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Medical Marijuana Update

More DEA raids in Los Angeles, federal prison bureaucrats ignore a Michigan medical marijuana prisoner's medical needs, federal drug bureaucrats prevail in a medical marijuana research case, and there is lots of action in state legislatures, including a Wednesday afternoon victory in the Illinois House. Let's get to it:

National

On Monday, a federal appeals court rejected Prof. Lyle Craker's appeal to overturn a DEA decision to not allow him to grow medical marijuana for research purposes.The appeals court sided with the DEA, finding its decision to maintain the federal marijuana cultivation monopoly was reasonable and in line with the Controlled Substances Act. Craker first sought approval in 2001.

California

On Monday, a hearing on a Lake County lawsuit challenging the county's cultivation ordinance was postponed when the judge hearing the case recused himself. Judge Richard Martin recused himself because his son is running for sheriff against Sheriff Frank Rivero, who is a defendant in the case. As a result, the lawsuit against the county and its sheriff will be sent to Lake County Superior Court Presiding Judge Stephen Hedstrom for reassignment. Lake County resident Donald Merill is suing over the Board of Supervisors' decision last summer to approve an ordinance limiting the number of pot plants allowed in outdoor cultivation, banning commercial cultivation of medical marijuana and prohibiting growing on vacant lands in the unincorporated areas of the county. Now, a case management conference set for next week has been pushed back until late August, too late for this year's outdoor growing season.

On Tuesday, supporters of a Los Angeles dispensary initiative kicked off their campaign with a city hall press conference. Proposition D is one of three dispensary initiatives going before city voters on May 21. The measure would cap the number of dispensaries at 135, as would Proposition E, whose backers have switched to supporting Prop D. A third initiative, Proposition F, has no caps on dispensaries, but imposes other restrictions. Both Props D and F would impose a gross tax receipts of 2% on medical marijuana dispensary revenues.

Also on Tuesday, DEA and local law enforcement raided four Los Angeles area dispensaries. Hit were the Zen and Alternative Herbal Health Services dispensaries on Santa Monica Boulevard in West Hollywood, La Brea Compassionate Caregivers in Los Angeles, and Marina Caregivers in Marina del Rey. Law enforcement also executed search warrants at seven other locations and arrested three people. Those arrested are accused of selling marijuana outside of California and various other offenses.

Illinois

On Tuesday, nearly 250 doctors signed on to support medical marijuana legislation pending at the state house. Several of them, along with patients, spoke at a Chicago press conference one day before a vote on House Bill 1 was expected in the House. The bill would create a pilot medical marijuana program, including a dispensary system.

On Wednesday, the bill passed the House on a 61-57 vote. It now goes to the Senate.

Michigan

Late last week, the federal Bureau of Prisons refused to house an ailing medical marijuana patient at one of its medical facilities even though he is a kidney-pancreas transplant candidate, suffers coronary artery disease, and requires a strict medication regime. Jerry Duval, 53, must report to federal prison on June 11 and must serve his sentences at a federal correctional facility in Ohio. His sentencing judge had recommended that he be "placed in a Federal Medical Center or other facility deemed to be appropriate in consideration of the Defendant's medical needs." Last August, Montana medical marijuana prisoner Richard Flor, 68, died in federal prison after his medical conditions were given short shrift.

Nevada

Last Thursday, a medical marijuana dispensary bill won a Senate committee vote. Senate Bill 374 was approved by the Senate Judiciary Committee on a unanimous vote. The bill now goes to the Senate Finance Committee. Because the bill includes fees, it must win two-thirds approval to pass the Senate.

On Saturday, the state's first medical marijuana school opened. The Cannabis Career Institute launched its Budtender School with a workshop for about 40 students on Saturday in Henderson. The school will teach all aspects of the medical marijuana business, including how to grow marijuana legally and bake it into brownies, cookies and cakes. The institute has held similar workshops in other cities across the US, and more than 1,500 people hold certificates from it.

New Hampshire

Last Thursday, medical marijuana legislation got a hearing in a key Senate committee. The bill, House Bill 573, was heard in the Senate Health, Education, and Human Services Committee. Opponents suggested that a clinical study be done, but supporters retorted that such suggestions were merely a way to delay the bill. A similar measure has already passed the House. While Gov. Maggie Hassan (D) has said she would support a tightly regulated program, she has expressed concern about a home-grow option.

New York

On Tuesday, a medical marijuana bill passed the Assembly Health Committee on a 21-4 vote. The bill, Assembly Bill 6357, would allow patients suffering from severe debilitating or life-threatening conditions to use medical marijuana. A practitioner who is licensed to prescribe controlled substances would certify that a patient has a severe debilitating or life-threatening condition that should be treated with the medical use of marijuana.  Certifying and dispensing medical marijuana would be included in the I-STOP prescription monitoring system for controlled substances enacted in 2012.

Also on Tuesday, Gov. Andrew Cuomo (D) said he still opposes medical marijuana. "I do not support medical marijuana. I understand the pros and cons. I understand the argument," Cuomo said. "We are looking at it, but at this point, I don't support medical marijuana. I understand the benefits, the risks. How do you construct a system that really is that tightly controlled that you don’t have dissemination beyond the directed population?"

North Carolina

Last Friday, Rep. Kelly Alexander introduced a medical marijuana study bill. The bill, House Bill 941, would require a legislative research commission to study medical marijuana-related issues. Earlier this session, Alexander had introduced a medical marijuana bill, but that was killed by legislators who complained they were getting too much feedback from constituents.

Oregon

Last Friday, it was learned that the federal government had forced the state to release medical marijuana patient records. The Oregon Public Health Division, which keeps tabs on medical marijuana card holders, has handed over an undisclosed number of patient records as the result of a federal search warrant. The DEA executed the warrant and seized Oregon Medical Marijuana Program records in an investigation into illegal drug activity. The name and number of patients information pulled is still unknown because the investigation is ongoing and more records could be subpoenaed. Patients and activists are not pleased.

Rhode Island

Last Thursday, medical marijuana supporters protested proposed restrictions on caregivers at a rally at the state house. More than two dozen people showed up to oppose amendments to the state's law that would reduce the number of plants that a caregiver could grow from 24 to 12 and allow a patient to grow a maximum of 6 plants. Patients can currently grow twice that number. The caregivers and patients also criticized amendments that would require the growers to notify city or town zoning officials about their plans to grow marijuana.

Federal Appeals Court Rejects Researcher's Bid to Grow Medical Marijuana

The US First Circuit Court of Appeals in Boston Monday sided with the Drug Enforcement Administration (DEA) in rejecting University of Massachusetts-Amherst scientist Dr. Lyle Craker's appeal of the agency's decision to deny him a license to grow medical marijuana for research purposes.

Professor Lyle Craker (maps.org)
Craker sought to break the federal government's monopoly on the production of marijuana for research purposes. Because of hostility to research on the possible benefits of marijuana in the federal drug control and research bureaucracies, the federal monopoly on marijuana for research purposes created a bottleneck, blocking potential valuable research efforts.

The decision in Craker v. DEA caps a 12-year odyssey through federal regulatory purgatory for Craker and the Multidisciplinary Association for Psychedelic Studies, which had backed the UMass-Amherst scientist's bid to develop a source of marijuana independent of that produced under the auspices of NIDA.

