Arrests

by Bernd Debussman, Jr.

Mexican drug trafficking organizations make billions each year smuggling drugs into the United States, profiting enormously from the prohibitionist drug policies of the US government. Since Mexican president Felipe Calderon took office in December 2006 and called the armed forces into the fight against the so-called cartels, prohibition-related violence has killed over 20,000 people, with a death toll of nearly 8,000 in 2009 and over 3,000 so far in 2010. The increasing militarization of the drug war and the arrest of several high-profile drug traffickers have failed to stem the flow of drugs -- or the violence -- whatsoever. The Merida initiative, which provides $1.4 billion over three years for the US to assist the Mexican government with training, equipment and intelligence, has so far failed to make a difference. Here are a few of the latest developments in Mexico's drug war:

shrine to San Malverde, Mexico's ''narco-saint,'' Culiacan, Sinaloa

In Tamaulipas, a mayoral candidate was shot and killed after having received repeated death threats. Jose Mario Guajardo was a member of the National Action Party (PAN), the conservative political party of President Felipe Calderon. Reports indicate that he had been threatened with death if he did not abandon his political campaign. Also killed in the incident were his son and an employee. Guajardo was running to be mayor of Valle Hermoso, a town 30 miles south of the border from Brownsville, Texas.

In Culiacan, Sinaloa, a series of raids by the Mexican military led to the arrest of Griselda Lopez Perez, the wife of Sinaloa Cartel boss Joaquin "El Chapo" Guzman. Perez had been wanted on money laundering charges. In an interesting (and still unclear) twist, Perez was promptly released by the authorities and returned to her home near Culiacan. Several sources have reported that President Calderon played a role in her release, fearing reprisal attacks on the part of the Sinaloa Cartel. The Calderon administration has repeatedly been accused of favoring the Sinaloa Cartel and, at the very least, focusing its efforts on other cartels. Perez is the mother of Guzman's son Edgar, who was killed in 2008 after a feud between him and the Beltran-Leyva brothers. Guzman has had at least three wives, and is most recently thought to have married a 17-year old beauty queen in the Sinaloan countryside in an extravagant wedding secured by some 200 gunmen.

Saturday, May 15

Across northern Mexico, at least 18 people were killed in the states of Coahuila, Durango, and Zacatecas. In the city of Torreon, Coahuila, a group of men armed with high-powered rifles opened fire in a bar, killing eight. In Zacatecas, gunmen opened fire on a police vehicle, killing two officers and four civilians who were traveling with them.

In Durango, four decapitated heads were found placed on the hood of a truck. A note left at the scene suggested that the men had been killed by the Zetas Organization for being involved with the shooting in Torreon. The bodies of the men -- all apparently university students between the ages of 18 and 20 -- were found in the bed of the truck.

In Sinaloa, six men were found murdered in several parts of the state. Two of the dead were found on the side of a highway, each with 18 bullet wounds. Sinaloa has long been at the center of the Mexican drug trade, and the majority of traffickers in leadership roles in the Sinaloa, Tijuana, Beltran-Leyva and Juarez cartels hail from the state.

Tuesday, May 18

In La Union, Guerrero, the majority of the local police force quit two days after gunmen ambushed and wounded two of their officers. Six of eleven remaining officers resigned. State police have been deployed to the town until further notice.

In Ciudad Juarez, police arrested Juan Padilla Juarez, 28, on charges that he has participated in at least ten homicides. He is thought by Mexican police to be a member of La Linea, the armed wing of the Juarez Cartel.

Wednesday, May 19

In Gonzalez, Tamaulipas, a group of armed men attacked the local Federal Police headquarters with automatic weapons. One person was killed and two were wounded, although it is unclear whether the dead were civilians or policemen. Authorities are investigating the incident.

In Mexico City, a former general who had been tied to cartels was shot and wounded. Mario Arturo Acosta Chaparro was incarcerated in 2000 on charges that he had protecting Amado Carillo Fuentes, the former leader of the Juarez Cartel who died during a botched plastic surgery in 1997. Chaparro was released in 2007 after a judge ruled that the evidence against him was insufficient. Additionally, in 2002, Chaparro was accused and found not responsible for the disappearance of leftists during the 1970's. He remains in intensive care.

In the city of Chihuahua, at least eight people were killed including the uncle of a local political candidate. Hilario Lozaya was the uncle of Salcido Loyoza, a local PRI candidate.

