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Australia: South Australia Police Subject Club, Concert-Goers to Drug Dog Checks

Under an amendment to South Australia's Controlled Substances Act of 1984 approved last year, police are allowed to use drug-sniffing dogs as part of their general drug detection duties. They are doing so with a vengeance.

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drug dog
Unlike the United States, where drug dog searches are typically conducted on vehicles or homes, the South Australian law allows police to sic the dogs on individuals. Since October, when four drug dogs and their handlers have been working bars, nightclubs, concerts, and festivals, they have managed to arrest more than 300 people on drug charges.

Police Minister Michael Wright told reporters Monday 327 people had been caught with drugs, including Ecstasy, LSD, amphetamines, cocaine, and cannabis. Of those, only 17 were arrested for serious drug offenses; the others were given fines, strongly suggesting that what the drug dogs were finding was mainly pot.

Wright naturally praised the drug dog teams, saying they were working hard and producing results. He also said the drug dogs acted as a deterrent for people thinking about going out and taking drugs with them.

"This government is committed to protecting the people of South Australia and helping to ensure their safety at dining and entertainment precincts," Wright said. "Police now have the power to execute drug detection operations in places identified as hotspots for drug dealing and use."

Wright did not provide any statistics on the number of drug dog "alerts" that proved unfounded. But a 2007 study that examined a similar program in New South Wales from February 2002 to February 2003 found that drugs were found in only 27% of the cases where drug dogs alerted. In another 40% of the cases, suspects admitted having smoked cannabis in the recent past or having been near cannabis smokers.

Free Speech: ACLU Backs Pain Activist's Effort to Quash Subpoena Issued in Kansas Case

The American Civil Liberties Union (ACLU) has joined pain activist Siobhan Reynolds and the Pain Relief Network (PRN) in her effort to block a bare-knuckled federal prosecutor from compelling her to produce documents about her contacts with Kansas pain doctor Steven Schneider and his wife, as well as friends, relatives, employees and attorneys.

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Siobhan Reynolds at 2004 Congressional briefing
The federal grand jury subpoena marks the second time US Assistant Attorney Tanya Treadway has gone after Reynolds for her advocacy for the Schneiders as they face federal charges they unlawfully prescribed pain medications.

The Schneiders were arrested and their pain clinic and home raided by federal agents in December 2007. Reynolds, a tireless advocate for chronic pain patients and the doctors who prescribe for, went to Kansas to support the couple, whom she sees as being hounded by overzealous federal drug warriors. There, with her criticism of the prosecution's case, she became a thorn in Treadway's side.

Last July, Treadway sought a gag order barring Reynolds and the Schneiders from talking to the press and another order barring Reynolds from talking to "victims" and witnesses in the case. The judge hearing the case, US District Court Judge Monti Belot, denied that motion to stifle dissent.

At the time, Treadway said in court documents that Reynolds had a "sycophantic or parasitic relationship" with the Schneiders and alleged that she was using the case to further the Pain Relief Network's political agenda and her own personal interests.

Then, in March, Treadway hit Reynolds with the subpoena, which demands that Reynolds turn over all correspondence with attorneys, patients, Schneider family members, doctors, and others related to the Schneider case. Treadway's subpoena is supposedly part of an obstruction of justice investigation aimed at Reynolds. She also demands that Reynolds turn over bank and credit card statements showing payments to or from clinic employees, patients, potential witnesses and others, including virtually every attorney Reynolds knows.

That meant that in order to defend herself, Reynolds had to write and submit her own motion to quash the subpoena, which she filed on April 9. Now, the ACLU has ridden to the rescue, filing an amended motion to quash the subpoena that strongly argues the subpoena should be withdrawn because it threatens Reynolds' First Amendment rights and amounts to little more than a "fishing expedition" aimed at finding out information about the Schneiders' defense.

"These subpoenas constitute an abuse of the grand jury process," the ACLU argued. They would have "a chilling effect" on Reynolds' constitutionally protected speech. The subpoena directed at Reynolds is also "a misuse of the grand jury process because it is aimed at invading the defense camp of the Schneiders. On its face, AUSA Treadway's fishing expedition appears to have the impermissible purpose of obtaining information about the Schneider's defense. Therefore the subpoenas should be quashed as an abuse of the grand jury process."