"After such a long struggle, I'm disappointed that the Court failed to recognize the need for an independent source of plant material for use in research on the medical uses of marijuana," said Prof. Craker. "In doing so, they have failed the American people, especially those for whom marijuana as a medicine could help."

Craker first applied for a license from the DEA in 2001; it took the agency three years to initially deny his request. In 2007, the DEA's own administrative law judge recommended that the agency grant his application, but two years later, then DEA Deputy Administrator (and current Adminstrator) Michele Leonhart rejected that recommendation. Craker sought a formal reconsideration, which Leonhart denied in 2011.

Craker then appealed to the First Circuit, with oral arguments taking place in May 2012. In its decision Monday, the First Circuit upheld Leonhart's denial. In so doing, it dismissed Craker's claims that the DEA had changed the rules in the middle of the game and that the supply of marijuana from the NIDA facility was inadequate and uncompetitive. Leonhart's interpretation of the Controlled Substances Act was permissible and her findings were "reasonable and supported by the evidence," the court held.

"This ruling will result in sick people continuing to be denied the medicine they desperately need, and which 18 states and the District of Columbia recognize as legitimate," said Allen Hopper, criminal justice and drug policy director for the ACLU of California and one of the lawyers representing Prof. Craker. "The Obama administration must stop blocking the research necessary to take marijuana through the FDA approval process."

Boston, MA
United States

Are We Really "Going Dark"? -- The DEA and Apple's iMessage [FEATURE]

special to Drug War Chronicle by veteran investigative crime journalist Clarence Walker, cwalkerinvestigates@gmail.com

When the tech world news web site CNET published excerpts of a leaked DEA memo explaining how, during an investigation, the agency was unable to access the messages of drug dealers using the Apple iMessage system built into a Verizon cell phone, it ignited a media frenzy. "It is impossible to intercept iMessages between two Apple devices," even with a court order approved by a judge, DEA complained.

The DEA's warning, marked "law enforcement sensitive," was the most detailed example yet of the technological obstacles law enforcement faces when attempting to conduct court-authorized surveillance on non-traditional forms of communication. Federal law enforcers have coined the catchy phrase "Going Dark" to illustrate the problem.

News stories and tech blogs nationwide highlighted the effectiveness of Apple's encryption protection from privacy invaders, particularly law enforcement. (See, for example, stories here and here.) Amidst the frenzy, what went little noted was that no one's private messages held by Apple's iMessage or any other cell phone service are actually immune from federal government snooping. Under the Stored Communications Act (SCA), if the DEA wants access to someone's messaging communications, all it has to do is get a warrant to review those messages.

Why most media accounts neglected to mention this basic fact is uncertain, but the failure to do so not only misled readers into believing their iMessage communications were secure from government spying, it also fed into and reinforced a narrative being constructed by federal law enforcement agencies -- that rapid advances in telecommunications technologies are leaving the government in danger of "Going Dark" when it comes to its ability to surveil its citizens, and something needs to be done to fix the "problem."

"Apple iMessage users should be aware that regardless of what they heard last week, their messages can be easily obtained by law enforcement pursuant to a warrant under the Electronic Communication Act [ECPA]," said Alan Butler, an in-house attorney with the Electronic Privacy Information Center (EPIC). "The ECPA provides in Title 111, commonly referred to as the Stored Communication Act, that a government entity may require the disclosure of electronic communications held by a provider electronic storage," Butler told the Chronicle by email. Even though the messages are encrypted by the phone company as they are sent by iMessage, Apple can decrypt messages and hand them over to law enforcement with a warrant!"

"Nothing about the DEA memo says anything about trying to crack iMessage," Cato Institute analyst Julian Sanchez told the Chronicle in an email. "All it really says is that an ordinary wiretap on a cellphone's text messages isn't going to pick up iMessages, which is a no brainer because iMessages go over the Internet and not over a cell carrier."

The case that inspired the DEA memo centers around a drug investigation in Texas back in February where it was unable to intercept iMessages even though a federal judge had issued a court order approving the DEA's interception of the suspects' discussions about drug deals. Although the Federal Wiretap Act allows real-time surveillance of a device or computer, the DEA discovered in the February case that most records obtained from Verizon -- the carrier of the suspect's device -- were incomplete.

Cell phone surveillance is a key tool for law enforcement in monitoring criminal activity. The New York Times reported last June that federal, state, and local officials nationwide had requested assorted cell phone data 1.3 million times in the previous year. But  iMessages can be sent through iPhones, iPads, and even Macs running the OS platform with the capability to bypass the text messaging services of a cell phone carrier. Apple revealed in January that it sees over 2 billion messages sent each day from a half-billion iOS and Mac devices that uses the iMessage to keep private conversations and text messages secure from snooping.

When iMessage was launched in 2011, company executives boasted about its "secure end-to-end" encryption, and some critics say the leaking of the DEA memo is a clever scheme by the feds to help convince lawmakers to mandate that all communication systems, including social media and internet messaging systems have a back-door mechanism to allow government access to the data. 

Cato's Sanchez explained why he was leery of the DEA memo and the motives for its leaking.

https://stopthedrugwar.org/files/alan-butler-200px.jpg
EPIC attorney Alan Butler
"If this leak came from law enforcement, and that's mostly who would have access to this memo, I wonder why someone would leak it," he said. "One reason might be to support the larger 'Going Dark' campaign by the Department of Justice. Another reason might be the hope that drug dealers will mistakenly assume iMessages are safe and get lazy. Those are two possibilities worth thinking about."

The DEA also complained "that iMessages between two Apple devices are considered encrypted communication and cannot be intercepted regardless of the cell phone service provider," even though in the same memo, it conceded that "sometimes the messages can be intercepted depending where the intercept is placed."

Was the DEA memo leak part of an ongoing campaign to revamp the federal laws governing surveillance of electronic communications? That's hard to prove, but showing that there is such a campaign is less difficult.

In February testimony to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security, FBI General Counsel Valerie Caproni coined the term "Going Dark" to describe what she called federal law enforcement's rapidly diminishing ability to monitor high-tech communications products as technologies advanced over the past 10 to 15 years. Caproni singled out "social-networking sites, web-based email and peer-to-peer communications."

Other federal officials have been making similar noises.  

"The FBI simply can't keep up with criminals taking advantage of online communication to hide evidence of their actions," FBI lawyer Andrew Weissman said last month during a meeting with American Bar Association.

The FBI and other federal law enforcers claim there is a growing gap between the legal authority of federal and other law enforcement agencies to intercept electronic communications pursuant to court order or direct warrant under the Communications Assistance Law Enforcement Act (CALEA) and their ability to actually do so. And they want new legislation to fix that.

Passed in 1994, CALEA law initially ordered phone companies to create a mechanism to have their systems conform to a wiretap in real-time surveillance. The Federal Communications Commission (FCC) extended CALEA in 2005 to apply to broadband providers, such as universities and Internet service providers, but messaging and social media services, such as Google Talk, Skype, Myspace, Yahoo and Facebook, as well as encrypted devices like Blackberry and Apple communications are not covered.

The FBI argues that "Going Dark" is a real and threatening possibility, with increased risk to national security and public safety. And the FCC has joined forces with the FBI by considering updating CALEA to require that digital products equipped with video or voice chats over the Internet, including Skype and Google Box Live, to rejigger their systems to allow the feds to monitor criminal activity as it happens in real time.

