. Law Rep. 502 (1987)), aff'd, 274 Va. 469, 650 S.E.2d 702 (2007), cert. denied, 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008). 'It need only provide "reasonable assurance" that the evidence obtained by the police was the same evidence tested.' Id. (quoting Vinson, 258 Va. at 469, 522 S.E.2d at 177) (emphasis added)." Hargrove v. Virginia, 53 Va. App. 545 (2009). Of course, if the law and judges required prosecutors in drug cases to present solid evidence of chain of custody, the court system would become so backlogged that I might finally reach part of my wish of legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory sentencing, eliminating the death penalty, and eliminating per se rules for drunk driving cases. Jon Katz
Monday, April 20. 2009
Today, Underdog is three years old. We launched on 4-20-06.with this tribute to 420. Reprinted below is our 4-20-08 anniversary blog entry: Since our 2006 launching, Underdog has blogged every weekday, except for holidays and a few vacation days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away). Our first anniversary blog entry is here. Why do I blog? Through blogging, I keep a valuable diary that helps keep my written and oral pen sharpened, my self-awareness deepened, and my bully pulpit strong. Also, it can be more important to touch one person in the audience in a valuable way than for thousands to receive the message in a much less profound way. My motivation for blogging goes far beyond having a web presence for our law firm, to a thirst to express critical and undiluted messages about justice, and to increase the number of people who will assert their rights with the police so as never to need our criminal defense services in the first place.. So many civil liberties need to be won and re-won worldwide. One of the most effective ways for a non-full-time writer or television/radio personality to get out the pro-civil liberties message is through blogging. Imagine, just two decades ago, before Gorbachev took over in the Soviet Union followed by the fall of the Berlin Wall, samizdat dissenting publications in the Soviet Union often got distributed by recipients (risking prosecution) retyping and distributing the publications, when printing presses and photocopiers were scarce, and strictly controlled by the iron-fisted government. Today, except in such places as North Korea, which even bans cellphones, dissenting writings can travel to a much wider audience with lightning speed over the Internet from nearly any country. Consider the high price that such literary greats as Pramoedya Ananta Toer and Vaclav Havel paid for writing and distributing their writings under severely oppressive regimes. When I first visited Indonesia in 1988, the brutal government apparently only kept Pramoedya Ananta Toer -- probably the nation's most famous writer and its greatest potential engine to advance the national and still rather newborn Bahasa Indonesia language to unite a nation that never had been much united before independence -- out of prison (after being in and out of prisons many times before, under the Suharto and Sukarno regimes and by colonial occupiers before that) and away from government executioners and assassins in order to prevent a foreign aid and trade stoppage had Indonesia done otherwise. His books were banned in Indonesia at the time, although some booksellers clandestinely sold them under risk of imprisonment. Speaking on tour when I met him in 1999, Pramoedya was deeply emotional when he said that the Indonesian government's efforts to ban his books was like trying to cut off his life. By that time, and to this day, Pramoedya's writings were much more freely available in Indonesia than when I first visited. Pramoedya went to great lengths to keep his written and oral voice going. For instance, he started his Buru tetralogy orally through a chain of his fellow Buru island prisoners, at the times he was denied pen and paper, only to complete the multi-level mosaic story in book form years later. Sometimes he was able to smuggle out notes "'written under adverse conditions". Subsequent to the Prague Spring, before Gorbachev, Vaclav Havel was repeatedly hounded and oppressed for his writings. Index on Censorship once ran an article on Havel showing him smiling and carrying a sack of beer ingredients weighing down his body -- but not his spirit -- at the brewery where he worked. Pramoedya and Havel paid high prices to keep their writing voices heard. I pay a small price if any. Perhaps the only price I pay is to alienate potential clients and others both by my plain messages and often very direct words, but sometimes people come around towards some of my ways of thinking, even if years later, and even if my words only have a small influence on the turnabout. While I understand the benefit of speaking in a diplomatic manner to open listeners' ears, I do that enough in court, and tend to be more direct and unvarnished in Underdog, but not as unvarnished as my brother lawyer Marc Randazza. Just as musicians benefit from playing before live audiences and from their feedback, I benefit from blogging before our Underdog audience and from receiving feedback online and on the street. Please keep your comments and emails coming. Jon Katz. ADDENDUM I - HAPPY 420 Here is our first blog entry: April 20, 2006 Supporting marijuana legalization on 4/20 and every day. In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. ADDENDUM II - HAPPY BIRTHDAY, JUSTICE STEVENS Today, Supreme Court Justice John Paul Stevens turns 89 years old. Justice Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy.
