Search and Seizure

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Redefining the English Language to Fight the Drug War

http://stopthedrugwar.org/files/scalesofjustice.jpg
The tendency of the courts to trash our privacy rights in a pathetic attempt to prevent marijuana smoking is so routine that I seldom bother even to point it out anymore, but something about this case bugged me just enough to slap it around for a second.

FAIRBANKS, Alaska -- The federal government can obtain suspected marijuana growers' utility records without a warrant.

The 9th Circuit Court of Appeals on Tuesday ruled in the case of a Fairbanks utility, Golden Valley Electric Association, which refused turning over records to the U.S. Drug Enforcement Administration.

GVEA argued the Fourth Amendment protects customers from search and seizure without a proper warrant.

But the appeals court ruled a customer lacks an expectation of privacy in an item, like a business record. [SacBee.com]

Doesn't that just sound silly? In fairness, I've studied enough law to know that the legal definition of a term like "expectation of privacy" is always slowly evolving and doesn't necessarily mean what a random person would think it to mean. But come the hell on. Once we reach point where they're telling us with a straight face that we have no "expectation of privacy" with regards to our business records, well, that's just too stupid for school.

Unfortunately, it's really rather consistent with how the courts treat our privacy rights, and the decision of how much privacy we can reasonably expect is not ours to make. Courts have consistently ruled, for example, that information you share with a third party carries no expectation of privacy because you're assuming the risk that someone will turn that information over to the government. I disagree.

Rather obviously, we wouldn't have to worry about the government obtaining our information from third parties if the government hadn't granted itself the authority to collect said information and then introduce it as evidence against us in court. I wouldn't have to worry about third parties carelessly disclosing my private information if such information were legally inadmissible as it ought to be.

When I hear the term "expectation of privacy" I think of the physical boundaries that separate public from private. I don't expect privacy with regards to my purchases at the grocery store, or the content of a conversation on a crowded street. It's well understood that any crime committed in "plain view" is fair game for police, even if they have to use binoculars to get a good view. I even sort of sympathize with allowing police to search your trash, since you left it outside where anyone could walk off with it.

But anyone can't just walk off with my utility bills. Stealing mail is a crime, after all. To say that I have no expectation of privacy with regards to that information is preposterous. Yes, the utility company could give my information to the police, but so could a neighbor who steals my mail. Either way, I'm getting screwed by somebody and it's not my fault for expecting privacy.

Narc Scandal Front and Center in Florida Sheriff Race [FEATURE]

Scandal has been brewing in the Pinellas County, Florida, Sheriff's Office over the possibly criminal misbehavior of some of its narcotics detectives, and Sheriff Bob Gualtieri, a Republican, has been trying to keep it from spinning out of control. But with his job on the line in November, his challengers, Republicans and Democrats alike, are making the scandal -- and the department's emphasis on busting marijuana grows -- issues with which to wound him in the campaign.

Narcotics deputies went above and beyond in their efforts to bust indoor marijuana grows (wikimedia.org)
Pinellas County sits on Florida's Gulf Coast and includes the city of St. Petersburg. For the last few years, it has been an epicenter of the state's prescription opioid epidemic, but despite the county leading the state in Oxycontin overdose deaths, some Pinellas County narcs were more interested in pot growers than pill mill merchants.[Editor's Note: At least one candidate for sheriff is challenging the conventional law enforcement narrative regarding opioid pain medications; see Scott Swope's comments on the topic at the end of this article.]

It all began when narcotics detectives with the sheriff's office hit on the bright idea of spying on a legal business -- a Largo hydroponics grow shop -- and taking down the license plate numbers of customers, and then snooping around to see what they could find. At least four detectives were involved in surveillance that apparently crossed the line into illegality by trespassing on private property without a warrant, by disguising themselves as utility company workers, and by subsequently falsifying search warrant affidavits (they would claim to have smelled marijuana from the street, when they had actually trespassed to find evidence).

They would have gotten away with it if not for tenacious defense attorneys. But things began to unravel last year, when the attorney for Allen Underwood, who had been arrested in a grow-op bust, filed a complaint saying that Underwood's surveillance cameras had recorded one of the detectives hopping over his fence. The detective ordered the surveillance video deleted, and the sheriff's office found no evidence of wrongdoing by its man.