"We have noticed a massive upstick in the amount of FCC-CALEA inquiries within the last year, most of which are intended to address 'Going Dark' issues," said Chris Canter, a lead compliance counsel at Marashlian & Donahue , a law firm specializing in CALEA law. "This generally means that the FCC is laying the groundwork for regulatory action," he told the Chronicle.

"If we applied the FBI's logic to the cell phone carriers, it would state that every individual phone should be designed with built-in bugs," the Electronic Frontier Foundation said in a statement on CALEA. "Consumers would simply have to trust law enforcement or the phone companies not to activate those bugs without just cause."

EFF filed a Freedom of Information Act (FOIA) request with the FBI and other federal law enforcement agencies showing how the feds might try to justify forcing high-tech services to rewire their systems for expanded wiretapping purposes. The FOIA requested "information concerning the difficulties that the FBI and DOJ has encountered in conducting authorized electronic surveillance."

But so far, the Department of Justice has withheld the bulk of relevant information on the topic, provoking San Francisco US District Court Judge Richard Seeborg to order the feds to turn over the records. No court date scheduled for the feds to comply.

While law enforcement is calling for legislative changes to aid its work, critics insist that even if Congress refuses to pass laws to tackle the "Going Dark" problem, investigators can still obtain a special warrant allowing them to sneak into private residences and businesses to install a keystroke-logging system onto a computer or other devices to record passwords to unlock data they need to make a case.

The DEA adopted this same technique in the Texas case and another case where suspected drug dealers used PGP and the encrypted Web-email service identified in court records as Hushmail.com. Investigators can also send a malware to gain control of a targeted cell phone to extract the text messages, or as a last resort, obtain a warrant to seize the physical device and perform a traditional forensic analysis.

"New technologies frequently create uncertainty and the law is slow to adapt while leaving us to fight over how much surveillance we can tolerate in a free society," noted EPIC attorney Butler. "No one has quite figured out how to strike that balance in every case. However, the Fourth Amendment requires that our persons, houses, papers, and effects be protected from unreasonable search and seizures."

The battle between the imperatives of law enforcement and the privacy rights of Americans is never definitively won. Instead, it is better viewed as a never-ending series of skirmishes. And the contested terrain of this particular skirmish is your iPad.

Feds' New Cell Phone Spying Device Raising Privacy Concerns [FEATURE]

special to Drug War Chronicle by independent investigative journalist Clarence Walker, freelancewriter82@gmail.com

Blocked by a Supreme Court decision from using GPS tracking devices without a warrant, federal investigators and other law enforcement agencies are turning to a new, more powerful and more threatening technology in their bid to spy more freely on those they suspect of drug crimes. That's leading civil libertarians, electronic privacy advocates, and even some federal judges to raise the alarm about a new surveillance technology whose use has yet to be taken up definitively by the federal courts.

StingRay cell phone spying device (US Patent photo)
The new surveillance technology is the StingRay (also marketed as Triggerfish, IMSI Catcher, Cell-site Simulator or Digital Analyzer), a sophisticated, portable spy device able to track cell phone signals inside vehicles, homes and insulated buildings. StingRay trackers act as fake cell towers, allowing police investigators to pinpoint location of a targeted wireless mobile by sucking up phone data such as text messages, emails and cell-site information.

When a suspect makes a phone call, the StingRay tricks the cell into sending its signal back to the police, thus preventing the signal from traveling back to the suspect's wireless carrier. But not only does StingRay track the targeted cell phone, it also extracts data off potentially thousands of other cell phone users in the area.

Although manufactured by a Germany and Britain-based firm, the StingRay devices are sold in the US by the Harris Corporation, an international telecommunications equipment company. It gets between $60,000 and $175,000 for each Stingray it sells to US law enforcement agencies.

[While the US courts are only beginning to grapple with StingRay, the high tech cat-and-mouse game between cops and criminals continues afoot. Foreign hackers reportedly sell an underground IMSI tracker to counter the Stingray to anyone who asks for $1000. And in December 2011, noted German security expert Karsten Nohl released "Catcher Catcher," powerful software that monitors a network's traffic to seek out the StingRay in use.]

Originally intended for terrorism investigations, the feds and local law enforcement agencies are now using the James Bond-type surveillance to track cell phones in drug war cases across the nation without a warrant. Federal officials say that is fine -- responding to a Freedom of Information Act (FOIA) request filed by the Electronic Freedom Foundation (EFF) and the First Amendment Coalition, the Justice Department argued that no warrant was needed to use StingRay technology.

"If a device is not capturing the contents of a particular dialogue call, the device does not require a warrant, but only a court order under the Pen Register Statute showing the material obtained is relevant to an ongoing investigation," the department wrote.

The FBI claims that it is adhering to lawful standards in using StingRay. "The bureau advises field officers to work closely with the US Attorney's Office in their districts to comply with legal requirements," FBI spokesman Chris Allen told the Washington Post last week, but the agency has refused to fully disclose whether or not its agents obtain probable cause warrants to track phones using the controversial device.

And the federal government's response to the EFF's FOIA about Stingray wasn't exactly responsive. While the FOIA request generated over 20,000 records related to StingRay, the Justice Department released only a pair of court orders and a handful of heavily redacted documents that didn't explain when and how the technology was used.

The LA Weekly reported in January that the StingRay "intended to fight terrorism was used in far more routine Los Angeles Police criminal investigations," apparently without the courts' knowledge that it probes the lives of non-suspects living in the same neighborhood with a suspect.

Critics say the technology wrongfully invades technology and that its uncontrolled use by law enforcement raised constitutional questions. "It is the biggest threat to cell phone privacy you don't know about," EFF said in a statement.

ACLU privacy researcher Christopher Soghoian told a Yale Law School Location Tracking and Biometrics Conference panel last month that "the government uses the device either when a target is routinely and quickly changing phones to thwart a wiretap or when police don't have sufficient cause for a warrant."

"The government is hiding information about new surveillance technology not only from the public, but even from the courts," ACLU staff attorney Linda Lye wrote in a legal brief in the first pending federal StingRay case (see below). "By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants, and that's not how the Constitution works."

Lye further expressed concern over the StingRay's ability to interfere with cell phone signals in violation of Federal Communication Act. "We haven't seen documents suggesting the LAPD or any other agency have sought or obtained FCC authorization," she wrote.

StingRay pricing chart (publicintelligence.net)
"If the government shows up in your neighborhood, essentially every phone is going to check in with the government," said the ACLU's Soghoian. "The government is sending signals through people's walls and clothes and capturing information about innocent people. That's not much different than using invasive technology to search every house on a block," Soghoian said during interviews with reporters covering the StingRay story.

Advocates also raised alarms over another troubling issue: Using the StingRay allows investigators to bypass the routine process of obtaining fee-based location data from cell service providers like Sprint, AT&T, Verizon, T-Mobile and Comcast. Unlike buying location data fro service providers, using StingRay leaves no paper trail for defense attorneys.

Crack defense attorney Stephen Leckar who scored a victory in a landmark Supreme Court decision over the feds' warrantless use of a GPS tracker in US v. Jones, a cocaine trafficking case where the government tracked Jones' vehicle for weeks without a warrant, also has concerns.