Thursday, March 26. 2009
War breeds atrocities. We saw it with Abu Ghraib, My Lai, mini-My Lais (see here, too), and the list continues pathetically and endlessly. Consequently, great care must be taken by the government in deciding when and how to wage armed war and war in the criminal justice system, and in minimizing the risks and occurrences of atrocities. Why on earth would we allow the risk of violent atrocities and atrocities against the Constitution in the drug war, particularly when it comes to marijuana, which drug would give us a much better society if all liquor drinkers consumed marijuana, instead? Last July, this senseless war on marijuana led to Prince George's, Maryland, police killing (murdering?) two dogs of Berwyn Heights's mayor when executing a marijuana search warrant that found no evidence of any crimes. Flash forward to March 11, 2009, when police shot unarmed Derek Copp in the chest -- ripping through his lung and liver -- when executing a marijuana search warrant to find but apparently a few tablespoons of the weed. Thus far, it appears the police are not revealing any details other than to admit that a sheriff's deputy shot him, and that Mr. Copp did not create any confrontation. Derek's father says Derek -- who fortunately survived -- reported that he heard knocking at the door, did not know it was the police, used his arm to shield the lights in his eyes (see here, too) from what turned out to be from the police, and was shot. As is his right under the Fifth Amendment, the sheriff's deputy who shot Derek Copp was refusing to talk with police investigators about the incident, as of ten days ago. I do not quibble with the cop's asserting his Constitutional rights; I advise the same to my own clients. Clearly, though, police abuse must stop now, and marijuana must be legalized. Your voice is needed to make it happen. Jon Katz ADDENDUM: Thanks to Students for Sensible Drug Policy for alerting me to this story (accepting donations here for the SSDP, with the first $500 going to Derek). Thanks to the following people for covering this story: - M-Live (by the group publishing such periodicals as the Ann Arbor News) compiles all articles on this matter here. - The Drug War Chronicle has an in-depth article from last week.
- The Raw Story and Radley Balko covered the story.
Monday, March 2. 2009
In early February 2009, I wrote about the dissonance between the then-recent federal raid on several Los Angeles medical marijuana dispensaries and Barack Obama's disinclination --expressed during the campaign -- to waste federal resources to interfere with medical marijuana activities in states that permit doctors to prescribe marijuana as medicine. Fortunately, on February 27, 2009, Attorney General Eric Holder reassured that the dissonance will be eliminated with no more such medical marijuana raids. However, this positive development does not bring medical marijuana users out of the woods automatically. Not all states permit marijuana dispensaries. In California, where dispensaries are found in many parts of the state, the restrictions are tight in San Diego, where the local newspaper reports: "Cesar Solis, a San Diego assistant police chief, said department investigators do not target legitimate medical-marijuana caregivers or patients. 'But most of the dispensaries we've investigated are not in compliance,' Solis said. 'They're generally claiming to be caregivers for patients. The patients may be legitimate, but the caregivers are not, and we're finding excessive amounts of marijuana at these places.' Qualified caregivers in San Diego can have no more than 2 pounds of marijuana on hand." Fortunately, medical marijuana users have other beautiful parts of California to move to besides San Diego.