In Washington, President Calderon made an official state visit and met with President Obama. Although the main topic discussed between the two was the Arizona immigration law, they pledged greater cooperation on drug and arms trafficking between the two countries.

[Editor's Note: We still have no explanation for last week's El Universal body count of 684, but are in contact with the Mexico City daily to try to resolve the issue.]

Total Body Count for the Year: 3,954

Total Body Count for the Week: 84

Total Body Count since Calderon took office: 20,281

Read the last Mexico Drug War Update here.

People caught with 30 grams (a bit more than an ounce) or less of marijuana in Philadelphia will no longer be charged with criminal misdemeanors, but with summary offenses under a new policy that will go into effect later this month. Fines are expected to be in the $200 to $300 range.

Independence Hall, Philadelphia

"We're not going to stop locking people up," Lt. Frank Vanore, a police spokesman, told the Philadelphia Inquirer Monday. Marijuana possession remained illegal, he said. "We're going to stop people for it... Our officers are trained to do that. Whether or not they make it through the charging process, that's up to the DA. We can't control that. Until they legalize it, we're not going to stop."

After the Inquirer ran its story Monday, emphasizing that the policy change would "all but decriminalize" marijuana possession, District Attorney Seth Williams had to issue a statement of clarification:

"We are not decriminalizing marijuana -- any effort like that would be one for the legislature to undertake. The penalty available for these minimal amount offenses remains exactly the same. What we are doing is properly dealing with cases involving minimal amounts of marijuana in the most efficient and cost effective process possible. Those arrested for these offenses will still be restrained, identified and processed by police in police custody. They will still have to answer to the charges, but they will be doing so in a speedier and more efficient process. We want to use valuable court resources in the best way possible and we believe that means giving minor drug offenders the option of getting into diversionary programs, get drug education or enter drug treatment centers. Again we are NOT decriminalizing marijuana, and the penalty for these offenses remains the same."

"It will be charged as a summary offense, but you will still get arrested, booked, and fingerprinted," confirmed Tasha Jamerson, media director for the district attorney's office. "But instead of getting processed as a misdemeanor, it is processed as a summary offense, and you face only one court appearance."

"They are making a policy out of what is the common practice," said Chris Goldstein of Philadelphia NORML, which has been lobbying local officials for reforms. "People arrested for a Class A marijuana possession misdemeanor for less than 30 grams typically pleaded down to disorderly conduct, but it took a court hearing to make that happen. Prosecutors are making a pragmatic choice here; this will save them a lot of time and money."

The policy shift is the result of a collaboration between new District Attorney Seth Williams and a pair of Pennsylvania Supreme Court judges. It is part of an effort to unclog the city's overwhelmed court dockets.

Under Williams' predecessor, former DA Lynne Abraham, police arrested an average of 3,000 people a year for small-time pot possession, about 75% of them black. Last year, the arrest figure jumped to more than 4,700. That figure represents roughly 5% of the city's criminal caseload.

About another 2,000 are arrested for marijuana distribution and 2,500 more are arrested for possession of more than 30 grams. Overall, enforcing drug prohibition has resulted in about 18,000 arrests a year in Philadelphia, or nearly one-third of the entire criminal caseload.

"We have to be smart on crime," Williams told the Inquirer. "We can't declare a war on drugs by going after the kid who's smoking a joint on 55th Street. We have to go after the large traffickers."

Supreme Court Chief Justice Ronald Castille, one of the two justices who worked with Williams on the policy shift, said summary prosecution was "appropriate" for such a small-time offense. "It's a minor crime when you're faced with major drug crimes." Removing such cases from the criminal courts, he said, "unclogs the system."

"The marijuana consumers of Philadelphia welcome this," said Goldstein. "This is a very progressive thing to do on the part of the city," Goldstein said of the new policy. "I couldn't be happier about this."

Goldstein was much less enthused by the continued arrests policy. "It is completely absurd," he said. "It's harsh. For minor marijuana possession, it's very harsh treatment."

Nor was he convinced that the policy shift would do anything to reduce racially-biased marijuana law enforcement. "If we're paying attention to pot arrests in Philadelphia, we have to note that most are black. There hasn't been a single month when more than 10 white women have been arrested for less than 30 grams. Just go to a Phillies game parking lot. They could arrest a hundred white women in an hour out there," he said.