"Anytime the government refuses to disclose the ambit of its investigatory device, one has to wonder, what's really happening," he told the Chronicle. "If without a warrant the feds use this sophisticated device for entry into people's homes, accessing private information, they may run afoul of a concurring opinion by Justice Alito, who ruled in US v Jones whether people would view unwarranted monitoring of their home or property as Constitutionally repugnant."

Leckar cited Supreme Court precedent in Katz v. US (privacy) and US v. Kyllo (thermal imaging), where the Supreme Court prohibited searches conducted by police from outside the home to obtain information behind closed doors. Similar legal thinking marked February's Supreme Court decision in a case where it prohibited the warrantless use of drug dogs to sniff a residence, Florida v. Jardines.

The EFF FOIA lawsuit shed light on how the US government sold StingRay devices to state and local law enforcement agencies for use specifically in drug cases. The Los Angeles and Fort Worth police departments have publicly acknowledged buying the devices, and records show that they are using them for drug investigations.

"Out of 155 cell phone investigations conducted by LAPD between June and September 2012, none of these cases involved terrorism, but primarily involved drugs and other felonies," said Peter Scheer, director of the First Amendment Center.

The StingRay technology is so new and so powerful that it not only raises Fourth Amendment concerns, it also raises questions about whether police and federal agents are withholding information about it from judges to win approval to monitor suspects without meeting the probable cause standard required by the Fourth. At least one federal judge thinks they are. Magistrate Judge Brian Owsley of the Southern District of Texas in Corpus Christi told the Yale conference federal prosecutors are using clever techniques to fool judges into allowing use of StingRay. They will draft surveillance requests to appear as Pen Register applications, which don't need to meet the probable cause standards.

"After receiving a second StingRay request," Owsley told the panel, "I emailed every magistrate judge in the country telling them about the device. And hardly anyone understood them."

In a earlier decision related to a Cell-site Simulator, Judge Owsley denied a DEA request to obtain data information to identify where the cell phone belonging to a drug trafficker was located. DEA wanted to use the suspect's E911 emergency tracking system that is operated by the wireless carrier. E911 trackers reads signals sent to satellites from a cell phone's GPS chip or by triangulation of radio transmitted signal. Owsley told the panel that federal agents and US attorneys often apply for a court order to show that any information obtained with a StingRay falls under the Stored Communication Act and the Pen Register statute.

DEA later petitioned Judge Owsley to issue an order allowing the agent to track a known drug dealer with the StingRay. DEA emphasized to Owsley how urgently they needed approval because the dealer had repeatedly changed cell phones while they spied on him. Owsley flatly denied the request, indicating the StingRay was not covered under federal statute and that DEA and prosecutors had failed to disclose what they expected to obtain through the use of the stored data inside the drug dealer's phone, protected by the Fourth Amendment.

"There was no affidavit attached to demonstrate probable cause as required by law under rule 41 of federal criminal procedures," Owsley pointed out. The swiping of data off wireless phones is "cell tower dumps on steroids," Owsley concluded.

But judges in other districts have ruled favorably for the government. A federal magistrate judge in Houston approved DEA request for cell tower data without probable cause. More recently, New York Southern District Federal Magistrate Judge Gabriel Gorenstein approved warrantless cell-site data.

"The government did not install the tracking device -- and the cell user chose to carry the phone that permitted transmission of its information to a carrier," Gorenstein held in that opinion. "Therefore no warrant is needed."

In a related case, US District Court Judge Liam O'Grady of the Northern District of Virginia ruled that the government could obtain data from Twitter accounts of three Wikileakers without a warrant. Because they had turned over their IP addresses when they opened their Twitter accounts, they had no expectation of privacy, he ruled.

"Petitioners knew or should have known that their IP information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter terms of service and privacy policy," Judge O'Grady wrote.

A federal judge in Arizona is now set to render a decision in the nation's first StingRay case. After a hearing last week, the court in US v. Rigmaiden is expected to issue a ruling that could set privacy limits on how law enforcement uses the new technology. Just as the issue of GPS tracking technology eventually ended up before the Supreme Court, this latest iteration of the ongoing balancing act between enabling law enforcement to do its job and protecting the privacy and Fourth Amendment rights of citizens could well be headed there, too.

DEA Targets FedEx, UPS in Online Pharmacy Battle

Charged with cracking down on the diversion of prescription drugs, the DEA has pursed doctors, pharmacists, pharmacy chains, and wholesale drug suppliers. It has now turned a baleful eye on shipping companies as well, with differing results -- at least so far.

The Orlando Sentinel reported Tuesday that both UPS and FedEx had admitted in corporate filings that they were the targets of DEA probes into packages of pills shipped from online pharmacies. Prescriptions filled by online pharmacies are illegal if there is not a real doctor-patient relationship, and the DEA maintains that prescriptions written by "cyber doctors" relying on online questionnaires are not legal.

FedEx has strongly pushed back against the DEA probe, but UPS has now buckled under the pressure. In a Friday statement, the DEA announced that UPS had agreed to forfeit $40 million it had been paid for shipments by online pharmacies and to enter into a "compliance program" to ensure online pharmacies can't use its services. The deal was part of a non-prosecution agreement the shipper signed with federal prosecutors in Northern California.

DEA accused UPS of knowingly shipping the illegally-prescribed drugs between 2003 and 2010 because "it was on notice, through some employees" that such activities were occurring. DEA also accused UPS of failing to do anything about it.

"DEA is aggressively targeting the diversion of controlled substances, as well as those who facilitate their unlawful distribution," said DEA Administrator Michele Leonhart. "This investigation is significant and DEA applauds UPS for working to strengthen and enhance its practices in order to prevent future drug diversion."

FedEx may prove a tougher nut to crack. Officials there called the federal probe "absurd and disturbing" and said it threatened customer privacy. They also accused the DEA of failing to cooperate with them in efforts to resolve the problem.

"We are a transportation company -- we are not law enforcement, we are not doctors and we are not pharmacists," FedEx spokesman Patrick Fitzgerald said in a prepared statement. "We have no interest in violating the privacy of our customers by opening and inspecting their packages in an attempt to determine the legality of the contents. We stand ready and willing to support and assist law enforcement. We cannot, however, do their jobs for them."

FedEx complained that rather than working with the shipping industry to come up with solutions, the Justice Department appeared focused on finding ways to prosecute shippers.

"This is unwarranted by law and a dangerous distraction at a time when the purported illegal activity by these pharmacies continues," Fitzgerald said.

FedEx has been a major campaign contributor to US Rep. John Mica (R-FL), whom the Sentinel reported had sent a letter to Leonhart and Attorney General Eric Holder asking them to recognize "the difficulty and unfairness of requiring those carriers to assume responsibility for the legality and validity of the contents of the millions of sealed packages that they pick up and deliver ever day."

Mica told the Sentinel that while he is "concerned about prescription drugs," it was inefficient to try to turn shipping companies into drug policy enforcers. "You can't stop commerce; you can't open every package," Mica said. "I'm only asking them for a reasonable approach."

But it doesn't appear that DEA and the Justice Department see things the same way as Rep. Mica does.

San Francisco, CA
United States

US, International Drug Warriors Attack State Marijuana Legalization [FEATURE]

As the nation awaits the Obama administration's response to marijuana legalization votes in Colorado and Washington, Tuesday saw a two-pronged attack on the whole notion. On the one hand, former drug czars and Drug Enforcement Administration (DEA) heads lined up to urge the administration to act now to strangle legalization in its crib, while on the other, the International Narcotics Control Board (INCB) warned that allowing states to legalize would violate international drug control treaties.