Thursday, February 19. 2009
Prosecutors like getting drug analysis reports into evidence at trial without the chemist's presence, so that chemists may test more drugs, more drugs, and even more drugs in an effort to nab more people in the unjust drug war. Praised be the D.C. Court of Appeals today for having put the prosecution's feet to the fire by requiring the presence of the chemist to testify where the drug analysis report is not delivered to the defense within the statutorily required time to give the defense an opportunity to decide whether to arrange for the chemist's presence to testify at trial. Eric R. Washington v. U.S.,, _ A.2d _ (D.C. App. Feb. 19, 2009). In Washington, on appeal the prosecution conceded that the defense was not delivered the chemist report on time to trigger the defendant's statutory requirement to seek the chemist's presence at trial. The trial court should have reached the same result, but did not. Thanks to the D.C. Court of Appeals for reaching the right result. Jon Katz
Friday, February 6. 2009
Image from public domain. Imagine if everyone drinking alcohol tonight switched to puffing marijuana, nibbling a hash brownie, or downing a marijuana smoothie. As a result, fewer people would beat the sh*t out of others, fewer would act like raving lunatics, fewer would be heaving chunks, and some people would be receiving medicine superior to many of the pills and injectables peddled by Pharmaceutical, Inc. (Do not drive under the influence of anything, and marijuana can be a wonderful sleep aid at home to not even need to consider getting behind the wheel.) Alcohol can be nice in moderation, but too many people overindulge and overdamage with alcohol as a result. Moreover, alcoholism is rampant and tough to beat, but not marijuana-ism. if it even existed. Therefore, all the power to Michael Phelps for having been photographed smoking from a bong rather than from a liquor or beer glass or bottle, aside from the activity apparently having been in a state where it is illegal to do so. On the White House front, thanks to Barack Obama for having previously stated his disinclination -- NORML calls it a pledge -- to waste federal resources to interfere with medical marijuana activities in states that permit doctors to prescribe marijuana as medicine. With the February 2, 2009, Drug Enforcement Administration raids on Los Angeles medical marijuana dispensaries (Drew Carey introduces us to this wonderful Los Angeles dispensary), Obama has the opportunity to make good on that stance by ordering the immediate return of property seized from the dispensaries, cancelling any criminal investigations or actions involving the dispensaries, banning any further such raids, and immediately replacing George W. Bush's appointees responsible for the raids with appointees who will stay out of the hair of states that permit medical marijuana. To take action to stop federal medical marijuana raids, take a look at the Drug Policy Action Network's suggestions on doing so. You can email President Obama here. Obama should be reminded of his previous statements on this issue: "I would not have the Justice Department prosecuting and raiding medical marijuana users ...It's not a good use of our resources." (Comments from 2007.) NORML's website quotes Obama as saying: "When it comes to medical marijuana, I have more of a practical view than anything else... My attitude is that if it’s an issue of doctors prescribing medical marijuana as a treatment for glaucoma or as a cancer treatment, I think that should be appropriate because there really is no difference between that and a doctor prescribing morphine or anything else. I think there are legitimate concerns in not wanting to allow people to grow their own or start setting up mom and pop shops because at that point it becomes fairly difficult to regulate.” (March 2008.) Before going to sleep tonight, please let President Obama hear your voice to stop federal interference with state-permitted medical marijuana activity, and feel free to tell him to support marijuana legalization while he is at it. Jon Katz
Wednesday, February 4. 2009
Bill of Rights. (From the public domain.) Recently, I won a marijuana possession case in federal magistrate's court. I won the case not through pulling any rabbits out of the hat, but by using procedural rules and procedural strategy to my advantage. My client was issued a citation for possessing a small amount of marijuana in a national park. The cop issued him a citation that looks similar to a speeding ticket, and left. The citation provided the alternative to pay the ticket rather than needing to defend in court. The upside of paying the ticket was eliminating the risk of incarceration and the need to pay a lawyer. The downside is that the payment of the fine can be considered a conviction for allegations of violating existing probation for an earlier case, and when the defendant applies for a security clearance, applies for a job, has a bond set for any future arrests, and gets sentenced for any future conviction. Here