Next, Largo defense attorney John Trevena charged in a case that one of the detectives had donned a Progress Energy shirt and cap to gain warrantless access to a private property. The detective first denied it under oath, then admitted it. At the time, Gualtieri attributed the deception to "over-exuberance" by a young detective.

Then, in February, Tarpon Springs attorney Newt Hudson questioned one of the detectives under oath about whether he ever saw his dope squad colleagues trespass. Under questioning, the detective admitted that he and one of the other detectives had once broken down a fence to enter a yard of interest.

"That was the game changer," Sheriff Gualtieri told the Tampa Bay Times last month as he announced he was launching a criminal investigation of the four detectives. "Misconduct will not be tolerated and we will hold accountable any member of the Pinellas County Sheriff's Office who acts contrary to the law," Gualtieri said. "The ends never justify the means."

Embattled Sheriff Bob Gualtieri (bobforsheriff.com)
Three of the detectives have resigned, and Gualtieri fired the fourth, but it might be too late to undo the damage to local law enforcement and to Gualtieri's own political prospects. At least 18 pending marijuana grow prosecutions have been halted, and Gualtieri and Chief Assistant State Attorney Bruce Bartlett said they also will review charges against about two dozen other defendants who previously pleaded guilty, were convicted or accepted plea bargains.

And Gualtieri has been repeatedly pummeled by challengers over the scandal. Not only the sole Democrat in the race, Palm Harbor attorney Scott Swope, but Gualtieri's Republican challengers, most notably former Sheriff Everett Rice, have criticized his handling of the affair. The Republican primary, which Gualtieri hopes to survive, is set for August 14.

"They shouldn't have been investigating the store to begin with," Swope told the Chronicle. "As far as criminal activity is concerned, we have bigger fish to fry than trying to catch people who are purchasing grow lamps. It was absolutely ridiculous."

Especially given that the sheriff's office had had to cut $100 million from its budget and eliminate 600 positions, including the cold case unit and sexual predator tracking, Swope said, alluding to the severe financial straits in which the department and the county found themselves.

"When I'm at a campaign presentation and tell people that they had detectives for surveilling this business selling legal equipment, but not for human trafficking or cold cases, everyone hears that and goes 'wow,'" Swope said. "It's an argument that has some traction."

Swope also criticized the leisurely pace of Gualtieri's internal investigation.

"The internal investigation took way too long," said Swope. "When you have an assertion that one of your detectives is trespassing to obtain evidence, falsifying ID to obtain evidence, falsifying affidavits, then destroying evidence, that needs to take precedence over every other internal investigation, and it didn't. When Gualtieri first went on the record, he said he didn't believe it; he just dismissed it, at least initially."

For Rice, who served as sheriff for 16 years until 2004, the pot grow scandal was an indication of misplaced priorities in Gualtieri's department.

"How is it that Pinellas and Pasco County became the pill-mill capital of the world in the last three or four years," Rice asked at a candidates' forum this spring, "and meanwhile we're spying on people who have hydroponic materials?"

Rice was still on the attack last month, telling the Tampa Bay Times that problems in the department are not limited to the pot grow scandal, but also include reports of slipshod internal investigations, narcotics sergeants claiming pay while monitoring detectives from home, and possible thefts.

"The question is,'' said Rice, "how did that culture come about in the first place? I think people realize that a Sheriff Rice wouldn't put up with such things,'' Rice said.

Except that he did. During his time in office, one of Rice's narcotics detectives gathered evidence of a pot grow illegally and lied about it under oath. He also fabricated evidence for a search warrant by calling in his own "anonymous tip." In another case, deputies used an informant to get a search warrant without revealing that the informant's wife was having an affair with the suspect. Pinellas judges tossed a number of pot grow cases over police misconduct during Rice's reign, and one detective was prosecuted for perjury.

One of the cases tossed was against Randy Heine, a Pinellas Park smoke shop owner. In that 1997 bust, deputies raided Heine's home and seized two pounds of pot, but a judge threw out the case, finding that deputies had resorted to "gross, material misrepresentation of the facts'' in their search warrant application.

Heine, a perennial gadfly on the local scene, has also become a harsh critic of Pinellas-style drug law enforcement. He was briefly a candidate in the sheriff's face before dropping out after failing to pay a filing fee. That leaves Swope, Gualtieri, and Rice.