"S.O.S." web site celebrates defeat of Hawaii marijuana legalization bill
Legalization supporters rejected the attacks, comparing the ex-DEA chiefs to Prohibition agents seeking to justify their efforts and dismissing the global anti-drug bureaucrats as largely irrelevant.

In a joint letter under the auspices of the anti-drug reform group Save Our Society From Drugs, eight former heads of the DEA and four former heads of the Office of National Drug Control Policy urged the federal government to act now to nullify the votes in Colorado and Washington. The same group similarly called on Attorney General Holder to speak out against those state initiatives last September, but he failed to do so.

Holder, who said last week his decision will be "coming soon," was scheduled to appear before the Senate Judiciary Committee Wednesday. The retired drug fighters urged senators to press him on the issue.

Holder's actual appearance, though, was anticlimactic. He told the committee only that he hoped, again, to be able to announce a policy "relatively soon."

That prompted committee chair Sen. Patrick Leahy (D-VT) to hand out some advice of his own. "If you're going to be -- because of budget cuts -- prioritizing matters, I would suggest there are more serious things than minor possession of marijuana, but it's a personal view," Leahy told Holder, adding that more states were sure to follow in Colorado's and Montana's footsteps.

That's not what the drug warriors were telling Holder.

"We, the undersigned, strongly support the continued enforcement of federal law prohibiting the cultivation, distribution, sale, possession, and use of marijuana -- a dangerous and addictive drug which already has severe harmful effects on American society," they wrote. "We also respectfully request your committee at its March 6 hearing to encourage Attorney General Eric Holder to adhere to long-standing federal law and policy in this regard, and to vigorously enforce the Controlled Substances Act (CSA)."

The signatories suggested that senators ask Holder is he still believed in the Supremacy Clause when it comes to conflicts between state and federal law and why he isn't enforcing the Controlled Substances Act in Colorado and Washington. They also suggested asking him "what is being done about our international drug treaty obligations," noting that they require the federal government to enforce marijuana prohibition.

And speaking of international drug treaty obligations, the INCB, which is charged with ensuring that countries live up to them, also criticized marijuana legalization as it issued its 2012 Annual Report.

Noting the popular votes in favor of legalization in Colorado and Washington, INCB reiterated that "the legalization of cannabis for non-medical and non-scientific purposes would be in contravention to the provisions of the 1961 Convention as amended by the 1972 Protocol."

The INCB also took a shot at medical marijuana, noting that "the control requirements that have been adopted in the 17 states in question and in the District of Columbia under the 'medical' cannabis schemes fall short of the requirements set forth in articles 23 and 28 of the 1961 Convention as amended by the 1972 Protocol."

And, also expressing concerns about decriminalization moves, INCB "requests that the government of the United States take effective measures to ensure the implementation of all control measures for cannabis plants and cannabis, as required under the 1961 Convention, in all states and territories falling within its legislative authority."

The two-pronged attack excited a quick response from drug reform groups and at least one Democratic congressman.

"As Supreme Court Justice Louis Brandeis once observed, states are the laboratories of democracy. The federal government should concentrate on shutting down meth labs -- not the laboratories of democracy. The people of Colorado and Washington voted to implement these laws, and the federal government should respect their will. States have a right to determine their own possession laws," said Rep. Steven Cohen (D-TN) in a Tuesday statement.

"If the people of Colorado and Washington want to legalize small amounts of marijuana, that is their decision. It is arrogant of these former DEA chiefs to encourage the President to nullify these laws," Cohen continued. "The fact that these former DEA chiefs are so focused on marijuana possession is why we have lost the war on drugs. The war should be on heroin, meth, crack, cocaine and unauthorized use of prescription drugs -- not marijuana possession."

[Ed: We don't think war on those other drugs is a good thing either -- to the extent at least that "war" means arresting and incarcerating people. Not that we want underground meth labs all over the place. But meth is going to be supplied by someone in some way, despite enforcement efforts, so long as there are people who want to use it. We're losing the "war on drugs" because it is prohibition based, and prohibition doesn't work. The government's focus on marijuana enforcement only highlights the sheer senseless of it all. -DB]

"The former DEA chiefs' statement can best be seen as a self-interested plea to validate the costly and failed policies they championed but that Americans are now rejecting at the ballot box," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "They obviously find it hard to admit that -- at least with respect to marijuana -- their legacy will be much the same as a previous generation of agents who once worked for the federal Bureau of Prohibition enforcing the nation’s alcohol prohibition laws."

"The war on drugs has been a failure by every measure," said Neill Franklin, the executive director of Law Enforcement Against Prohibition. "After more than a trillion dollars spent over the last forty years, we have nothing to show for it except more violence on our streets, the fracturing of community trust in the police and overflowing prison populations. Still, use has not significantly declined. It's unfortunate the DEA heads can't admit this failure. As someone who gave three decades of his life fighting this 'war' on the ground, I can tell you that from that perspective, this policy was dead on arrival."

"It is not surprising that these ex-heads of the marijuana prohibition industry are taking action to maintain the policies that kept them and their colleagues in business for so long," said Mason Tvert, communications director for the Marijuana Policy Project and an official proponent of the Colorado initiative. "Their desire to keep marijuana sales in an underground market favors the drug cartels, whereas the laws approved in Colorado and Washington favor legitimate, tax-paying businesses. Marijuana prohibition has failed, and voters are ready to move on and adopt a more sensible approach. It's time for these former marijuana prohibitionists to move on too."

As for INCB, it essentially plays the role of toothless nag, said Eric Sterling, the executive director of the Criminal Justice Policy Foundation. It is mandated by the United Nations to report on adherence to global anti-drug treaties, but has only the power to hector, not to enforce.

"The INCB has no power other than to issue reports," he said. "It can't issue indictments, it can't call for a resolution in some other body to condemn a nation. It's strictly hortatory, and for many years, it's bordered on the preposterous in the condemnations it's made. The INCB thinks that nations ought to suppress music or motion pictures or books that 'send the wrong message' about drugs. In that sense, it is completely out of step with Western Civilization. They would reject art and music and probably science if it were contrary to their abstinence focus on drug use."

Not only is the INCB relatively powerless, it is largely irrelevant, Sterling said.

"In our American drug policy, they have only negligible influence," he said. "I don't think that in any state capital, the INCB's comments carry any political weight. I don't think in most journals of opinion, their observations are important. Whether their comments have significance in other countries would be harder for me to assess. I tend to believe they are not that important," he said.

"Most people don't even know what it is or what its power is or what it said, including most members of Congress and their staffs," Sterling continued. "The INCB is obscure. Maybe some former DEA administrators might want to refer to them in a press release, but nobody else is going to pay any attention."

The forces of opposition to marijuana legalization are lining up to put pressure on the Obama administration. It shouldn't listen to them, said DPA's Nadelmann.

"President Obama and Attorney General Holder really need to allow Washington and Colorado officials to implement the new laws in ways that protect public safety and health while respecting the will of those states’ voters," he said. "At this point, insisting on blind obeisance to strict interpretation of federal drug laws will only serve the interests of criminals who want to keep this industry underground and law enforcement officials who want to justify their legacy."

And the wait for clarity from Washington continues...