are some arguments I made to try to win the case. I welcome your thoughts, particularly the thoughts of colleagues who have defended cases in federal magistrate's court: My client was charged under the Interior Department's regulation against possessing controlled substances on national park property; the maximum possible incarceration time for such a charge is six months. For my motion to suppress, I argued, unsuccessfully, that the park rangers had no authority to seize, search, nor arrest my client. I wrote: "The discovery indicates that exclusively park rangers were involved in the investigation, interrogation, search and arrest of Defendant. However, for the following grounds, the rangers were without lawful authority and jurisdiction to do so: "16 USCS § 1a-6(b) provides, inter alia: 'In addition to any other authority conferred by law, the Secretary of the Interior is authorized to designate, pursuant to standards prescribed in regulations by the Secretary, certain officers or employees of the Department of the Interior who shall maintain law and order and protect persons and property within areas of the National Park System.' 16 USCS § 1a-6(b) (emphasis added). "However, a careful search of the Code of Federal Regulations and the United States Code finds no authority conferred by the Secretary of the Interior nor statute to park rangers to 'maintain law and order” in the National Park System. First, a Lexis search for the term “ranger” within the statutory language in the United States Code only finds [the following omitted] results that do not convey authority on rangers to 'maintain law and order.' "Second, a Lexis search for the terms r'anger' and 'Interior' within the Interior Department’s regulations at Title 36 of the Code of Federal Regulations only reveals the following [omitted] Interior-related regulations (omitting those results for the Agriculture Department), and none of the resulting regulations convey authority on rangers to 'maintain law and order.'" For my motion to dismiss the prosecution, I unsuccessfully argued that the Interior Department's criminal rule against controlled substances was unconstitutional: "The Interior Department’s regulation under which Defendant is being prosecuted represents an instance where Congress 'delegated excessive legislative power' and 'upset the constitutionally mandated balance of powers among the coordinate Branches.' Mistretta v. United States, 488 U.S. 361, 413 (1989). "The statute that delegates the Interior Secretary the authority to establish the regulation applicable to Defendant’s criminal prosecution is overly vague and overbroad: "The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by this Act shall be punished by a fine of not more than $ 500 or imprisonment for not exceeding six months, or both, and be adjudged to pay all costs of the proceedings.
"16 U.S.C. § 3 (emphasis added). Consequently, with the foregoing statute, Congress 'delegated excessive legislative power' and 'upset the constitutionally mandated balance of powers among the coordinate Branches.' Mistretta v. United States, 488 U.S. 361, 413 (1989). Consequently, the ongoing prosecution of Defendant is unconstitutional." At the conclusion of motions arguments, the prosecutor moved to reschedule the trial to another day, in order to bring the drug chemist to court from 150 minutes away. I argued the prejudice of rescheduling, seeing how my client already was missing work to be at trial, and seeing that my client's costs increase each time he and I take the hours-long trip to this court. The judge denied the prosecutor's motion, and I wonder how much that this had to do with the long distance needed for me and my client to drive back to court. Curiously, the prosecutor decided to proceed to trial even without the chemist. However, the chemist's absence did not automatically guarantee a victory. For instance, if the judge believed that the defendant admitted that the suspected marijuana was actual marijuana, such an admission only needed slight corroboration for the judge to have been able to use the admission against him. The possible corroboration came in the form of the cop's testifying, over my objection, that some seized items smelled either like marijuana (which can reek when burnt ) and unburnt marijuana (which is very difficult to identify in small amounts). Fortunately, the prosecutor was unable to present any damaging corroborated admission from my client, and we won, which is the outcome I wish for all marijuana defendants. I still look forward to the day when marijuana is fully legalized. Jon Katz
Monday, January 5. 2009