The motion was heard on Tuesday (5/12), but there is no word back from the judge yet, who took it under advisement. Proceedings were conducted "under seal," at Treadway's behest, prohibiting the involved parties from publicly discussing it.

Search and Seizure: Supreme Court Limits Police Car Search Powers

A narrowly divided US Supreme Court Tuesday refused to expand police search powers at the expense of privacy rights, ruling that police cannot search a suspect's vehicle after the suspect has been detained and arrested absent probable cause. The 5-4 decision came in Arizona v. Gant.

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car search
In that case, Rodney Gant was a suspect in a drug investigation. As Tucson police surveilled a suspected drug house where they had come into contact with Gant earlier, Gant drove up and exited his vehicle. Having checked Gant's record after the earlier encounter, police knew he had an outstanding arrest warrant for driving with a suspended license. Police arrested and handcuffed Gant, then placed him in the back of a patrol car. Police then searched his vehicle, finding a gun and some cocaine. Gant was charged with and convicted of drug possession and sentenced to three years in state prison.

Before trial, Gant had sought to suppress the evidence against him, arguing it was the result of an unlawful search, but the trial judge denied that motion. Gant appealed the verdict, winning in the Arizona Supreme Court. The state of Arizona then appealed to the US Supreme Court.

To no avail. While the Supreme Court acknowledged police powers to make a search incident to arrest, the justices noted that the purposes of such searches were to ensure officer safety and the preservation of evidence. With the suspect cuffed in the back seat of a patrol car and with no reason to preserve any "evidence" of Gant's offense -- driving with a suspended license -- the court held that police needed a search warrant to conduct a search of his vehicle.

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest," wrote Justice John Paul Stevens for the majority. "When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

A rare victory for the Fourth Amendment from the Roberts court.

Feature: Supreme Court Hears Arguments in Junior High Girl Strip Search Case

The US Supreme Court heard oral arguments Tuesday in Safford Unified School District #1 v. Redding, a case that originated in a school administrator's decision to subject then 13-year-old Savannah Redding to a strip search after another student said she had obtained prescription-strength Ibuprofen tablets from her.

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US Supreme Court
The case began when administrators in Safford, Arizona, received a tip from a student and his parents that another child possessed the tablets and planned to give them to other students at lunch. Authorities confronted the second student and found Ibuprofen tablets in her possession. The second student told administrators she had obtained the pills from Redding.

Redding was escorted to the principal's office, and Redding's backpack and outer clothes were searched, but no pills were found. She was then told to remove her outer clothing in front of the school nurse and an administrative assistant, both female. Standing in her underwear, she was ordered to pull out her bra and underwear to allow any hidden pills to fall free. None did.

Redding and her parents then sued the school district for violating her constitutional right to be free of unreasonable searches and seizures. Redding won in the 9th US Circuit Court of Appeals, and the school district appealed to the Supreme Court.

The justices' questions during oral arguments Tuesday suggested that, as they sought to find a balance between student privacy and public school safety, they were tilting toward the latter. They appeared inclined to give school administrators broad authority to do what is necessary to protect kids from drugs.

That's what attorneys for the school district argued. "Searching any place where she might be reasonably hiding that contraband was constitutionally permissible" because the school district was acting as guardian, not law enforcement, said Matthew Wright, counsel for the district. "It's not like a criminal issue where they're trying to prosecute. This is a case where they're trying to protect," Wright said. "It is best for this Court to defer to their judgment... and not second-guess those rules."

Justice David Souter, noting that the drug at issue was Ibuprofen, interjected that, "At some point, this gets silly."

Still, Souter also remarked that it could have been a more dangerous drug, and the consequences of not acting could be tragic: "My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry."

Justice Antonin Scalia pressed Wright about whether a body cavity search would be permissible. While Wright tried to dance around that question, saying body cavity searches were not done because school officials were not trained to do them, Scalia kept pressing. In the end, Wright conceded that "I could see that result."

Despite concerns about how far school administrators could go in searching for drugs, the justices seemed even more concerned about more dangerous drugs. The justices repeatedly asked hypothetical questions about what if it had been heroin or methamphetamine instead of Ibuprofen.

When it came time for Redding's side of the case to be argued, a Justice Department attorney took the lead. "We believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive," said attorney David O'Neil. "And this is not a new standard."