Democratic challenger Scott Swope (swopeforsheriff.com)
For Swope, Gualtieri and Rice are birds of a feather -- traditional lawmen who don't think twice about the futility and expense of continuing to fight the war on marijuana. He offers a different vision, one that includes marijuana decriminalization and, eventually, legalization and regulation.

"Florida should go the way of more than a dozen other states and decriminalize," he said. "Then the sheriff's office wouldn’t have to expend limited resources trying to catch people in possession of small amounts. That would make it so those young people don't have a criminal record, they're still eligible for student loans, they can get jobs. It's a bit of a shocker for some of my audiences, but when you think about it, it makes perfect sense to save tax dollars by not investigating and prosecuting possession of small amounts."

A marijuana bust of 20 grams or less is a misdemeanor in Florida, but it means a trip to jail, booking, and waiting to get bonded out. It also uses up law enforcement man-hours during arrest, booking, detention, and prosecution. Florida should and will decriminalize eventually, Swope said, but he wouldn't wait for the legislature to act if elected.

"As sheriff, I can't tell the legislature what to do, but I would have some influence over the county commission. I could lobby them to enact an ordinance making possession of less than 20 grams an ordinance violation," he explained. "That way, instead of deputies having to arrest people and put them in the criminal justice system, they could just issue an ordinance violation ticket, and the fines would go to Pinellas County.

Swope was philosophically open to legal, regulated marijuana sales, but wasn't pushing it as a campaign position. First things first, he said.

"From the perspective of this campaign, the majority of the population believes medical marijuana should be legal, and I do, too," he explained. "Decriminalization and regulation similar to alcohol and cigarettes, well, that's a bit more of a progressive position. I think it's going to be a two-step process: Make medical marijuana legal, and after enough time, and people realize these folks aren't committing crimes, then it's time for step two."

Swope also had an interesting perspective on the pain pill and pill mill issue.

"Pinellas County had a very serious problem with pain pills, we led the state four straight years in Oxycontin deaths, and it's still a serious problem, but unfortunately, when they really ramp up the pain pill mill enforcement, the pendulum can swing too far the other way," he noted. "There is a potentially serious negative impact on doctors and pharmacies trying to help people who need the help. If Florida were a little more progressive and had a medical marijuana law, perhaps many could treat themselves with that instead of narcotics."

The one-time deputy's drug war positions are winning him support outside of traditional Democratic constituencies, including Libertarian Party figures ranging from county stalwarts to presidential nominee Gary Johnson.

"I have the endorsement of the Libertarian Party here, and that has some of the Democrats scratching their heads. I just explain that I'm a lawyer familiar with the Constitution, I'm progressive-thinking and understand and appreciate the value of personal liberty and what the Constitution means and I will make damned sure the sheriff's office abides by the Constitution."

Pinellas County has 3,000 more registered Democrats than Republicans, but most county offices, including the sheriff's, have been in Republican hands for decades. A victory for Democratic challenger Scott Swope in November would not only break the GOP's stranglehold on elected office in Pinellas, it could also bring a fresh new perspective to Florida law enforcement.

Meanwhile, Sheriff Gualtieri has just unleashed an offensive against "fake pot."

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

St. Petersburg, FL
United States

Nevada Drug Dog Troopers Allege Official Misconduct

A group of Nevada Highway Patrol troopers and a retired police sergeant have filed a lawsuit against the Patrol and the Las Vegas Metro Police charging them with racketeering and corruption. The charges center on the department's training and use of drug-sniffing dogs.

Drug sniffing dogs can be trained to alert on cue. (US Navy)
The troopers' complaint opens a most unflattering window on personal bickering, bureaucratic infighting, and unethical behavior among state law enforcement officials, as well as alleging unconstitutional policing practices, including unlawful searches and seizures and training drug dogs to learn "cues" about when to signal they have found drugs.

The complaint centers on what the troopers say was the intentional effort of Nevada Highway Patrol Commander Chris Perry to undermine the drug dog program after it was approved by then Gov. Jim Gibbons and retaliation against drug dog-handling troopers by Perry and his underlings.

But it reveals patterns of racial profiling, unconstitutional searches and seizures, and enforcement driven by hopes of asset forfeiture (which, incidentally, funded the entire drug dog program). The suing troopers allege that other troopers and Las Vegas Metro Police narcotics officers would illegally poke and open packages at a Fedex processing center to make it easier for drug dogs to hit on them.