Bill of Rights (From public domain.) How many judges have experience smoking marijuana, smelling others who have smoked marijuana, and smelling raw marijuana? At least one judge has such experience. Soon after the Senate bounced Robert Bork, Ronald Reagan nominated a then-forty-one-year-old Douglas Ginsburg to the Supreme Court. His nomination went up in smoke within days after his admission that he had smoked marijuana while a law school professor. He has remained all this time on the D.C. Circuit. Certainly, marijuana smoking should not disqualify one from the bench; nor should marijuana be illegal in the first place. Whether or not it is a virtue for a judge to have had no direct experience with marijuana outside the courtroom, certainly judges should not be relying on other members of the bench to create judicial notice that marijuana smell provides sufficient probable cause for a search. Worse, judges should not permit unscientific and self-serving trial-level testimony of cops to create such a notion. For one thing, when smoked, marijuana reeks, but, when unburnt, it can be very difficult to detect, despite the often flippant and probably downright lying claims of police to the contrary, and particularly when the raw marijuana quantities are small and not right under nor right inside the cop's nose. For another thing, there are different varieties of marijuana, and I would like to know if that can affect the stink of burnt and raw marijuana. Most importantly, for judges to take such judicial notice removes defendants and their own lay and expert witnesses from the factfinding equation. Conducting reliable scientific studies of people's ability to smell burnt and unburnt marijuana over the variables of distance, quantity and passage of time is expensive, which probably helps explain why I only know of one study thus far that debunks the notion that unburnt marijuana is easy enough to smell to provide probable cause to search. The study was conducted by Richard Doty, Ph.D., of the University of Pennsylvania, whom I have called before to the witness stand as a raw marijuana smell expert. In any event, it appears that too many appellate cases finding marijuana odor as sufficient to justify searches fail to distinguish analytically, in their written opinions, or both, as to whether the marijuana is burnt or raw, of a high quantity or not, close or far from the smeller's nose, or interfered by wind, other odors, or even stuffed or dull noses. Consider the following appellate cases in that regard: - Praised be the Indiana Court of Appeals for recently upholding suppression of a search conducted on the basis of a cop's claim of smelling a small quantity of unburnt marijuana. Indiana v. Holley, No. 02A03-0808-CR-406 (Dec. 23, 2008). In pertinent part, Holley says: "There was no evidence that Officer Boles [the sole smelling officer] had any formal training regarding the detection of raw marijuana by odor or in distinguishing it from other substances. While there was evidence that he had encountered marijuana during the course of his duties, there was no evidence that he was qualified to know its odor or able to distinguish its odor from that of other substances. "On the basis of this evidence, we cannot say that the State sustained its burden of proof justifying the warrantless search of Holley.s vehicle. The evidence of Officer Boles's qualifications to identify the presence of raw marijuana by odor alone was not without conflict and is insufficient to overturn the negative judgment of the trial court. While the testimony of a police officer shown to be qualified by training or experience to detect the odor of raw marijuana may be sufficient in a particular case to demonstrate the existence of probable cause as a matter of law, the State failed to make such a showing here." Indiana v. Holley. Thanks to John Wesley Hall for blogging on Holley. - Last year, Virginia's Court of Appeals permitted a search based on the smell of raw marijuana, saying: "As many courts have held, 'if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.'" Bunch v. Virginia, 51 Va. App. 491, 496, 658 S.E.2d 724 (2008) (approvingly quoting U.S. v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004)). Aside from the deep flaw of such judicial notice as that proclaimed in Bunch v. Virginia, many of the raw marijuana cases referenced by cases cited by the foregoing U.S. v. Humphries -- as discussed below -- deal with large marijuana quantities, sometimes in the hundreds of pounds, and often reference specialized experience by the detecting cops, who often are Border Patrol police. A court must review the totality of the circumstances and assess the credibility and reliability of witnesses before permitting a search based on probable cause, Indiana v. Holley, and such an approach is shortchanged and distorted to permit such searches on the mere claim of a cop that s/he smelled marijuana, particularly in the absence of a basis for the cop's training and experience in distinguishing between the smell of raw marijuana, oregano, or a wide variety of other substances. For instance, Humphries substantially relies on U.S. v. Scheetz, 293 F.3d 175 (4th Cir. 2002). In turn, Scheetz relies heavily on the Tenth Circuit decision in U.S. v. Morin, 949 F.2d 297 (10th Cir. 1991). Morin says: "This court has long recognized that marijuana has a distinct smell and that the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage. United States v. Merryman, 