"We agree with the federal government that before conducting an intrusive strip search a school needs to have location-specific information," argued Adam Wolf of the ACLU Drug Law Reform Project. "And while this case can begin and end with that well-accepted proposition, it's also important to recognize that a school needs greater -- a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search. This search violated the clearly established point that in order to conduct an intrusive search of one's body, the searching official needs to at least reasonably believe that the object is located underneath the undergarments. The Fourth Amendment does not account -- it does not countenance the rummaging on or around a 13-year-old girl's naked body."

Justice Stephen Breyer tried to get Wolf to elaborate on "how bad" such searches really were, noting that students often changed clothes at school for gym class, but that only inspired Justice Ruth Bader Ginsburg, the only woman on the court, to intervene. "It wasn't just that they were stripped to their underwear," she said incredulously, referring to Redding and another girl similarly searched at the school. "They were asked to shake their bra out, to stretch the top of their pants and shake that out."

While the justices were weighing constitutional rights and student safety, youth rights advocates had little trouble sorting out the issues. "Strip searching eighth graders is way over the line," said Amber Langston, eastern region outreach director for Students for Sensible Drug Policy (SSDP). "This kind of thing is a horrid example of the failure of our drug search policies in public schools. They said they were trying to protect the children, but who was protecting Savannah Redding from the humiliation inflicted on her by school officials?"

Students deserve the same constitutional rights as anyone else, said youth sociologist and Youth Facts founder Michael Males. And school districts should be making better choices, he added.

"Students should only be detained or searched under the same rules applied to adults," Males said. "If authorities have probable cause to suspect illegal behavior that would satisfy standards of reasonable suspicion, they can detain and search suspects. School strip searches require a very high level of probable cause, yet they typically seem based on gossip."

Males called the Redding case "particularly bizarre," noting that it only involved Ibuprofen. "School officials didn't seem interested in searching lockers, desks, or anywhere except inside the girl's underwear," he noted. "These kinds of traumatic cases are, again, why I keep arguing against raising hysteria about teenage drug use."

"Adults inspecting children's private parts is something we should be very wary of," said SSDP's Langston. "This was all over prescription-strength Ibuprofen, there was no evidence Savannah even had it except for the word of another student who was in trouble herself. If the Supreme Court allows this to stand, we will have given too much power to school officials to conduct such searches."

It's not just students but the school districts themselves that suffer from overbroad search policies, Males said. "These types of school searches have wound up costing hundreds of thousands or millions of dollars in legal costs and, to my knowledge, virtually never find anything, which raises questions of why administrators are allocating scarce education resources to them."

The Supreme Court will decide the case later this summer. All indications are it will reverse the appeals court and uphold this expansion of school administrators' authority to do "whatever it takes" to protect students from drugs.

Poking Around in a Teenager's Panties is a Sick Crime (Unless It's a Drug Search)

At age 13, Savana Redding was strip-searched by school officials who suspected her of possessing prescription Ibuprofen. It turned out their information was bad, but they are so proud of what they did that they've defended their actions all the way to the U.S. Supreme Court. Soon, the right to drug-search young girls' underpants may be firmly enshrined in our jurisprudence, so that the whims of drug hysteria will decide when it's appropriate to do that, rather than some old list of high-minded legal principles.

That this incident even happened is disturbing enough before one tries to come to terms with the fact that the Supreme Court appears likely to uphold the search. Perverts.

Important 4th Amendment Supreme Court Victory

Dear Friends:

Today, the Supreme Court handed down a great ruling in Arizona v. Gant, which increases 4th Amendment protection against warrantless vehicle searches. We've been following the case for a while, and this outcome is exciting.

Please visit our blog for FYR Associate Director Scott Morgan's analysis on the decision's likely impact.

Sincerely,                                                                                                                     

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Steve Silverman

P.S. Flex Your Rights is the only organization focused solely on defending the 4th Amendment and teaching citizens to understand their rights during police encounters. If you support our efforts, please consider making a one-time tax-deductible donation today. As you know, we can't do this important work without your support.