"At the same time, about 60 black women and 350 black men are getting arrested for it each month," Goldstein continued. "This points to bias in enforcement, and it costs a lot of money. We actually treat marijuana offenders here more harshly than anywhere else in the state, and it costs money. That's why the DA and the Supreme Court can initiate this change -- they're just bringing Philadelphia in line with the rest of the state and the region."

Drug Policy Alliance New Jersey office director Roseanne Scotti, who lives in Philadelphia, had another concern about the policy shift. "My concern is that there could be an incentive to arrest more people, because it will cost the city less to process them," she said. "And the city will make money on fines. We could see net-widening, with even more people getting arrested. If that's the case, are we better off at the end of the day? This will be a time and money saver for the city, but is this really a good thing for people who use marijuana?"

Time will tell.

by John Calvin Jones, professor of law, American University in Bosnia and Hercegovina

[Editor's Note: Last week we reviewed Flex Your Rights' new video, "10 Rules for Dealing with Police." Coincidentally, this piece from law professor John Calvin Jones came in over the transom at the same time. Like Flex Your Rights, Jones, too, is attempting to educate Americans about how to effectively exercise their constitutional rights -- and what can happen to you when you fail to do so. Jones' rules are a little different from Flex Your Rights' "10 Rules," but both are saying essentially the same thing. Here we present Jones' analysis of the case of one New Jersey man and what happened to him when he failed to exercise his rights.]

The latest case of a naïve marijuana grower comes out of New Jersey, where, on March 15, an appellate court affirmed a ruling from 2007 which denied a motion to suppress evidence: a seizure of a lot of weed from the house of one Brian McGacken. Recent headlines on Slate and other web sites emphasized why the police arrived at McGacken's house in the first place -- apparently he and his girlfriend were loud while having sex -- so loud that police received an "anonymous 911 call." Having the police come to your home because of loud sex could lead to amusing anecdotes down the years, but it is doubtful McGacken is finding anything to laugh about.

Instead, we have a scenario where police enter the house, follow McGacken upstairs (without being invited), smell pot, then start asking questions, and well, we know the rest. Before reviewing the legal arguments and ultimate ruling of two New Jersey Appellate Division judges (Lihotz and Ashrafi) in New Jersey v. McGacken, let me start with the errors of Brian McGacken.

According to the opinion, as admitted by McGacken, when police arrived at his place to investigate the 911 call, McGacken invited the police into the foyer. Rule #1: If you are growing any plants, much less have any weed in your domicile, do not invite the police inside. Then, after McGacken explained that any reports of screaming were accurate -- as then confirmed by his sex partner, police asked McGacken for ID. Rule #2: If you are growing weed in your house, speak to the police as little as possible. And since the Supreme Court ruling in Hiibel v. Nevada, 542 U.S. 177 (2004), unless you live in one of 20 states that have a law requiring you to identify yourself, which NJ does not, then you do not need to say anything to the police. That is, it is not a crime to refuse to answer or ID yourself -- even the Appellate Court in McGacken's case noted that. Regardless, if you do live in one of those self-ID states, just give your full name -- do not lie -- and then say nothing more.

By the way, the Supreme Court qualified the issue of ID laws in Hiibel, noting that one must identify only when police say that they have reason to believe that a person is suspected of committing a crime. If you ask the police if you are suspected of a crime, and they say no, as was the case with McGacken, not only are you not required to show ID, but you should then apply Rule #3: Always ask the police, "Am I free to leave?" If they say "no," but are still in your house -- tell them to leave, that you do not consent to their presence or search, and get the phone and tell them that you are calling your lawyer. (The reason you say that you are calling a lawyer is two-fold: first, it puts the cops on notice that they should go harass someone else; and second, while they will tell you that you cannot use the phone, they know that one can always have counsel present while in custody -- so you can surely have advice of counsel when you are not in custody). Of course, you do not have to call any real lawyer, just call your own voicemail and make a recording of the events in a loud voice saying stuff like: "The police are in my house/apartment without a warrant and no probable cause, they are not invited, I have asked them to leave, I do not consent to any search, etc." If after all that, the police still do not leave, just sit there -- and be quiet.