Bipartisan Hemp, Medical Marijuana Bills Introduced in Congress [FEATURE]

It's a marijuana policy trifecta on Capitol Hill now: recreational marijuana, medical marijuana, and hemp. Earlier this month, reformist House members filed bills to end federal pot prohibition and tax the trade and last week to legalize hemp. Now, some of those same legislators -- joined by more -- have filed bills that would protect medical marijuana patients and providers and some senators have filed their companion bill to legalize industrial hemp.

Kentucky Republicans McConnell and Paul are supporting hemp legislation in the Senate
Phase II took place Thursday, when Rep. Earl Blumenauer (D-OR), sponsor of the above-mentioned marijuana tax bill, rolled out House Resolution 689, the States' Medical Marijuana Protection Act; Rep. Sam Farr (D-CA) introduced House Resolution 710, the Truth in Trials Act; and Sen. Ron Wyden (D-OR) and three co-sponsors filed the Industrial Hemp Farming Act of 2013, the companion to House Resolution 525.

Blumenauer's bill would grant federal recognition to the use of medical marijuana and remove it from Schedule I of the Controlled Substances Act. Regulating medical marijuana would be left to the states, and people complying with state medical marijuana laws would be exempt from federal arrest and prosecution.

It was introduced with bipartisan co-sponsorship, including Reps. Steve Cohen (D-TN), Sam Farr (D-CA), Raul Grijalva (D-AZ), Alcee Hastings (D-FL), Michael Honda (D-CA), Jared Huffman (D-CA) ), Barbara Lee (D-CA), James Moran (D-VA), Jerrold Nadler (D-NY), Jared Polis (D-CO), and Dana Rohrabacher (R-CA).

"The States' Medical Marijuana Patient Protection Act will allow medical marijuana patients and businesses -- who are complying with state law -- the ability to access and distribute marijuana free from federal interference," Blumenauer said. "Nineteen jurisdictions have passed laws recognizing the importance of providing access to medical marijuana for the hundreds of thousands of patients who rely on it. It is time for the federal government to respect these decisions, and stop inhibiting safe access."

"There is a plethora of scientific evidence establishing marijuana’s medical safety and efficacy and public polling for marijuana law reform is skyrocketing," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance. "However, when it comes to marijuana and the federal government, old fashioned politics routinely trumps modern science. The States' Medical Marijuana Patient Protection Act offers us hope we will see significant change with its passage. Congress should move swiftly to acknowledge what patients, doctors, researchers and scientists have been telling us for years: marijuana has therapeutic and medicinal benefits," said Tyler.

Farr's Truth in Trials Act is an attempt to restore fairness in federal medical marijuana prosecutions. Because the federal government refuses to recognize marijuana as anything other than a proscribed controlled substance, medical marijuana defendants and their attorneys are barred from even mentioning it or their state laws allowing its use in federal court. That has repeatedly resulted in state law-abiding medical marijuana growers and providers being convicted as drug dealers in federal courts, and sentenced accordingly.

Similar legislation has been introduced in previous years, but made little progress. Now, however, as the Obama administration keeps up the pressure on medical marijuana providers and in the wake of November's election results, supporters hope the bill can gain some traction.

This year's bill is cosponsored by Reps. Earl Blumenauer (D-OR), Steve Cohen (D-TN), Raul Grijalva (D-AZ), Barbara Lee (D-CA), James Moran (D-VA), Chellie Pingree (D-ME), Jared Polis (D-Co), Dana Rohrabacher (R-CA), and Henry Waxman (D-CA).

"The federal government for too long has denied due process to defendants who can demonstrate that they were using medical marijuana legally under local or state law," Farr said. "This bill would ensure that all the evidence is heard in a case and not just the evidence that favors conviction."

"Congress has the opportunity to establish a sensible public health policy on medical marijuana, and do what the Obama Administration has been afraid or unwilling to do," said Steph Sherer, executive director of Americans for Safe Access (ASA), which has been working with members of Congress to advance this legislation. "Patient advocates intend to push Congress to take heed of the abundant scientific evidence showing marijuana's medical value, and act in accordance with the overwhelming popular support this issue receives."

ASA is holding its first ever National Medical Cannabis Unity Conference this month in Washington, in part to do a big lobbying push for the bills. Attendees will convene in Washington on Friday, with the four-day conference culminating with a press conference and lobby day on Capitol Hill on Monday.

And then there was hemp. With Sen. Wyden's introduction of a Senate bill, there are now hemp bills in both houses. In addition to Wyden and Democratic and fellow Oregonian Sen. Jeff Merkley (D), the Senate hemp bill has the support of Sens. Rand Paul (R-KY) and Senate party leader Mitch McConnell (R-KY), both of whom have also endorsed hemp legislation back home in Kentucky.

"I am proud to introduce legislation with my friend Rand Paul and Senate colleagues, that will allow Kentucky farmers to harness the economic potential that industrial hemp can provide," McConnell said. "During these tough economic times, this legislation has the potential to create jobs and provide a boost to Kentucky's economy and to our farmers and their families."

"The Industrial Hemp Farming Act paves the way to creating jobs across the country -- from Kentucky to Oregon and everywhere else," Paul said. "Allowing American farmers to cultivate industrial hemp and benefit from its many uses will boost our states' economies and bring much-needed jobs in the agriculture community."

The House version of the bill was introduced earlier by Rep. Thomas Massie (R-KY) and has 28 cosponsors: Reps. Justin Amash (R-MI), Dan Benishek (R-MI), Earl Blumenauer (D-OR), Suzanne Bonamici (D-OR), John Campbell (R-CA), Lacy Clay (D-MO), Steve Cohen (D-TN), Peter DeFazio (D-OR), Keith Ellison (D-MN), Sam Farr (D-CA), Raul Grijalva (D-AZ), Richard Hanna (D-NY), Barbara Lee (D-CA), Tom McClintock (R-CA), Jim McDermott (D-WA), George Miller (D-CA), James Moran (D-VA), Jerrold Nadler (D-NY), Eleanor Norton (D-DC), Collin Peterson (D-MN), Chellie Pingree (D-ME), Mark Pocan (D-WI), Jared Polis (D-CO), Dana Rohrabacher (R-CA), Jan Schakowsky (D-IL), Kurt Schrader (D-OR), John Yarmuth (D-KY), and Ted Yoho (R-FL).

The hemp bills would remove federal restrictions on the domestic cultivation of industrial hemp. Specifically, the bill would remove hemp from the Schedule I controlled substance list under the Controlled Substances Act of 1970, and would define it as a non-drug so long as it contained less than 0.3 percent tetrahydrocannabinol (THC).

Eight states, including Oregon, have already passed bills providing for legal hemp production, but action in those states is on hold because the DEA refuses to recognize any difference between hemp and marijuana. That means US hemp product manufacturers must import hemp from countries that do recognize the difference between hemp and marijuana.

"Unfortunately, there are some dumb regulations that are hurting economic growth and job creation, and the ban on growing industrial hemp is certainly among them," Wyden said. "The opportunities for American farmers and businesses are obvious here. It's time to boost revenues for farmers and reduce the costs for the businesses around the country that use hemp."

Congress now has a full-blown marijuana agenda on its plate, from pot legalization to industrial hemp to medical marijuana, if it chooses to address it. And, given the overlapping cosponsorships on the various bills, it now appears to have developed a cannabis caucus. We've already come a long way from the days when it was all up to Barney Frank and Ron Paul, and they've just been gone a few weeks.