630 F.2d 780, 785 (10th Cir. 1980); United States v. Sperow, 551 F.2d 808, 811 (10th Cir. 1977), cert. denied, 431 U.S. 930, 53 L. Ed. 2d 245 , 97 S. Ct. 2634 (1977); United States v. Bowman, 487 F.2d 1229, 1231 (10th Cir. 1973)." Morin, 949 F.2d at 300. Morin failed to acknowledge that the Merryman case it relies upon involved 242 lbs. of marijuana. Merryman, 630 F.2d at 783. The foregoing Bowman case relied upon by Morin involved twenty-five bricks of marijuana smelled by a Border Patrol Agent who "had smelled marijuana while on duty and ... was familiar with its odor. The court below made the specific finding that Agent Goad did, in fact, detect the odor of marijuana." Bowman, 487 F.2d at 1230. As supported by Bowman, no probable cause to search can exist without the trial judge finding that the smelling officer was sufficiently trained and familiar with the distinction between the odor of raw marijuana and the odor of other substances. Id. Consequently, no judicial notice should be taken that a police officer may search a suspect on the mere claim of smelling marijuana. Bowman, upon which Morin relies, states: "In our disposition of this issue, we do not write on a clean judicial slate. It is well settled within the Ninth Circuit that smell alone is sufficient to constitute probable cause for a subsequent search for marijuana. United States v. Barron, 9 Cir., 472 F.2d 1215, cert. den., 413 U.S. 920, 93 S. Ct. 3063, 37 L. Ed. 2d 1041 (1973); United States v. Campos, 9 Cir., 471 F.2d 296; Fernandez v. United States, 9 Cir., 321 F.2d 283." Bowman, 487 F.2d at 1230. However, although Bowman relies in part on the Ninth Circuit's Fernandez case to justify its foregoing pronouncement, Fernandez involved "five packages of marihuana wrapped in brown paper." Fernandez, 321 F.2d at 285. Consequently, enough is enough. Judges need to stop promoting and accepting the deeply flawed notion that a police officer's mere claim of smelling marijuana translates into probable cause to search. A case-by-case inquiry is necessary, to consider the totality of the circumstances that led to the search. Marijuana smell should not create any exception to that rule. Jon Katz.
Sunday, November 23. 2008
Bill of Rights (From public domain.) A marijuana defense client one day suggested I not clump all frequent marijuana users as stereotypical laidback potheads. Knowing that frequent potsmokers come in all different shapes and flavors, I used the stereotype in an effort to figure out why my frequent-potsmoking client was so highstrung. Of course, he would have been more highstrung had he not been a marijuana smoker; this was his medicine. Are legalization efforts for medicinal and recreational marijuana moving more slowly because of stereotypes of potheads of the variety of Cheech and Chong in Up in Smoke? (What do you think of this clip?) I would hope not. For one thing plenty of medicinal and recreational potsmokers smash such stereotypes. For another thing, even if every potsmoker matched such a stereotype, that would be much preferable to the violence and other damage caused by so many people who abuse alcohol. Helping further to smash such stereotypes were the approximately 150 to 200 people who appeared before 10:00 a.m. yesterday morning for the second day of the tenth national conference of Students for Sensible Drug Policy at the University of Maryland. When I was in college, it was tough to get me anywhere that early on a Saturday morning. I only got to stay at the conference less than two hours, because I was with my young son. However, for a boy as active as he is, I was taken at how attentive he was to the events, for the first half hour. The speakers I heard addressed matters that I mainly had heard before, but these were important talking points for the attendees to know for spreading the word of drug policy reform. At the conference, I met and re-mat the following folks: I re-spoke with Kris Krane, who heads the SSDP. Catch Kris here, debunking any value in parents forcing drug tests on their children. First and foremost, for the first time I met fellow blogger Pete Guither of DrugWarRant. Yesterday, Pete entered some blog entries about he SSDP conference as events unfolded. His drive from Illinois to Maryland was slowed by accidents and snow in western Maryland. but he made it. I would have liked to have talked to Pete longer than exchanging some pleasantries, but I was due back home. Speaking of blogs, check out the SSDP's Dare Generation Diary. I met Drug Policy Alliance Executive Director Ethan Nadelman, who is a very good spokesperson for drug policy reform. I again bumped into Kevin Zeese, who heads Common Sense for Drug Policy. Kevin co-founded the then-named Drug Policy Foundation. I also again bumped into my business neighbor Eric Sterling, who heads the Criminal Justice Policy Foundation. As an entertainment bonus, I met late-night infomercial huckster Matthew Lesko, who never leaves home without a custom-made suit laden with question marks. It seems that his son is involved in the SSDP. Jon Katz.
