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Drug Czars Say the Darndest Things

Deputy Drug Czar Bertha Madras delivered this gem in Colorado as she promoted random student drug testing to school administrators:

"We are not waging a war on drugs; we are waging a war of defense --
a defense of the basis of humanity, and that is our brain," said Dr.
Bertha Madras, the White House deputy drug czar in charge of reducing
demand for drugs. [Denver Post]

This is the same woman who argued against distributing overdose prevention kits, claiming that overdoses would teach people not to use heroin. So no, she's actually not very interested in "defense" against the harms of drugs.

She supports drug testing programs that don’t work, but opposes overdose prevention programs that do. Her ideas would make considerably more sense if her job were to make the drug problem worse.

Update: In comments, Giordano asks "Is Dr. Madras’ brain on the defensive?" Yes, I think that's exactly what's going on here.

Press Release: White House Pushes Harmful and Ineffective Student Drug Testing Agenda at DC Summit

For Immediate Release: May 6, 2008

For More Info: Contact: Jennifer Kern (415) 373-7694 or Jasmine Tyler (202) 294-8292

White House Pushes Controversial Student Drug Testing Agenda at D.C. Summit on May 7

Largest Study, Leading Health Groups Call Random, Suspicionless Drug Testing Harmful and Ineffective

Concerned Citizens to Provide Educators with Missing Information; Experts Available for Interviews

The White House Office of National Drug Control Policy (ONDCP) is conducting a series of regional summits designed to convince local educators to start drug testing students -- randomly and without cause. This policy is unsupported by the available science and opposed by leading experts in adolescent health. The Bush Administration is hosting a summit on Wednesday, May 7 at the Office of National Drug Control Policy in the 5th floor conference room of 750 17th Street, N.W. in Washington, D.C. from 1:00 p.m.–5:00 p.m.

The Drug Policy Alliance (DPA) will provide attendees with copies of DPA’s booklet Making Sense of Student Drug Testing: Why Educators Are Saying No, which provides resources for evidence-based alternatives and summarizes research showing that such testing is ineffective.

Studies have found that suspicionless drug testing is ineffective in deterring student drug use. The first large-scale national study on student drug testing, which was published by researchers at the University of Michigan in 2003, found no difference in rates of student drug use between schools that have drug testing programs and those that do not. A two-year randomized experimental trial published last November in the Journal of Adolescent Health concluded random drug testing targeting student athletes did not reliably reduce past month drug use and, in fact, produced attitudinal changes among students that indicate new risk factors for future substance use. 

"Drug testing is humiliating, costly and ineffective, but it’s an easy anti-drug sound bite for the White House," said Jennifer Kern, youth policy manager with the Drug Policy Alliance. "The people and educators across the country who make serious decisions about young people’s safety won’t find the information they need at these propaganda-filled summits. They need the actual research, not slogans and junk science."

The American Academy of Pediatrics, National Education Association, the Association of Addiction Professionals and the National Association of Social Workers object to testing. They believe random testing programs erect counter-productive obstacles to student participation in extracurricular activities, marginalize at-risk students and make open communication more difficult.

“Drug testing breaks down relationships of trust,” said Jasmine Tyler, deputy director of national affairs with the Drug Policy Alliance. “All credible research on substance abuse prevention points to eliminating, rather than creating, sources of alienation and conflict between young people, their parents and schools.”

A December 2007 policy statement by the American Academy of Pediatrics Committee on Substance Abuse and Council of School Health reaffirmed their opposition to student drug testing, holding:  “Physicians should not support drug testing in schools … [because] it has not yet been established that drug testing does not cause harm.