Washington, DC
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

Federal Marijuana Reform Bills Introduced [FEATURE]

Two Democratic congressmen announced Tuesday that they are introducing legislation to reform federal marijuana policy. In a joint press conference that also included representatives of drug reform groups, Reps. Earl Blumenauer (D-OR) and Jared Polis (D-CO) announced two separate bills aimed at addressing the looming clash between intransigent federal marijuana policies and states that have or likely will legalize marijuana. And more bills are pending, they said.

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Earl Blumenauer and Jared Polis
Blumenauer and Polis also released a report entitled "The Path Forward: Rethinking Federal Marijuana Policy," which outlines their perspective on marijuana policy and provides some background on regulation and opportunities for action. The congressmen have also established the Sensible Drug Policy Working Group, which will provide a forum for members of Congress who are working on related issues and hope to advance legislation.

Polis's Ending Federal Marijuana Prohibition Act would remove the DEA's authority over marijuana, end federal marijuana prohibition, and leave it to the states to decide whether to prohibit marijuana or not. Blumenauer's Marijuana Tax Equity Act, House Bill 501, would create a federal excise tax on marijuana similar to those imposed on alcohol and tobacco. Taken together, the two bills would provide for a system of marijuana regulation and taxation in states where it is legal.

More specifically, Polis's bill would:

  • Remove marijuana from the Controlled Substances Act;
  • Transfer the Drug Enforcement Administration’s authority to regulate marijuana to a newly renamed Bureau of Alcohol, Tobacco, Marijuana and Firearms, which will be tasked with regulating marijuana as it currently does alcohol;
  • Require marijuana producers to purchase a permit, as commercial alcohol producers do, of which the proceeds would offset the cost of federal oversight; and
  • Ensure federal law distinguishes between individuals who grow marijuana for personal use and those involved in commercial sale and distribution.

Blumenauer's bill would:

  • Impose a 50% excise tax on the first sale of marijuana, from the producer to the next stage of production, usually the processor;
  • Impose an occupational tax similar to those in the tobacco and alcohol industries on those operating in marijuana, with producers, importers and manufacturers facing an occupation tax of $1,000 per year and any other person engaged in the business facing an annual tax of $500 per year;
  • Impose civil penalties for failure to comply with taxing duties. Criminal penalties will be assessed for intentional efforts to defraud the taxing authorities; and
  • Require the IRS to produce a study of the industry after two years, and every five years after that, and to issue recommendations to Congress to continue improving the administration of the tax.

The time has come for marijuana law reform at the federal level, the two congressmen said.

"There has been an enormous evolution of American opinion on marijuana. Americans are sick and tired of the costs of marijuana prohibition, whether it’s the financial costs or the human costs. Americans are saying enough is enough, let's try a new policy. We need to address drug use as a public health issue, not a criminal justice one," said Polis.

"My bill doesn't affect the legal status of marijuana where it is currently illegal," the Colorado congressman explained, "but it does allow states that have created either a legalized and regulated scheme for sales or that have medical marijuana laws to operate, without the constant fear that the federal government and the DEA and the other agencies will prosecute patients or businesses that are fully legal under state law. This is an idea whose time has come."

"Forty years ago, as a freshman member of the Oregon legislature, I was able to vote to make Oregon the first state to decriminalize the possession of small amounts of marijuana," said Blumenauer. "Since then, 14 states have joined Oregon, and after California legalized medical marijuana in 1996, we now have 19 jurisdictions that have authorized it, and we now have the first two states that have legalized marijuana for recreational use."

The Oregon congressman added that he and Polis are working with a bipartisan group of representatives and that up to eight or 10 marijuana reform bills could be introduced this session.

"We're looking at antiquated and sometimes nonsensical federal laws and policies to try to get us on a path that is less expensive, more productive, more fair, and more in tune with where America is going," Blumenauer said. "We arrested two-thirds of a million people in 2011 for a substance most people think should be legal. The president said he has bigger fish to fry, but there are still people further down the federal food chain frying those fish."

"This is a very exciting day," said Bill Piper, director of national affairs for the Drug Policy Alliance. "Last November, voters in Colorado and Washington made history, and the polling shows that a majority of Americans now support legalizing marijuana. There is no doubt more states will legalize in the years to come. This is the beginning of the end of marijuana prohibition."

"We were a primary backer of Amendment 64 in Colorado, which directed the state to regulate marijuana in a manner similar to alcohol," said Steve Fox, director of government relations for the Marijuana Policy Project. "That's how we believe it should be treated, and we look forward to working with Reps. Polis and Blumenauer to see that this legislation is eventually passed by Congress."

If not this year, then soon, the congressmen said.

"There is growing support for this bill," Polis argued. "There has really been a sea change; we saw test votes in the last Congress for defunding the DEA and other things, and saw very strong support, and that will only increase over time. Congress is frequently a lagging indicator for public opinion; it’s a question of Congress catching up."

"This is the beginning, not the end," said Blumenauer. "My bill is a first step and we anticipate some give and take, but this will be gaining momentum.  We've got legislation here today to get the ball rolling, but there will be more that you will be hearing about in the days ahead."

"It's clear that we've reached a tipping point," said Piper. "Major changes are going to happen and are happening now. The American people are demanding reform, and members of Congress are starting to give it to them."

Washington, DC
United States

Caswell Motel Case Marks a Victory Against Federal Forfeiture Abuse [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

In a major victory for property rights advocates, a federal judge in Massachusetts last week struck down a scheme by federal prosecutors to seize a motel owned by the Caswell family on rundown Main Street in Tewksbury. The ruling in US v. 434 Main Street, Tewksbury, Massachusetts should make it more difficult for the government to seize a person's property if third parties committed criminal offenses on that property without the property owner's knowledge.

The ruling reinforced longstanding complaints that the use of asset forfeiture statutes -- both federal and state -- is so broad as to be tantamount to an abuse of power. Under such laws, prosecutors file civil actions seeking to seize the property of accused criminals as the fruits of crime, but they often result in citizens being deprived of their property without ever being convicted of a crime, sometimes even without ever having been arrested.

"People better wake up to what's going on with the government taking property under this federal civil forfeiture law," said Russ Caswell, 69, longtime owner of the Caswell Motel. "I was never charged with a crime and I never participated in no drug crimes on my property," he told the Chronicle Sunday. "Neither did the police tell me that my business was a problem, plus we often reported to police about criminal activity on the premises, but they still tried to take my property. I am thankful to God and my attorneys that this nightmare is over."

The Caswell Motel isn't the Hilton -- like countless thousands of other low-end motels on gritty streets across the country, it offers rooms by the week, and its clientele includes itinerant construction workers, traveling salesmen, the just-up-from-homeless, and, yes, the occasional drug user or peddler.

US Attorney Carmen Ortiz had sought to seize the Motel Caswell from the Caswell family under the theory that the motel allegedly facilitated drug crimes. The government provided evidence of 15 drug-related incidents between 1994 and 2008, rousing US Magistrate Judith Dein to note tartly in her opinion that "it should be noted that during this 14 year period, the Motel Caswell rented out approximately 196,000 rooms."