Needless to say, McGacken did not follow rules #2 or #3 either. But, according to the court opinion -- McGacken admitted he went upstairs to get his ID, and was followed by New Jersey State Trooper Thomas Holmes.

According to the opinion, "Trooper Holmes testified that he followed defendant upstairs for two reasons -- to protect his own and his fellow trooper's safety and to make sure there was no other person in the home in need of aid." But did he really?

Earlier in the opinion, the judges wrote that:

"Trooper Thomas Holmes and a fellow trooper responded [to the 911 call]. [Once on the scene, they] heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police. Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation."

If the two occupants of the house said that they are the only two in the house, and the officers believe them, then there is no reason to make sure there is no one else in the house "in need of aid." Further, if the police accept the explanation for the screaming, and the police are ready to end a routine follow-up to an unnecessary 911 call, then there is no reason to suspect that Trooper Holmes or his fellow trooper would be at risk from the sex screamers. But if the police thought that McGacken was lying or acting suspicious, then there might be cause to keep an eye on McGacken. But, according to the ruling, that's not what police thought.

"No evidence suggested [that] the police had any suspicion of criminal activity by defendant or his girlfriend, or [that the police] wished to conduct a search for evidence of crime. Trooper Holmes testified that... nothing that defendant and his girlfriend did or said downstairs raised suspicion of criminal activity."

The police and the court admit that Trooper Holmes lied when he testified there was no suspicion of criminal behavior. He could not have believed the report of the two lovers, but still had cause to look around to see if someone were in need of assistance. And thus, because he did not believe their explanation, Holmes implied that the two were hindering or obstructing an investigation, an arrestable offense.

But as the court recognizes that Holmes declared that he had no suspicions, that means Holmes believed no one else was in the house -- therefore there was no need to go upstairs in the name of what the court references as an exigent circumstance, of the sort where police may enter a house without a warrant so as to preserve life or prevent serious injury. Again, because Trooper Holmes testified that he had no suspicions that McGacken and his girlfriend were lying, he had no basis to justify a warrantless intrusion.

But that's not how the appeals court ruled. The New Jersey judges referred, over and over, to the idea of this type of warrantless search as necessary to save lives -- and not search for evidence of a crime. So, what did Trooper Holmes do and see when reaching the upstairs bedroom with McGacken? First the court says that Holmes smelled marijuana.

What happened next for this Trooper -- who was not searching for evidence of a crime, but merely responding to a perceived exigency to save a life? According to the court:

"Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. [Holmes] asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw, in plain view, a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest."

Thus, two New Jersey Appellate Court judges decided to abandon all pretense of reason. Without comment they claim that Holmes had to go upstairs to find someone to rescue, though he did not suspect anyone was in need of aid.

McGacken's misadventure leads us to yet another rule, Rule #4: When police ask you something, do not answer. Police are not your friends. They use drug arrests -- the easy pickings -- to gain fame (for some reason local press usually lauds these cops) and fortune. All states and the federal governments have seizure laws that allow law enforcement to take cars, houses, bank accounts, and boats on the mere suspicion that you are engaged in drug-related criminal activity. You can even be acquitted or have charges dropped, yet the cops can keep your stuff.

But more importantly, getting back to Rule #4 and anything related to a search of your person, house, car, or stuff, note what the court did not report that Holmes did after seeing McGacken move the tray? The police officer did not go over and grab the tray. Even though the court said that Holmes was within his right to make a warrantless search given the exigent circumstance of trying to save someone in imminent harm -- and not intending to seize evidence or make an arrest, Holmes did not even try.

Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession. That leads to Rule #5: Never consent to a search. Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession! That is why you are not supposed to answer their questions -- just call the lawyer (see Rule #3 above).

Holmes was careful to say that in no way did he look under the couch to see what was on the tray. However, Holmes testified, and the court explained, that the seized marijuana plants were "in plain view" (meaning not in a closed space, drawer, etc.). Even Trooper Holmes knows Rule #6: If it is in plain view, it belongs to the police, not you!

This exercise in legal sophistry and hypocrisy is not to advocate that anyone should violate state or federal laws -- especially drug laws. Instead it should serve to emphasize that every person should know the limits, guidelines, and rules on constitutional provisions about search and seizure. Even in those states that allow licensed grow operations the Obama administration is still making busts. If you want to stay out of prison, or reduce your chances of getting busted, follow the general advice of The Clash and "know your rights."