Making Sense of Student Drug Testing: Why Educators are Saying No published by the Drug Policy Alliance and the American Civil Liberties Union can be found online at An excerpt from the booklet is included below:

Comprehensive, rigorous and respected research shows there are many reasons why random student drug testing is not good policy:

  • Drug testing is not effective in deterring drug use among young people;
  • Drug testing is expensive, taking away scarce dollars from other, more effective programs that keep young people out of trouble with drugs;
  • Drug testing can be legally risky, exposing schools to potentially costly litigation;
  • Drug testing may drive students away from extracurricular activities, which are a proven means of helping students stay out of trouble with drugs;
  • Drug testing can undermine trust between students and teachers, and between parents and children;
  • Drug testing can result in false positives, leading to the punishment of innocent students;
  • Drug testing does not effectively identify students who have serious problems with drugs; and
  • Drug testing may lead to unintended consequences, such as students using drugs (like alcohol) that are more dangerous but less detectable by a drug test.


Washington, DC
United States

Canada: Supreme Court Nixes Random Use of Drug Dogs

In a ruling last Friday, the Canadian Supreme Court held that the use of drug-sniffing dogs in a random search of an Ontario school was unconstitutional. The decision should result in an end to random drug dog searches across the country -- except at borders and airports, where customs officials have free rein.
drug dog
The court held that the use of a drug-sniffing dog without particularized suspicion violated Section 8 of the Canadian Charter of Rights and Freedoms, which governs what constitutes reasonable search and seizure.

The case began in 2002, when police visited St. Patrick's High School in Sarnia, in the southwestern part of the province. Police confined students to their classrooms, while taking their backpacks to an empty gym. The dog alerted on one backpack, and one youth who was identified only by his initials was subsequently charged with possession of marijuana and psychedelic mushrooms.

Police admitted they had no search warrant nor even a tip that drugs were present at the school. Instead, they said, they were responding to a long-standing open invitation from school officials.

The trial judge in the case granted a motion to exclude the seized drugs as evidence and acquitted the youth. Prosecutors appealed, but the Ontario Court of Appeal in 2004 upheld the trial judge, saying the sniffing of backpacks by the drug dog amounted to "a warrantless, random search with the entire student body held in detention."

Crown lawyers argued unsuccessfully that being sniffed by a drug dog does not constitute a search. Odors in the public air are not private, and a drug dog detecting contraband by smell should be viewed as similar to police officers detecting an odor in the air, they argued.

That argument would have flown in the United States, where the Supreme Court has okayed the use of drug dogs in random searches, saying a drug dog sniff did not amount to a search. But it didn't fly in the Canadian courts. Now, police will not be able to conduct random searches with drug dogs in public places, such as churches, schools, and shopping malls.

Don't Give Your Marijuana to the Police

This remarkable New York Times piece exposes New York City's out of control marijuana policy, which has produced 374,900 misdemeanor marijuana arrests since 1998, despite a decrim law that's been in effect for 30 years. This is a rare example of professional-quality drug war coverage from the mainstream media and should be read in its entirety, as it raises several interesting issues.

I found this passage, which describes one particular arrest, quite revealing:

"I came out of the building, and this unmarked car, no light, no indication it was police, was right on me," said the man, a Latino who asked that his name not be used because he was concerned about his job. "Right on my tail. An officer got out, he said, 'I saw you walking from that building, I know you bought weed, give me the weed.' He made it an option: 'Give me the weed now and I will give you a summons, or we can search your vehicle and can take you in.' "

He opened the console and handed them his marijuana — making it "open to public view."

"I was duped," he said. But the deception was legal, and his pot wasn’t.

The officers escorted him in handcuffs to the unmarked car.

Amazingly, police must actually trick citizens into displaying their marijuana in order to make an arrest, since the decrim law requires plain view discovery. NYPD officers have become quite adept at initiating this through the typical threats and coercion that have long been the hallmark of petty drug war police practices.

Fortunately, the most obvious and effective antidote to New York's overzealous marijuana policing is really pretty simple: don't give them your marijuana. Don't admit having marijuana. Don't give them consent to search you or your vehicle. Ask if you're free to go.

Ending this obscene spectacle, which violates the spirit of New York's marijuana laws and wastes precious law-enforcement resources, is vitally important. But until that happens, citizens can protect themselves by not idiotically turning over their illegal drugs to the police. Seriously, stop giving them your drugs.