Equally seriously, the complaint alleges that some drug dogs were intentionally trained to provide false alerts that they had detected drugs by responding to cues from their handlers. Using a false drug dog alert as the basis for initiating a search is illegal.

The complaint accuses Perry and his underlings of violating the Racketeer Influence and Corrupt Organizaion (RICO) act by conspiring to use the improperly trained drug dogs to systematically conduct illegal searches and seizures for financial benefit.

None of the individuals or law enforcement organizations named in the lawsuit have yet publicly responded.

Las Vegas, NV
United States

NYPD Sued Over Stop and Frisk Marijuana Arrests

The Legal Aid Society in New York City announced last Friday that it had filed a lawsuit against the NYPD over its continuing practice of making misdemeanor marijuana possession arrests when they order suspects to empty their pockets during the department's controversial stop and frisk searches. Police Commissioner Raymond issued a memorandum last fall directing police not to make the arrests, but only to ticket pot possession offenders, but police continue to charge people with misdemeanors, according to the lawsuit.

"It's certainly a sad commentary that the commissioner can issue a directive that reads well on paper but on the street corners of the city doesn't exist," said Legal Aid's chief lawyer, Steven Banks.

Under New York state law, marijuana possession is decriminalized, but public possession remains a misdemeanor. In New York City, police order suspects to empty their pockets, then charge them with public possession if a baggie appears.

A call to modify the state's decriminalization law to include public possession as only a ticketable offense won broad support, including from Gov. Andrew Cuomo (D) and Mayor Michael Bloomberg (R), but was killed last week by Senate Republicans.

The lawsuit, filed in State Supreme Court in Manhattan, seeks a court order against the city and the NYPD declaring the practice illegal under state law and barring officers from making such arrests.

The Legal Aid Society filed the suit on behalf of five New Yorkers, all of whom were arrested since mid-April on misdemeanor possession charges after small amounts of pot were found on them during police stops. In each case, the marijuana became visible only after officers searched the men or asked them to empty their pockets.

"These five individuals are New Yorkers who were essentially victimized by unlawful police practices," Banks said. "The lawsuit is aimed at stopping a pernicious police practice, which is harming thousands of New Yorkers a year and clogging up the court system with one out of seven criminal cases and diverting resources and attention from more serious criminal matters."

One plaintiff, Juan Gomez-Garcia, said he was waiting for a food order outside a Kennedy Fried Chicken restaurant in the Bronx on May 16 when an officer approached, began to question him and asked if he had any drugs on him. Mr. Gomez-Garcia, 27, said that after he admitted to the officer that he had marijuana in his pocket, the officer reached inside the pocket and removed a plastic bag containing a small amount of the drug.

He was arrested and charged with "open to public view" possession for having marijuana "in his right hand." He spent about 12 hours in a jail cell and was let go after he pleaded guilty to a disorderly conduct violation, according to the lawsuit.

Because of the NYPD's massive stop-and-frisk program -- aimed overwhelmingly at young people of color -- and because of the department's willful misinterpretation of the law and refusal to follow Commissioner Kelly's directive, New York City is the nation's marijuana arrest capital. Around 50,000 people a year are charged with misdemeanor pot possession.

According to the Legal Aid Society, NYPD continues to arrest people for pot possession at about the same pace as ever. While arrests dipped below 3,000 in December, by March, the number of arrests had risen to 4,186, a number almost identical to the 4,189 arrests made last August, before Kelly issued his directive.

New York, NY
United States

Bill O'Reilly Opposes Marijuana Decrim Because it Might Reduce Racial Profiling

This week's exciting news that Gov. Cuomo and Mayor Bloomberg are backing an effort to end New York City's mindless marijuana arrest crusade didn't exactly result in a round of applause at the FOX News studios. Here's Bill O'Reilly babbling about it.

O'Reilly says the cops "know who the wise guys are," and they're only bothering people who deserve it. That sounds reassuring, oh, except for the fact that NYPD has already searched more young black men than they even have in the entire city. So yeah, they might be catching some of these "wise guys" as O'Reilly so eloquently describes them, but only because they're also searching every other young black man in the city. There is no clever strategy behind it. They're just searching all the black dudes. Stop trying to make it sound sophisticated, Bill.

