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Canada: In Marijuana Grow Case, Alberta's Top Court Rules Police Use of Power Recording Device Violates Privacy Rights

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc.

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Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction.

Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information.

"It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization."

Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way."

The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."

Canada: In Marijuana Grow Case, Alberta's Top Court Rules Police Use of Power Recording Device Violates Privacy Rights

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc. Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction. Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information. "It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization." Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way." The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."
Location: 
Calgary, AB
Canada

Marijuana: Hawaii Insurer Denies Woman Transplant Because of Pot Use

Waimea, Hawaii, resident Kimberly Reyes died July 27 at Hilo Medical Center, 10 days after her insurance provider denied the liver transplant she needed because she had tested positive for marijuana in a series of toxicology tests. Reyes was not a registered medical marijuana user, but her family told the Honolulu Advertiser she had used it to deal with nausea, pain, and disorientation caused by the hepatitis that killed her.

Reyes' attorney, Ted Herhold of San Francisco, told the Observer that the diagnostic test results were the sole basis for Hawaii Medical Service Association's (HMSA) denial of transplant coverage. Reyes' husband Robin, and her mother, Noni Kuhns, said the decision was based on failure to comply with HMSA's policy forbidding drug use, but that neither HMSA nor her doctors had told her just what that policy was.

"Just because someone takes a hit off of a joint doesn't mean that it should be the end of their life -- this is not a reason to deny life," said Kuhns.

HMSA has refused to comment or provide its policies on drug use and transplant approval.

Denial of transplants to marijuana users has happened before. Last year, Seattle-area musician Timothy Garon died after being refused a transplant because of doctor-recommended medical marijuana use. In 2003, Oregon resident Dave Myers was removed from a transplant list merely for Marinol, a prescription medicine related to marijuana.

Hemp: Industry Group Seeks "Beer Summit" on Capitol Hill Following Seizure of Legal Demonstration Fibers

press release from Vote Hemp

Hemp Seizure in Capitol Underscores Confusion Over Cannabis
Hemp Industry Seeks Beer Summit with Capitol Police

WASHINGTON, DC -- Vote Hemp legislative assistant Ben Droz was shocked when Capitol Police seized his samples of industrial hemp fiber that he needed for a scheduled presentation to congressional staffers. Police refused to release the fiber after the search, while saying they knew it had no drug value and was "just hemp." The group of officers decided they needed to confiscate all the hemp seeds because no food was allowed, but the hemp fiber was also seized even though it is not food. "I just want to throw this out," said one officer, who ultimately did.

Mr. Droz explained to police that the items were being used to illustrate the environmental properties of hemp. "This is just another example of the confusion between Industrial Hemp, an important crop for farmers across the country, and marijuana, a distant cousin also from the Cannabis family." The United States is the only developed country that does not recognize the distinction between the two varieties. Mr. Droz admits, "I gave up the hemp to police, fearing arrest at the time, and now feel compelled to raise this issue so it does not happen again because I carry hemp every time I visit the US Capitol."

"The fact that this level of confusion among law enforcement still exists today is exactly why federal policy on hemp needs to change," says Vote Hemp President Eric Steenstra. "We hope for the return of Vote Hemp's property, an apology, and perhaps, a Capitol Hill beer summit or Congressional hearings to discuss our differences with the Drug Enforcement Administration (DEA)."

Hemp products have been subject to confusion in the past. In 2002, the DEA attempted to ban imports on hemp foods, despite the growing recognition of its value to farmers and consumers. Vote Hemp, the Hemp Industries Association, and several US and Canadian companies, successfully challenged the DEA in a lawsuit calling the ban unwarranted and illegal. Since this ban was lifted, the hemp industry has grown substantially every year. Last year alone, grocery store sales of hemp food products grew over 40%.

Since 2005, the Industrial Hemp Farming Act (H.R. 1866) and its predecessors have waiting for a hearing in the House, but it's been tabled the entire time. The bill has a dozen bipartisan cosponsors, and allows states like Oregon (as of Jan. 2010), Maine, Vermont, North Dakota, Montana (and many others) to grow hemp based on State laws. Sixteen states have already passed legislation, and many, like the ones listed above, are simply waiting for the federal ban to be lifted once again. Mr. Droz has been working with Vote Hemp in order to raise congressional awareness about this marginalized issue.

The growing market proves the case of hemp. Food sales have grown every year since the ban was lifted. Other parts of the hemp plant, such as those confiscated from Droz, can be used to make any number of consumer products, while all jobs generate from the industry could be as green collar jobs.