Dein found that Caswell "did not know the guests involved in the drug crimes, did not know of their anticipated criminal behavior at the time they registered as guests, and did not know of the drug crimes while they were occurring."

The government argued that the Caswells had failed to cooperate with police to alleviate drug problems at the property, but Dein cited numerous examples of the motel's cooperation with Tewksbury Police, and also noted that "there is no contention in this case that anyone from the Caswell family has been involved in any criminal activity either at the Motel or elsewhere. It is undisputed that they are a law-abiding family. Mr. Caswell testified that he had never been charged with any crime in his life."

Then Dein blistered the prosecution.

"It is rather remarkable," she wrote, "in this court's view, for the Government to argue in this case that the Property owner should lose his property for failure to undertake some undefined steps in an effort to prevent crime, while putting on evidence that the police drove through the Property routinely, knew the Property owner's identity and that he lived next door to the Motel, and never contacted him in an effort to work together to control crime at the Property. No comparable cases have been cited by the parties, and none have been found. Having failed to notify Mr. Caswell that he had a significant problem, and having failed to take any steps to advise him on what to do, the Government's resolution of the crime problem should not be to simply take his Property."

The federal magistrate then flatly dismissed the government's case. "The Government has failed to meet its burden of establishing that the Motel is subject to forfeiture," Dein found. "In addition, this Court concludes that the Claimant has met his burden of proving that he is the innocent owner of the Property."

Attorneys and asset forfeiture critics applauded the decision. Darpana Sheth, a Virginia-based pro-bono attorney who assisted with the defense of the Caswell Motel called the verdict "very important" and said it could have wider implications if other judicial districts and lawyers pick up on it.

"This decision will make it tougher for the government to initiate forfeiture proceedings or file complaints based on the actions of third parties," she said.

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Scott Bullock (ij.org)
"This is a complete victory for the Caswell family and for the protection of private property rights," said attorney Scott Bullock, after Dein's ruling. Bullock, who represented the family, is a senior attorney for the Institute for Justice (IJ), a Virginia-based public interest law firm specializing in fighting federal and state forfeiture abuse nationwide.

Caswell definitely needed the Institute's help, his family's limited resources having been eaten up in earlier stages of their battle with a relentless federal prosecutor.
 

"After running out of money after spending over $100,000, my local attorney discovered the Institute for Justice on the Internet," said Caswell."Had it not been for the Institute representing me pro-bono, I would have lost the motel and my livelihood."

While the Institute is a bulwark of the fight against asset forfeiture abuses, it is perhaps best known for its David vs. Goliath victory over billionaire Donald Trump in an Atlantic City eminent domain case in the 1990s. In that case, the Institute successfully represented a property owner whose land Trump wanted for a parking lot for his casino and hotel, blocking Trump's plan and saving the property.

The Caswell Motel case also opened a window on unsavory practices around asset forfeiture and raised questions of "policing for profit." Although Caswell attorneys argued -- and the court agreed -- that the family had cooperated with police to alleviate the drug problem, someone tipped the DEA to a potential target. The property had an estimated value of between $1.5 million and $1.8 million. Through the federal asset forfeiture "Equitable Sharing Program," state and local law enforcement agencies involved would have received 80% of the value of the Caswell property, with the feds reaping the other 20%.

"What the government did amounted to a grab for quick cash under the guise of civil forfeiture," said attorney Larry Salzman, another IJ attorney.

The workings of the asset forfeiture machine were partially revealed in the deposition of Vincent Kelly, DEA Special Agent in the New England office asset forfeiture unit. He testified under oath that his job was to look for high-dollar property with no mortgage to be forfeited. Kelly explained clearly how he checked the Registry of Deeds "to find out who owns the property and how much equity is on the property." Then, the DEA would contact local police to see how many drug arrests or other serious crimes been committed on the property.

Kelly said it was DEA policy to deal only with property worth at least $50,000.00. With Caswell Motel's worth between $1.5 and $1.8 million dollars, it was ripe for forfeiture since many drug arrests had occurred there.

In another sign that the motel had been the target of selective prosecution, defense attorneys and the Lowell Sun also uncovered evidence that at one point, narcotic officers and police made more arrests on the premises of Walmart, IHop, and Home Depot, nearby businesses also located off I-95 on Main Street. From 2010-2012, the attorneys said 19 drug arrests were made at Caswell Motel, with 24 drug arrests on Walmart's premises, 14 at Home Depot and five each at Applebee's and Burger King. But those are all deep-pocketed corporations with legions of lawyers; the Caswell family and its motel was not.

The Caswell Motel case is only an especially egregious example of asset forfeiture abuses. For years, attorneys, community activists, and advocacy groups, such as Forfeiture Endangers Americans Rights (FEAR) and Americans for Forfeiture Reform have been fighting to reign in such prosecutorial misconduct, and some progress has been made.

Some states implemented higher burdens of proof for police to seize property or acted to reduce the incentive to police for profit by directing that all or some seized funds go to the state general fund or education fund -- not straight into police coffers. And some states require an actual conviction before civil asset forfeiture can proceed.

But facing increasingly tougher standards and regulations, state and local law enforcement have learned to hand their cases over to the feds, ensuring that the cops get their cut under the equitable sharing program, but in effect robbing state governments of funds that should have gone to them. According to a Cato Institute study, as of 2008, the Justice Department's forfeiture fund reached $3.1 billion, with less than 20% of property seized coming from cases where the owners were prosecuted.

At the federal level, things are a bit better than they used to be, but it clear that room for abuse still exists, as the Caswell case demonstrates. Prior to federal asset forfeiture reform legislation passed in 2000, seizures could be made on mere suspicion that the property was involved in a crime. Once that happened, the property owner had to prove by a "preponderance of evidence" that the property was not involved in a crime.

Ironically, it was the attempted seizure of another motel, the Red Carpet Inn in Houston, Texas, that helped lead the way to passage of the Civil Asset Forfeiture Reform Act of 2000. In that case, the feds seized the motel in 1998, claiming it was a "drug haven."

Like Caswell, Red Carpet owner Jason Brice had complied with police by hiring security and allowing police to patrol his property, and had spent thousands of dollars to comply with law enforcement demands that the motel discourage drug dealing. But when Brice balked at raising room rates and then revoked permission for police to patrol the property, the feds moved in with a civil forfeiture claim. Brice won in court, but only after years of stress and hundreds of thousands of dollars in attorneys' fees.

Led by then Rep. Henry Hyde (R-IL) and inspired by cases like that of the Red Carpet Inn, Congress finally acted in 2000, passing the first effort to rein in asset forfeiture abuse at the federal level. The reforms include the "innocent owner" defense that Caswell successfully used in its trial.

But the civil asset forfeiture machine that grew out of Ronald Reagan's 1980s drug war keeps on humming. When the Department of Justice's Asset Forfeiture Fund to split seized goods with local and state law enforcement started in 1986, it took in $93.7 million. Last year, it took in $1.5 billion. That is a real and continuing incentive to pervert policing in pursuit of profits.

"It's like stealing your property in a hold-up without a gun," summed up Russ Caswell. "It goes back to our founding fathers. What happened to me was so un-American."

Someone needs to tell US Attorney Ortiz, who has not yet given up the fight for the Caswell Motel. On Tuesday, her office said "we are weighing our options with respect to appeal." They have until March 15 to file, and until then, Russ Caswell and his motel still aren't in the clear.

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