United States

Virginia v. Moore: Just Another Dumb Ruling, Not a Full-blown 4th Amendment Crisis

Yesterday's Supreme Court decision in Virginia v. Moore upheld the use of evidence seized during arrests that are illegal under state law. So now the whole "4th Amendment is Dead" choir is harmonizing again, this time about how police can now illegally arrest and search anyone anytime. But it ain't like that, not yet. My analysis is available here.

I hate a bad search and seizure ruling as much as anyone, but I'm also the associate director of Flex Your Rights, where we teach people how to exercise their rights during police encounters. That mission is challenging enough without well-meaning Bill of Rights enthusiasts issuing hyperbolic eulogies for the 4th Amendment every 3-6 months.

We face grave threats to our civil liberties, but ranking high among them is the fact that most of us don't have a clue what these rights are to begin with. Exaggerating the practical impact of bad rulings and legislation may feel like a strategy to get the public's attention, but it's not. That language merely serves to convince people that the battle is already lost and not worth fighting. It also exacerbates the widespread and tragic tendency of the majority of citizens to waive their constitutional rights whenever police ask them to.

That's why we defend constitutional rights by teaching people to assert them, instead of running around pronouncing to our friends and neighbors that they have no rights.
United States

A Great 4th Amendment Ruling in Alaska

This is one of the smartest 4th Amendment decisions I've seen in a while:
The Alaska Court of Appeals on Friday put law enforcement agencies on notice that it would not tolerate "implicitly coercive" search requests during traffic stops. The warning came in the form of a ruling on the case of Susan S. Brown, a driver pulled over on November 24, 2004 allegedly because of the light illuminating her car's rear license plate was dirty.

On that night, Alaska State Trooper Maurizio Salinas never explained to Brown the reason for the stop, nor that he had no intention of issuing a ticket. Instead, Salinas convinced Brown to allow him to search her car and her body -- even though Brown had no warrants and showed no signs of illegal conduct. Salinas testified that his policy was to conduct as many random searches as possible during traffic stops. In this case, Salinas discovered a crack pipe hidden in Brown's coat. Speaking for the unanimous court, Judge David Mannheimer found that such search requests not based upon any reasonable suspicion of criminal conduct abused the rights of motorists.

"Motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officers request for a search," Mannheimer wrote. "Because of the psychological pressures inherent in the stop, and often because of the motorists' ignorance of their rights, large numbers of motorists guilty and innocent alike accede to these requests." []

We'll have to wait and see whether Alaska's Supreme Court picks up the case, but if allowed to stand, this decision should significantly undermine the type of "fishing expedition" drug war policing that forces citizens to prove their innocence by the roadside.

This ruling reaches the right conclusion for the right reasons, and provides a helpful example of the 4th Amendment's potency at the state level. When you are stopped by police in your neighborhood, it is not George Bush or the PATRIOT Act that determines whether or not your rights were violated. Each state has its own Bill of Rights and sets its own constitutional standards that must be respected by law-enforcement. Those who habitually lament the supposed "death" of the 4th Amendment would do well to familiarize themselves with this concept.

A citizenry that understands and appreciates 4th Amendment rights is more likely to produce and appoint judges who will rule in this way. Thus, while we must recognize and expose the many threats to the 4th Amendment that have emerged in recent years, it is essential that such conversations do not indulge the same sense of defeatism that leads citizens to waive these rights in the first place, when they matter most.

United States

Search and Seizure: Vermont Supreme Court Throws Out Marijuana Conviction Based on Warrantless Aerial Surveillance

In a decision handed down last Friday, the Vermont Supreme Court threw out the felony marijuana cultivation conviction of a man caught growing marijuana following a warrantless flyover of his rural property by a military helicopter. Vermont residents have a broad privacy right "that ascends into the airspace above their homes and property," the court held in State v. Bryant.
marijuana eradication helicopter, Nashville
The case began in 2003, when Stephen Bryant, who owned a remote Addison County home, told a local official he didn't want trespassers. That unnamed official "found defendant's insistence on privacy to be 'paranoid,'" the opinion noted, and suggested that a Vermont State Police team do a flyover to look for marijuana. Under the rules of the state's Marijuana Eradication Team, which uses Vermont Army National Guard helicopters and pilots, flights are supposed to stay 500 feet above the ground. But an August 7, 2003 surveillance flight dipped down to 100 feet and hovered above Bryant's property for half an hour.