Despite a growing global industry, US farmers are still unable to grow hemp. All hemp in the US must be imported from other countries to be either processed or sold here.

"It's ironic that the very items I was using to clear up confusion, became the subject of contraband and were confiscated," Mr. Droz commented after the incident.

Law Enforcement: New York Man Wins Settlement in Forced Body Cavity Search Suit

New York's Albany County and Albany Medical Center Hospital will pay $125,000 to a New York man who was first strip-searched and then hospitalized and sedated against his will while hospital employees at police direction inserted a camera in his rectum in search of contraband. That is according to the out of court settlement agreed to over the weekend to end a federal lawsuit brought by the victim.

The victim, Tunde Clement, was arrested at the Albany bus terminal in March 2006 when he stepped off a bus from New York City. Sheriff's investigators suspected the ex-convict was carrying drugs, but found none in his backpack. He was then handcuffed, taken to the police station, and strip-searched. Again, no drugs were found. Then police took him to Albany Med, where doctors forcibly sedated him against his will.

While under sedation, doctors inserted a camera in his rectum and scanned his digestive system with X-rays. They also induced vomiting and took blood and urine samples to test for drugs and alcohol. They found nothing. After 10 hours in custody, Clement was charged with resisting arrest and released on his own recognizance. An Albany judge later threw out that charge.

Sheriff's investigators never obtained a search warrant for the procedure, nor did hospital officials require them to produce one. Normally, people under arrest cannot be forcibly sedated without a court order unless they are in imminent danger. Although hospital records indicate Clement was behaving normally and showed no signs of any medical emergency, hospital officials and police considered their desire to search his body "a medical emergency."

Clement subsequently filed a federal lawsuit against Albany Med and several doctors and nurses and against Albany County, Sheriff James Campbell, Inspector John Burke, who heads the dope squad that arrested Clement, and eight investigators assigned to the unit. He claimed his civil rights were violated and that he was the victim of assault and battery when officials and doctors strapped him down and injected him with sedatives against his will.

Now, the county and the medical center will pay for their misdeeds. Or, more precisely, local taxpayers will. Perhaps that will inspire local taxpayers to demand that law enforcement shape up and that medical personnel not be willing accessories to abusive law enforcement practices.

Drug War Chronicle Film Review: "The War on Kids" (2009, Spectacle Films, 99 min., $19.95)

Phillip S. Smith, Writer/Editor

For quite a while now, I've breathed a sigh of relief that my children are grown and not subjected to today's middle schools and high schools, with their achingly paranoid approaches to security and their obeisance to the principles of zero tolerance. As I've watched news account after news account of some kindergartener arrested for kissing a classmate, a middle school girl suspended for possessing Midol, an entire South Carolina high school raided for drugs as if it were an Afghan Taliban hangout, I've known that something was rotten in the way we treat our kids.

But I never gave it serious thought, never developed a comprehensive critique of our ever more freaked-out approach to youth, our desire to protect them from some drugs while doping them with others, or our increasingly authoritarian educational system. "The War on Kids" does. Winner of the best educational film at this year's New York International Independent Film and Video Festival, the 99-minute film smartly and entertainingly documents baseless and excessive punishment by schools and police, extreme forms of social repression, scapegoating by the media, exclusion from mainstream society and what can only be called pharmacological abuse.

All of this dehumanizing and psychological damaging abuses rise from our desire to protect -- or is it control? -- our kids. We want to protect them from violence and from drugs, from teenage sex and drinking. And this, of course, is where the war on drugs intersects with the war on kids, each reinforcing the other in an ever-increasing spiral of repressive, oppressive responses.

Unsurprisingly -- although this is underdeveloped in the film -- our story begins in the scary Reagan years of "just say no" and teen "superpredators." That was the time of the rise of zero tolerance, a policy that substitutes rigid, harshly punitive rules for common sense and an individual approach. Zero tolerance was originally about protecting students from weapons, but devolved into suspending them for drawing pictures of guns. And it was about protecting them from violence, but devolved into arresting them for schoolyard fights. And it was about protecting them from drugs -- some drugs anyway -- but devolved into strip searches of teen girls for Ibuprofen, suspending them for possession of Alka-Seltzer, and turning over anyone caught with a joint to the police.

As youth sociologist Mike Males, author of "Scapegoat Nation," put it in the film: "They must conform, they must have constant monitoring and supervision, schools won't tolerate a single drop of alcohol, no cigarettes, no drugs, no sex. This is absolutist conformity to arbitrary rules that are one size fits all."