But the real problem with O'Reilly's logic, and it also highlights the irony of whole ridiculous situation, is that there's no component in this new marijuana decriminalization proposal that would actually require police to stop constantly racially profiling everyone they see. That's not even what this is. 

Simple possession is already decriminalized in New York. The measure in question would simply downgrade the more serious charge of "possession in public view" so that racial profiling victims would no longer be charged with the public display of marijuana as a result of police ordering them to empty their pockets. The policy of police racially profiling people and illegally searching them remains intact under this plan. You just get off the hook if any pot is found during the course of police committing misconduct against you.

I'm still in favor of the reform – anything that might stop all these pot busts is great – but it's insane that they're actually going so far as to legalize "public display" of marijuana simply because they can't stop the cops from yanking pot out of people's pockets and then lying about it. New York's marijuana law wasn't really even the problem here and shouldn't actually need to be changed to prevent the racially abusive enforcement and prosecution scheme that's been going on in New York for the past decade.

These were false arrests to begin with and the most appropriate solution would be for police and prosecutors to stop systematically violating people's rights. But apparently that is more difficult than reducing the penalties for marijuana. Wow.

What If Police Say They Smell Marijuana?

One of the most common questions we get at Flex Your Rights is how to handle a situation in which police claim to smell marijuana. This can happen whether or not you actually have marijuana and police actually smell it, so it's a situation everyone should be prepared for. 

My latest YouTube video takes a look at this tricky question.

Warrantless Cell Phone Tracking Being Challenged in Courts, Senate [FEATURE]

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

In the wake of the US Supreme Court's January decision in United States v. Jones, in which the high court forbade the warrantless use of GPS tracking devices to surveil people's movements, law enforcement and the Obama administration are scrambling -- not to find ways to comply with the spirit of the ruling, but to find ways around it.

Police in many states have switched tactics by obtaining mobile data to zero in on someone's prior movement and by tracking them through their cell phones, usually without a warrant. Whenever a cell phone is used, it "pings" an electronic signal to the nearest cell phone tower, allowing law enforcement to use the cell phone to find or track people. And cell phones containing GPS devices, which are increasingly common, "ping" constantly.

In April, the  American Civil Liberties Union (ACLU) released an extensive study of state, federal, and local law enforcement's surveillance practices that illustrate how police track citizens through their cell phones. The findings were staggering. Warrantless cell phone tracking "has become a powerful and widely used surveillance tool for police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight," the report found.

After poring over 5,500 pages of records in responses from over 200 local law enforcement agencies, the ACLU researchers reported that "only a tiny minority" -- 10 agencies total -- had obtained a warrant before tracking someone through his or her cell phone.

"What we have learned is disturbing," said ACLU staff attorney Catherine Crump, who helped file public information requests with some 385 law enforcement agencies. "The government should have to get a warrant before tracking a cell phone. Instead, what we found was that the cops track people with no supervision, or in some cases, mostly drug cases, the cop will go to court and only show that it would be relevant to an investigation, which is a lower standard."

The ACLU is calling for law enforcement agencies to desist from using cell phone tracking without a warrant, and is calling on state and federal lawmakers to pass legislation requiring a warrant before police use location tracking in non-emergency situations.

A bill to address the problem is pending in Congress. Senate Bill 1212, the Geolocation Privacy and Surveillance (GPS) Act, is sponsored in the Senate by Senators Ron Wyden (D-OR) and Mark Kirk (R-IL). Companion legislation in the House, House Resolution 2168, is sponsored by Reps. Jason Chaffetz (R-UT), Peter Welch (D-VT) and Jim Sensenbrenner (R-WI.). The bills would require law enforcement agents to obtain a warrant in order to access location information.

Another Senate effort, Judiciary Committee chair Senator Patrick Leahy's (D-VT) Electronic Communications Privacy Act Amendments Act, Senate Bill 2011, offers a partial repair of the problem. It includes a warrant requirement for real-time tracking, but not for historical location information.

The Obama administration disagrees that any action is needed. At a State of the Mobile Net conference held in May, Justice Department Deputy Assistant Attorney Jason Weinstein argued, "[t]he need for such warrantless cell phone tracking is important so it won't cripple the government and law enforcement."