Troopers in the chopper saw marijuana plants, then used that information to obtain a search warrant. Bryant was arrested and charged with marijuana possession and cultivation. At trial, he argued that he used marijuana for medicinal purposes to treat an old work injury. Jurors acquitted him of possession, but convicted him of cultivation. In June, 2005, he was sentenced to 45 days. His appeal followed.

The Vermont constitution protects the privacy rights of residents even if it means some pot plants may go unseized, the court held in an opinion written by Associate Justice Marilyn Skoglund for the 4-1 majority.

"We protect defendant's marijuana plots against such surveillance so that law-abiding citizens may relax in their backyards, enjoying a sense of security that they are free from unreasonable surveillance. Vermonters expect -- at least at a private, rural residence on posted land -- that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust," wrote Skoglund.

"With technological advances in surveillance techniques, the privacy-protection question is no longer whether police have physically invaded a constitutionally protected area. Rather, the inquiry is whether the surveillance invaded a constitutionally protected legitimate expectation of privacy," she added.

"The decision is a boon to all Vermonters," said Middlebury attorney William Nelson, who represented Bryant at the Supreme Court. "It protects our privacy when we are out of doors, on our own property, and in our own yards," he told the Burlington Free Press after the decision.

The opinion serves as further evidence that the state constitution gives Vermonters greater privacy protection than federal laws do, Vermont law school professor Cheryl Hanna told the Free Press. "A lot of people feel the federal government doesn't respect privacy rights after Sept. 11," said Hanna. "Vermonters, at least at the state level, have that additional check on what the government can do."

Search and Seizure: US Supreme Court to Decide Warrantless Search Case

The US Supreme Court agreed Monday to hear a case that could clarify limits on when police using an informant may enter a residence. The case is Pearson v. Callahan (07-751), in which five members of the Central Utah Narcotics Task Force are being sued by a man whose home was searched without a warrant after an informant bought methamphetamine inside.
US Supreme Court
In 2002, a snitch working with the task force bought $100 worth of meth from Afton Callahan inside Callahan's trailer in Fillmore, Utah. Once the officers waiting outside received the snitch's signal via wire that the deal had gone down, they entered and searched the trailer and arrested Callahan for sale and possession of meth.

Callahan moved to have the evidence suppressed because a warrantless search is unconstitutional, but a state court trial judge rejected that motion. Callahan then agreed to a conditional guilty plea while appealing the Fourth Amendment issue. A state appeals court later agreed with him and overturned his conviction.

Callahan then turned around and sued the task force members for violating his Fourth Amendment rights. The officers then argued that they were immune under the doctrine of "qualified immunity," which holds that government officials cannot be held liable for violating a law that was not clear at the time. A federal district judge, Paul Cassell, ruled in 2006 that the police were entitled to immunity, even if the search was unconstitutional, but the US 10th Circuit Court of Appeals in Denver overruled Cassell, holding that the Constitution was so clear on the need for a warrant that no reasonable police officer would have proceeded without one.

Lawyers for the police officers then appealed to the US Supreme Court, which will have to decide both the search and the immunity questions. But despite what the 10th Circuit held, the federal courts are divided on whether a warrant is necessary in those circumstances. Some federal circuits -- but not the 10th -- have created the strange notion of a "consent-once-removed" exception to the Fourth Amendment. Under that theory, someone who consents to the entry of an undercover police informant is also consenting to the entry of police as well -- even if he doesn't know it. Because the resident gives permission to the snitch to enter, he has also given permission for the police to enter, this novel doctrine holds.

Now, the US Supreme Court will decide if there will be yet one more addition to the holes in the Fourth Amendment created by the drug war. And whether police who conduct unconstitutional searches will have to pay for them.