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Supreme Court Restricts Warrantless Vehicle Searches

The Supreme Court's decision in Arizona v. Gant today was a pleasant surprise. The Court struck a blow against the deeply flawed search-incident-to-arrest doctrine that has permitted police to perform a vehicle search anytime someone in the car is arrested. For the last 28 years, concerns over officer safety have been held to permit ridiculous numbers of automatic vehicle searches that had more to do with the drug war than officer safety.

My thoughts on the case are over at Flex Your Rights.

Even Cops Are Getting Screwed by Inaccurate Drug Tests

Via Radley Balko, this one is hard to believe:

A decorated ex-cop who claimed he tested positive for cocaine because he ingested the drug during oral sex with his girlfriend can't have his job back, a Manhattan judge has ruled.

Supreme Court Justice Eileen Rakower last month shot down helicopter pilot Jon Goldin's attempt to overturn his April 2008 dismissal from the NYPD.

Goldin, a 15-year veteran, tested positive for cocaine in October 2006 in a random drug test using hairs from his arm.
...
Goldin's lawsuit said the cocaine in his system was the product of "passive ingestion" from performing oral sex on girlfriend Coreen McCarthy, who, once he tested positive, admitted to him that she was a regular cocaine user. [New York Daily News]

Needless to say, this cocaine-ingested-through-oral-sex line sounds like the laugh-out-loud lame excuse of the century. I'm highly inclined to doubt that such a thing is even remotely possible, but as to the question of whether or not the officer was actually using cocaine, I don’t know what to think. If his colleagues are to be believed, the story on this guy is that he's well known for not doing drugs. Supposedly, he's an "adherent of the 'straight edge' lifestyle that rejects substance use" and everyone knows he doesn't get high:

More than 70 friends went to bat for the ex-cop, saying they had never seen him take even a sip of coffee and that he abstained at bars while others drank booze.

I don't know these people, but I trust them more than I trust the drug test itself, because drug tests are bullshit. They're just not accurate. If a bunch of people come forward complaining that someone got railroaded by a drug test, I'm going to assume that's exactly what happened. It's happened before.

Notwithstanding the absurdity of the officer's crazy oral sex explanation, I wouldn’t be at all surprised if he's the innocent victim of a false positive drug test result. If officer Goldin is telling the truth, then it's worth taking a moment to contemplate the irony that a cop who lives by a vehement anti-drug philosophy ended up getting screwed over by one of the numerous fraudulent technologies designed to ruin the lives of drug users.

I wonder what he thinks of the drug war now, after finding himself on the receiving end of its virtually infinite incompetence.

Flex Your Rights

I've posted a couple new items in the Flex Your Rights blog recently that are worth checking out. We've got an awesome site upgrade coming out soon, so I'm trying to get back into the habit of doing at least a couple posts a week.

The focus is on 4th Amendment and police misconduct issues rather than drug policy specifically, but I'd love to see some of you commenting over there if you're interested.

Drug Testing: Widely Publicized West Virginia Bill to Test People on Public Assistance Dies

A bill by West Virginia Republican state Del. Craig Blair that would have mandated random drug testing of people who receive food stamps or unemployment benefits received nationwide publicity, but no respect in Charleston, where the measure is stalled in committee and won't even get a hearing. A last chance effort by Blair to force the bill to a House floor vote Tuesday was defeated 70-30 on a straight party line vote.

The bill, HB 3007, picked up a handful of cosponsors, but also attracted heated opposition from welfare rights, civil liberties, and children's advocacy groups. Opponents argued that requiring drug testing to receive government benefits was most likely unconstitutional, more likely to impact poor families negatively than not, and just downright cruel.

Blair argued that the state was facing "a crisis" of drug abuse among state aid recipients, but never produced evidence to back up his claim. But he has still achieved something: Instant notoriety. Blair, who is not publicity-shy, created his own NotWithMyTaxDollars.com web site to push the bill, and has gotten national media attention. He claims his web site has 50,000 hits now.

But he has also suffered the slings and arrows of outraged fellow legislators. Del. Sally Susman (D-Raleigh) hand delivered a letter to Blair calling his bill the "most ridiculous" of the session. House Judiciary Chairwoman Carrie Webster (D-Kanawha) said of Blair that "he has an idea, but he has no plan," as she explained that many bills never make it to committee agendas.

Blair and his drug testing bill are gone for this year. But similar efforts remain alive in a handful of other states.

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