The administration's lawyers insist that when a person turns on a cell phone, the information from the phone is transmitted through a third-party, such as the wireless carrier, and the user thus has no "expectation of privacy."

Warrantless cell phone tracking "should be illegal," said Washington, DC, appellate attorney Stephan Leckar, who successfully represented DC nightclub owner Antoine Jones in the case cited above.

In that case, the Supreme Court reversed Jones' conviction and sentence of life without parole in a cocaine trafficking case after they found substantial evidence that the FBI placed a GPS device on Jones vehicle for 28 days without a search warrant. When police monitored Jones vehicle without a warrant, the court said, "This violated his Fourth Amendment right against unreasonable search and seizure."

According to Leckar, the "third-party" doctrine is a means for law enforcement to get around the Fourth Amendment. "As the law reads," he said, the 'third-party' doctrine doesn't violate the Fourth Amendment. To change this, people will have to petition Congress to change that doctrine."

http://stopthedrugwar.org/files/judge-lynn-hughes.jpg
Judge Lynn Hughes
While privacy advocates like the ACLU's Crump argue that cell phone users should get the same protections against warrantless tracking as people subjected to GPS devices being surreptitiously placed on their vehicles, the Justice Department disagrees.

"There is no trespass or physical intrusion on a citizen's cell phone when the government obtains historical cell-site records from a provider," Justice Department attorneys argued in a brief in an appeals court case in February, adding that cell phone data are not as precise as GPS tracking data.

Most, but not all, recent state and federal court decisions in major drug cases have upheld the right of police to either track cell phones or search them for evidence in an investigation. In March, the US 7th Circuit Court of Appeals upheld a warrantless search of a cell phone by Indiana police, a phone belonging to a  meth dealer identified as Abel Flores Lopez. Flores was given ten years in federal prison. His co-defendant Alberto Santana Cabrera received the toughest punishment. Santana got 75 years after failing to assist the government with valuable information on other drug dealers.

But federal judicial opinion isn't unanimous. Last year, in a blistering one-page ruling, US District Court Judge Lynn Hughes of the Southern District of Texas in Houston declared "that the law allowing the government to obtain cell phone records without a warrant is unconstitutional."

In that case, federal prosecutors had subpoenaed MetroPCS and T-Mobile to hand over sixty days of cell phone location data belonging to drug suspects. "The records would show the date, time, called number, and location of the telephone when the call was made," Hughes noted.

As the law now stands, cell phone customers who value their privacy are at the mercy of law enforcement and their wireless service providers. And the wireless service providers are all too happy to work with law enforcement voluntarily, and turn a tidy profit doing it.

Our favorite carriers, including AT&T, Verizon, T-Mobile and Sprint, are in on the action by selling information to police about a person's whereabouts, including the sale of private text messages and cell tower data, which pinpoint the location where someone is using a cell, the New York Times reported in March. Some companies are marketing surveillance fees to law enforcement to spy on targets even though wireless carriers declare that they don't sell their customers' information to police.

The Times found that T-Mobile charges law enforcement $150 per-hour for cell phone data that shows the approximate location of the tower that a cell phone "pings" off of when the user makes a call. It found that Alltel provides a faxed listing of an electronic "Tower Dump" for specific times and dates. The listing is "no charge," but the company charges a flat rate of $500 for those searches.

Verizon Wireless, on the other hand, charges  $30-$60 for 15 minutes' worth of tower data, while AT&T charges $75 hourly (a minimum of two to four hours per tower) for a Cell Tower Dump or Cell Site Usage Report. Cell Site Usage also includes subscriber information for the location, date and time when a phone was used.

The Times also found that Sprint once billed the Raleigh, North Carolina, Police Department at a "reduced rate" of $50 for an historic tower search and added $30 more for a search of "L-Site GPS pings," while the ACLU reported that Sprint had billed the Phoenix Police Department $460 for the GPS "pings" over a two-day period in 2009.

"The bottom line is that our mobile phone companies should be working for us, their customers, not the police, says Nicole Ozer, an ACLU staff attorney.

Not only are the wireless providers profiting from your privacy by working with the police, they are lobbying to be able to continue to do so. Even as the debate rages over warrantless cell phone tracking, cell carriers are geared up to oppose legislation that would force the companies to publicly report the number of times their employees provide cell phone location information to police and federal agents.