Drug Testing: Washington State Supreme Court Rejects Random Tests of Students

In a March 13 ruling, the Washington state Supreme Court has rejected the random, suspicionless drug testing of high school students. In so doing, the court threw out a Wahkiakum School District policy in effect since 1999 that forced would-be student athletes to participate in drug tests if they wished to participate in school sports. The state constitution offers protections to students that federal courts have failed to find in the Fourth Amendment, the court held.
drug testing lab
The ruling came in York v. Wahkiakum, in which the parents of student athletes Aaron and Abraham York and Tristan Schneider sued the school district, arguing that the program violated the state constitution.

In particular, York and Schneider argued that the random suspicionless drug tests violated Article 1, Section 7 of the Washington State Constitution: "SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

As the Washington state Supreme Court noted, the US Supreme Court had held that requiring student athletes to submit to random drug tests is constitutional: "The United States Supreme Court has held such activity does not violate the Fourth Amendment to the federal constitution," wrote Justice Gerry Alexander for the majority. "But we have never decided whether a suspicionless, random drug search of student athletes violates article I, section 7 of our state constitution. Therefore, we must decide whether our state constitution follows the federal standard or provides more protection to students in the state of Washington."

It does indeed, the court held. "The school district asks us to adopt a 'special needs' exception to the warrant requirement to allow random and suspicionless drug testing," wrote Justice Gerry Alexander in the majority opinion. "But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution."

It will be back to the drawing board for school districts in Washington that currently have random drug test policies, thanks to the state Supreme Court.