Tuesday, November 18. 2008
Image from public domain. Marijuana is great medicine. It is natural and green, and lacks the very undesirable side effects of so many other medicines, including anti-depressants. It can be ingested in brownies and cookies, to avoid being smoked. Pharmaceutical companies have no financial interest in having marijuana legalized, because if it becomes legal, people can grow their own quality marijuana weed. Here are some good links I recently found by medical professionals that detail the medicinal benefits of marijuana: - Taped interview with Donald Abrams, M.D., on medical marijuana. "Short Term Effects of Cannabinoids in HIV Infection." This title relates to a study that is outlined here at the website for the Multidiscipliary Association for Psychedelic Studies. More details on the study are here. "Cannabis in painful HIV-associated sensory neuropathy." This is an abstract. The full text is available by subscription here. Marijuana, the AIDS Wasting Syndrome, and the U.S. Government: Letter to the editor for New England Journal of Medicine. "Medical marijuana and the Supreme Court." Here is a link to an article suggesting possible dangers from marijuana, but advocating further study. - "Adverse effects of medical cannabinoids: a systematic review." The report says, in part: "Short-term use of existing medical cannabinoids appeared to increase the risk of nonserious adverse events. The risks associated with long-term use were poorly characterized in published clinical trials and observational studies. High-quality trials of long-term exposure are required to further characterize safety issues related to the use of medical cannabinoids." Jon Katz.
Tuesday, November 11. 2008
Image from public domain. A wonderful fringe benefit of my marijuana defense work has involved meeting key players who bring sense to overcome so much of the nonsense of anti-marijuana crusaders. In addition to meeting such players through NORML annual meetings, I have worked with marijuana smell expert Richard Doty, and marijuana grow experts Chris Conrad and Jon Gettman. I have met medical marijuana M.D. Lester Grinspoon by phone, which was a real trip, as his was one of the first names I learned of in the ongoing movement to legalize marijuana. It has also been an honor to know NORML founder Keith Stroup and the late Don Fiedler, who was both a great criminal defense lawyer and past NORML national director. Teaming with marijuana cultivation experts Chris Conrad and Jon Gettman, I won a Maryland medical marijuana sentence of just a fine followed by a probation before judgment (which means my client has no conviction in the case) on a prosecution for over thirty marijuana plants. In addition to being a marijuana grow expert, Jon Gettman is a former NORML national director. Jon and I spoke recently, and he graciously permitted me to upload his 2002 article with Virginia caselaw to beat intent to distribute prosecutions in favor of simple possession convictions, which carry drastically lower sentencing exposure. Jon. who lives in Lovettsville, Virginia, also provided me his updated resume. Check out his webpage entitled DrugScience.org. Thanks, Jon, Chris, Keith, Don, Lester, Richard, and the rest of you who have poured your heart and souls into replacing myth with facts about marijuana. Jon Katz.