Sen. Al Franken
One important proposal is California Senate Bill 1434, introduced by Sen. Mark Leno (D-San Francisco), which would prohibit carriers from revealing data to police without a warrant. Wireless providers are joining together to fight it.

"These reporting mandates would unduly prevent us from insuring the public's safety and saving lives," AT&T, Sprint, and T-Mobile said in a joint statement.

The battle continues. Motivated by the ACLU research and news reports on the controversy surrounding  warrantless cell phone tracking, US Senator Al Franken (D-Minnesota) recently convened a Senate Judiciary Committee hearing to gather support for the GPS Act. At the hearing, Franken unveiled a letter he had written to Attorney General Holder seeking information on Justice Department cell phone tracking activity, what the department's stance on the standard for requests for historical location data (cell sites, GPS data), and whether the department had changed its practices in the light of the Jones decision.

He is still awaiting a response from Justice.

On the legal front, with state and federal courts split in their decisions on whether warrantless phone tracking violates the Fourth Amendment, the tens of millions of Americans who use cell phones and smart phones will have to wait for the Supreme Court to be the final arbiter. In the meantime, they could just be tracking you -- warrant or not.

What Happens AFTER You Refuse a Police Search?

Flex Your Rights has been working for many years now to educate everyone we can about the importance of refusing police searches and otherwise knowing and asserting your constitutional rights when confronted by police. Unfortunately, even if you handle a police encounter perfectly, things can still get pretty ugly. This video discusses how to handle some of the challenges you can run into after asserting your rights:

Virginia Cops Claim Superhuman Marijuana-Sniffing Abilities

Police officers in Chesapeake, Virginia, have developed the ability to smell marijuana in cars as they cruise down the highway, even when the police have their windows up. Or, at least, according to a report in the Norfolk Virginian-Pilot last week, that's what they are claiming.

Chesapeake, Virginia police department
"We drive our patrol car with the vents on, pulling air from the outside in, directly into our faces," Officer Barrett Ring said late last year in court during a preliminary hearing, according to a transcript of the proceedings. "Commonly, we'll be behind vehicles that somebody in the vehicle is smoking marijuana, and we can smell it clear as day."

Smelling the odor of marijuana would create probable cause to stop and search a vehicle. Ring said police would follow a car until there were no other cars in the area so they could make sure it was indeed that vehicle from which the odor of weed was emanating.

Defense attorneys and civil libertarians are pronouncing themselves mind-boggled by the claim.

"The idea that police can drive behind a car and smell marijuana is preposterous," said Assistant Public Defender Matthew Taylor. "What do we need drug dogs for if (police) can drive behind cars and smell marijuana?"

The police were claiming powers verging on the "supernatural," he said.

"It stretches the imagination that the police can drive down the road and hone in on a car," agreed ACLU of Virginia executive director Kent Willis.

Willis said that traffic stops based solely on an officer's sniffing from a police car will draw legal challenges. "Experts will have to tangle over this and decide," he predicted.

So far, no cases have been thrown out, although Taylor tried unsuccessfully to make that happen in a recent case. In that case, police claimed they smelled marijuana in a vehicle while driving down the highway and pulled it over. But the issue of their amazing olfactory abilities wasn't addressed by the court because police also said they smelled marijuana when they approached the vehicle on foot.

Other area defense attorneys who had cases where police made similar claims said they had not challenged the searches because police had reasons to conduct the traffic stops.

The practice is apparently limited to Chesapeake Police, according to the Virginian-Pilot's survey of local law enforcement agencies. Suffolk County prosecutor Phillips Ferguson said he hadn't heard of the practice, but expected it to catch on.

"It's very creative policing," he said, but added that if police were using the moving automobile sniff as their as their sole basis for making a traffic stop, that might be successfully challenged. "I'm not saying they wouldn't have been justified in stopping the car, but it's pushing the line," Ferguson said.

Instead, he recommended that if police smell the odor of marijuana coming from a passing vehicle on the road, they find some other pretext to pull it over.

Public defender Taylor said he challenged the vehicle search in his case because he wanted to challenge the validity of the technique. "If cops can get away with this, they will have total authority," he said.

Chesapeake, VA
United States

Video: 5 Ways to Avoid Getting Arrested for Pot

I put together a YouTube version of last week's AlterNet piece. Enjoy.

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School