Is Your Vagina Drug-Free? Albany's Narcs Want to Know

Here's an especially sordid and sickening example of abusive policing in the name of the drug war. A young woman driving in the wrong part of Albany gets pulled over by a special, aggressive drug enforcement squad, the Street Drug Unit. As the Albany Times-Union explains:
ALBANY-- The cops in the marked patrol car had circled through West Hill a couple times keeping an eye on their female target. They were part of the Street Drug Unit, an aggressive squad assigned to help rid Albany's neighborhoods of drug dealers and addicts blamed for much of the city's problems. It was early evening and already dark when the patrol car's emergency lights flashed in the rearview mirror of Lisa Shutter's Mitsubishi sedan on Quail Street, just off Central Avenue. Police records show the officers called out a "Signal 38" to alert a dispatcher they were onto something suspicious and about to pull someone over. They would later write in a report that they had pulled her over for "failure to signal," although no ticket was issued, according to police records shared with the Times Union. The actions of police in the minutes that followed would end in controversy rather than with an arrest. They would also leave Shutter, a 28-year-old single mother from Ravena, shaken and angry after one of the officers allegedly inserted his finger into Shutter's vagina on a public street during an apparent search for drugs. When it was over, "I pulled off down the road and I just cried for probably a half hour," Shutter said. "I called my dad. ... I felt like I had been basically raped."
Sounds pretty horrendous, but then, so is the response from the Albany police when Shutter filed a complaint:
The incident has triggered an ongoing internal affairs investigation by the Albany Police Department. But the handling of that investigation has raised questions about whether the department has sought to cover up the incident. Shutter claims Burris Beattie, a commander in internal affairs, dissuaded her from reporting the incident to a civilian police oversight board. The board, which was formed in 2001 in response to community concerns about the handling of internal police investigations, is empowered to monitor cases involving claims of brutality and civil rights violations against any officer. "He said they (internal affairs) would do a better job," Shutter said, recounting her conversation with Beattie. "He said they would like to keep it 'internal' ... that that's how they like to handle things."
Good thing they kept it aware from the civilian police review board, because it would have gotten to the bottom of things, right? Well, maybe not. It seems that the Albany board is as toothless and feckless as the rest of those organizations that are supposed to provide oversight to law enforcement:
Jason S. Allen, acting chairman of Albany's Citizens' Police Review Board, did not respond to a request for comment about whether all civilian complaints against officers are forwarded to the board. Instead, someone from the review board, which maintains an office at Albany Law School, contacted the department two weeks ago and alerted them that a Times Union reporter was asking questions about their policies, according to a police department source.
Let me get this straight: The civilian police review board, which is supposed to keep an eye on police misconduct, but when the board is contacted by reporters about an alleged incident, it doesn't investigate, but instead alerts the department? With review boards like this…But wait, there's more:
A member of the Citizens' Police Review Board, who spoke on condition of anonymity because only the chairman is authorized to make public statements, said some members of the board have privately suspected that the department may be hiding cases of police misconduct. In other instances, the internal affairs reports are so poorly organized and investigated the board has had trouble reaching decisions and often sends them back for more investigation. The board is supposed to appoint a monitor for complaints involving civil rights violations or allegations of excessive force. "Whether the letter of the law says that this should be the process, the intent and spirit of the law mandates that, especially in cases of civil rights violations, they be submitted to us for review," the board member said. "If not this, what do we review? ... The fact they would dissuade someone from reporting an incident and say they would do the investigation better completely defeats the purpose of why we were created."
One of the two officers involved, Matthew Fargione, is the son of a former Albany narc who is a long-time buddy of the chief, James Tuffey. Fargione Sr. used to be Tuffey's boss on the narc squad. The other officer was Nick Abrams. While Shutter said police internal affairs told her one of the officers had been suspended, apparently that is untrue. Here's how it went down, according to the Times-Union account:
The incident unfolded just after 7 p.m. on Dec. 22. Shutter said she'd just finished some last-minute holiday shopping and became confused as she drove through West Hill looking for a friend she'd agreed to pick up that night. Shutter was behind the wheel of a friend's rented car, and said she saw the police car drive past her twice before the stop. The officer at her window grilled her about drug use and hidden crack pipes, she said. "You fit the profile," the officer said, according to Shutter. "You're a white girl in a rental car." She told the officer she had no drugs and offered to take a Breathalyzer test, but he declined to give one, she said. The officer then allegedly reached through her window and plucked Shutter's cellphone from her lap. He scrolled through the personal information in her phone, she said, asking questions about "private calls" and someone named "Mandie," whose name appeared on her contacts' list. Mandie Buxton, 28, who is Shutter's friend since childhood, was at home when her cellphone rang that night. The man calling identified himself as an Albany police officer and asked whether Shutter was supposed to be picking Buxton up that night. "I said: 'What are you talking about?' " Buxton said. "He said: 'You don't know what I'm talking about?' and then he hung up. I called right back and no one answered." Ordinarily, police need a search warrant to seize or access someone's telephone. Before it was over, Shutter was ordered to stand outside her vehicle with her hands on the trunk. One officer searched her body while a second scoured the inside of the car. They also dumped the contents of her purse and asked whether she'd spent her money on crack because her wallet was empty. Shutter said she never consented to a search of her vehicle, her telephone or her body. She said she pleaded with the officer who allegedly slid his hand down the back of her jeans, and inside her underwear, to stop. "I kept saying over and over ... 'If you have to search me, can you bring me to the precinct?' " Shutter said. A female officer was called to the scene and informed Shutter she was there to search her body, Shutter said. The female officer patted her down, lifted Shutter's sweater and felt along her bra strap, and made Shutter open her mouth and lift her tongue. No reason was given. The police found no drugs or other evidence of criminal wrongdoing before allowing Shutter back in her car. "He said 'you're lucky' ... and that I better not drive around there again," Shutter said. Shutter called Buxton and her father minutes later, crying hysterically, they said. Shutter's mother, Sherry, characterized her daughter's encounter with police as a "life-changing nightmare at the hands of an Albany police officer." "Our daughter did not deserve to be so grossly violated and I want the officers to comprehend and be held accountable for violating our child," she said. "I just keep telling her that 'you did not deserve this.'"
One question: How many other women have been sexually assaulted by these criminals in blue? Another question: Is it okay for women to be digitally raped by cops if there are drugs in their vaginas? This story isn't going over too well in Albany, either. Check out the responses by Albanyites (Albanians?) at the Time-Union's blog page.
United States

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