Sunday, November 9. 2008
Image from Bureau of Engraving and Printing's website. What are the United States' largest socialist programs? This year's nearly trillion dollar bailout of AIG and other financial institutions is one. The social security system is another. Certainly, the criminal justice system is a major socialist enterprise, as well, which helps explain why so many economic conservatives want to downsize or eliminate the drug war. In these belt-tightening times, the criminal justice system is particularly overgrown. The system needs to be shrunk substantially, in large part through legalizing marijuana, gambling and prostitution, and by heavily decriminalizing all other drugs. Drug prosecutions occupy a huge chunk of court, police, and prosecutorial time, so marijuana legalization and heavy drug decriminalization already will help to heavily shrink the nation's criminal justice system. How expensive is the criminal justice system? As the ACLU blog points out on November 7, 2008: The introduction to "Smart on Crime: Recommendations for the Next Administration and Congress." -- produced by an organization that includes the ACLU -- "ends with a prescient reminder that during these very challenging economic times, there are critical cost savings that can come from reforming a system that incarcerates 2.3 million people (that’s more than 1 out of every 100 adults in the U.S.) at a staggering cost of more than $60 billion per year." The ACLU blog quotes as follows from the foregoing "Smart on Crime" study: At a time when the nation is facing its worst economic crisis since the Great Depression, it is essential to review the cost of the criminal justice system to all Americans. Such a review should not only account for the cost in terms of dollars and cents, but also in terms of human lives and capital, which are our nation’s most valuable resource.
On the indigent defense side alone, public defender offices are so overburdened with criminal defense cases that seven such offices have been turning away many people who otherwise would be qualified for their services. Consequently, the criminal justice system must be substantially shrunk. Jon Katz
Wednesday, October 1. 2008
DEA image in the public domain. In college, on-campus drug use -- and sometimes drug sales, apparently -- ran rampant. I would sometimes be right in the room or in the dorm hallway as others smoked pot or, in one instance, snorted cocaine. If I did not want to be a hermit, it was hard to avoid being with people who smoked pot; this was the early Eighties, and both pot and beer were very popular (and also unlawful for those under twenty-one to purchase). This also having been the Eighties, for small quantities of drugs, drug enforcement, criminal penalties, and collateral consequences were less harsh. Welcome to 2008, where few politicians and prosecutors have enough backbone to support legalizing marijuana, heavily decriminalizing all other drugs, and reducing the penalties for drugs, except that I credit those lawmakers and prosecutors who are at least willing to put some first-time drug cases (I only know of marijuana cases) into diversion to give a chance to avoid convictions, and to enable no convictions or less serious convictions for people who use marijuana for medical necessity. Back to my college experience being around people smoking marijuana, By merely being next to these people -- not even touching nor ingesting the substances -- I was risking arrest, prosecution, and possible conviction, because a drug possession conviction requires nothing more than proof beyond a reasonable doubt that the defendant possessed (defined as knowledge, dominion and control over the drugs) drugs (the prosecutor has the burden to prove the substance was the alleged controlled dangerous substance, ordinarily by bringing in the chemist if any drugs are left and seized). I could have testified until I was blue in the face that I had nothing to do with the drugs, but if I was not believed by the judge or jury, I would have been convicted. Fortunately, neither I nor the others around me were busted for drug possession. So-called controlled dangerous substances remain illegal, often with harsh penalties and tough collateral consequences for convictions, including risks to student financial aid, government security clearances, and risks to immigration status. If anyone needs a reminder about the risks of being a bystander when drugs are possessed, used or sold, just read this September 9, 2008, opinion from Virginia's Court of Appeals finding sufficient evidence to convict a woman for possessing methamphetamines and marijuana with the intent to distribute by having been present in the house where her fiance sold the items. Dunn v. Virginia, __ Va. App. _ (Sept. 9, 2008). The evidence may have been sufficient to prosecute Ms. Dunn for simple possession of the substances -- including where a small amount of methamphetamines was found in her jewelry or personal bag -- but the concept of allowing a conviction for intent to distribute just because she knows her fiance is distributing should be a sobering wake-up call to otherwise innocent people who hang around with people possessing or distributing drugs. Curiously, after a three-judge Virginia Court of Appeals panel ruled in Ms. Dunn's favor (by as little as a 2-1 vote), only one judge dissented in this en banc opinion. Query: What made the remaining judge(s) in Ms. Dunn's favor change their minds? It will be a boring world if people choose to avoid arrests by only associating with people as bland as Neil Sedaka, Lawrence Welk, and Pat Sajak hosting Wheel of Fortune. That may be enough of a good reason for legalizing marijuana and heavily decriminalizing all other drugs. Jon Katz.
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