Males goes on to note that despite the virtual panic over teen prescription drug use and overdoses, the real pain pill and OD epidemic is among the middle-aged. "It's not permissible to discuss drug use as a middle aged problem, so we have this unreal discussion about teens," he notes.

The youth, of course, are a convenient scapegoat. As much as they encapsulate our hopes and dreams, they also represent our fears and nightmares. Much better to project all that crap onto the kids than look into the mirror and deal with it ourselves.

The flip side of the war on drugs is the bizarre resort to the doping of a generation with Adderall, Ritalin, and the rest of the cavalcade of "good drugs." Here again, the filmmakers shine, turning a bright spotlight onto such insidious, invidious practices. The juxtaposition of the film's two drug chapters also shines a bright light on our whole insane approach to pharmaceutical substances. If a kid gets caught with cocaine, he is expelled and jailed. If a kid is on prescription Ritalin, all is good. Never mind that the two drugs produce almost identical biopharmaceutical effects.

"The War on Kids" is not just about the war on drugs. It also delves into the ever more Orwellian surveillance state built in the schools, the roles of administrators and teachers as akin to those of prison guards, and even the authoritarian architecture of the public school. (When driving through the countryside and coming across a grim, fenced, nearly windowless edifice, I find myself saying, "That's either a school or a prison.")

But the war on drugs and the war on kids feed on each other. Our draconian approaches to drug use and drug policy are a critical component of the war on kids. "The War on Kids" reveals that interaction, but also places it within the much broader context of our society's fear of urge to control our youth. In so doing, it unmasks the cant, the hypocrisy, and the fear-mongering that too often pass for reasoned analysis of the problems of youth.

As the Who once famously put it: "The kids are alright!" It's the grown-ups that have me worried.

Medical Marijuana: Users, Growers Can Sue Over Police Raids, California Appeals Court Rules

In the first ruling of its kind, the California 3rd District Court of Appeal in Sacramento held Wednesday that medical marijuana patients and growers can sue police for illegally raiding their properties and destroying their plants. The ruling came in County of Butte v. Butte County Superior Court.

In that case, a Butte County sheriff's deputy went to the home of medical marijuana grower David Williams and demanded he destroy all but 12 of the 41 plants he was growing for a seven-person collective. Williams had complete documentation for his grow, but, threatened with arrest, he complied with the unlawful order. He then sued the county and won in Superior Court.

The county appealed, arguing that patients and providers could invoke the state's medical marijuana law only as a defense to criminal charges, not to sue for damages. But the appeals court sided with the lower court, holding that medical marijuana patients and providers have the same right as any other citizens to sue officials who violate the constitutional ban on illegal searches and seizures.

Williams was relying on "the same constitutional guarantee of due process available to all individuals," wrote Justice Vance Raye for the 2-1 majority. Medical marijuana patients and providers do not need to suffer "the expense and stress of criminal proceedings," to assert their rights, he wrote.

In a dissenting opinion, Justice Fred Morrison wrote that Congress should ease the federal ban on marijuana to accommodate the 13 states that allow medical use. But in the meantime, he argued, no one has the right to use marijuana, and police can legally confiscate it.

The county is likely to appeal to the state Supreme Court. But unless and until that happens, law enforcement in California should be on notice that any misbehavior regarding medical marijuana could turn out to be very expensive.

Innocent Teenage Girls Forced to "Jump Up and Down" During Marijuana Search

Following the Supreme Court's recent decision that school officials violated the 4th Amendment when they strip-searched a 13-year-old girl, another similar lawsuit has been filed and the story is equally sickening:

According to the complaint, the incident began when the bus arrived at the school and two employees boarded it in order to resolve a dispute in which the girls were not involved. The employees "smelled what they thought was marijuana," the complaint states, and five girls seated at the back of the bus, including Gaither and S.C., were detained and searched.

During an interrogation that lasted the entire school day, and after being denied repeated requests to call their parents, the girls were required to "remove their shoes and socks, unbuckle their belts, unbutton their pants, and unzip their pants," the complaint says. They also had their "waistlines physically touched and searched" by a male employee while their pants were undone, and were made to "lift up their bras while their shirts remained on and jump up and down."

The searches were all performed behind closed doors and without the presence of police offices or female staff, the suit says. No marijuana was found. [Courthouse News]


The whole thing is so perverse and disturbing, it really ought to be examined in criminal court as well as civil. By the time a group of teenage girls was ordered lift their bras and hop up and down, it wasn't just a drug search anymore. This was something much sicker than that. But you can thank decades of propaganda-fueled marijuana hysteria for creating the environment in which school officials think they can get away with stuff like this.

Search and Seizure: Strip Search of Junior High Girl for Drugs Unconstitutional, Supreme Court Rules

The US Supreme Court ruled Thursday that school officials who strip searched a 13-year-old Arizona school girl based on an uncorroborated accusation by a classmate that she had previously possessed ibuprofen violated the Fourth Amendments proscription against unwarranted searches and seizures. The ruling came in Safford Unified School District v. Redding.

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Savana Redding (from aclu.org)
Savana Redding, an eighth grade honor roll student at Safford Middle School in Safford, Arizona, was pulled from class on October 8, 2003 by the school's vice principal, Kerry Wilson. Earlier that day, Wilson had discovered prescription-strength ibuprofen -- 400 milligram pills equivalent to two over-the-counter ibuprofen pills, such as Advil -- in the possession of Redding's classmate. Under questioning and faced with punishment, the classmate claimed that Redding, who had no history of disciplinary problems, had given her the pills.

After escorting Redding to his office, Wilson demanded that she consent to a search of her possessions. Redding agreed, wanting to prove she had nothing to hide. Wilson did not inform Redding of the reason for the search. Joined by a female school administrative assistant, Wilson searched Redding's backpack and found nothing. Instructed by Wilson, the administrative assistant then took Redding to the school nurse's office in order to perform a strip search.

In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.

"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

Redding had won in the lower courts, and the school district appealed to the US 9th Circuit Court of Appeals, which also found the strip search to be unconstitutional. "It does not take a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of her constitutional rights," Judge Kim McLane Wardlaw wrote for the majority.

A six-judge majority of the appeals court further held that, since the strip search was clearly unreasonable, the school official who ordered the search is not entitled to immunity. But in its decision, the Supreme Court found that the school officials involved are immune from liability. The decision leaves open the possibility, however, that the Safford Unified School District could be held liable.

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable," wrote Justice David Souter for the 8-1 majority. Justice Clarence Thomas was the sole dissenter.

"We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional," said Adam Wolf, an attorney with the ACLU who argued the case before the Court. "Today's ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court's conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced."

"Neither the Constitution nor common sense permits school officials to treat a strip search the same as a locker or backpack search," said Steven R. Shapiro, the ACLU's national Legal Director. "Today's ruling eliminates any confusion that school officials may have had about this seemingly obvious point."

"This is a victory not just for Savana, but for all public school students and parents across the country," said Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance (DPA). "After today's ruling, a parent can send their son or daughter to school without having to fear that he or she will be subject to an unreasonable strip search by school officials hell-bent on fighting a drug war rather than considering the best interests of the child."

"It's good to see that even the Roberts court recognizes when zero tolerance policies grounded in drug war hysteria go beyond the dictates of reason and the Constitution," said DPA executive director Ethan Nadelmann.

Supreme Court Upholds Fourth Amendment in Strip Search Case

Today, the Supreme Court ruled 8-1 in Safford Unified School District #1 et al v. Redding that school officials violated the 4th Amendment when they strip-searched a 13-year-old girl.  Savana Redding was subjected to a strip-search that included looking inside her underwear, after school officials received a tip that she might be in possession of prescription Ibuprofen. None was found.

By a strong majority, the Court declared the search unreasonable under the 4th Amendment, finding that a full strip search was unjustified based on the nature of the drugs and in question and the absence of specific evidence that contraband would be found in her underwear.

Unfortunately, despite upholding the 4th Amendment in this case, the Court left the door wide open for future violations of student rights. The justices agreed by a 7-2 vote that the school officials who carried out the illegal search should not be held liable because the caselaw was unclear at the time. Now that the central legal issues are settled, similar incidents could invoke liability in the future, but the ruling itself will fail to prohibit such searches in many instances. By placing heavy emphasis on the negligible threat posed by prescription Ibuprofen, the Court implies that a different outcome may have been reached depending on the type of contraband in question. It's possible, for example, that the search would have been upheld if it involved marijuana.

Thus, today's ruling fails to fully clarify the legality of drug searches in schools under many circumstances. It also fails to punish those responsible for degrading an innocent young woman based on flimsy and ultimately false evidence. Hopefully, however, it will at least serve as a reminder to educators that schools are not a 4th Amendment-free zone.

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