Search and Seizure

RSS Feed for this category

Video: 5 Ways to Avoid Getting Arrested for Pot

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

5 Ways to Avoid Getting Busted for Pot

The activist-media badasses at AlterNet let me do a big front page story today on how to avoid a pot bust. You might have seen it already, cause this thing got a good amount of traffic, but if you missed it and you aren't yet sick of my know-your-rights lectures, then check it the heck out. And while you're at it, send the link to that friend of yours who's always pushing their luck.

Washington State Supreme Court Limits Vehicle Searches

In an 8-1 decision last Thursday, the Washington state Supreme Court ruled that police must obtain a search warrant to search a vehicle even if they believe it contains evidence of the crime for which the person was arrested. The decision in State v. Snapp overturns the convictions of two men in unrelated but consolidated cases where police stopped drivers and then found drugs in their vehicles while searching them.

The ruling also extends the Washington state constitution's Fourth Amendment privacy protections beyond those granted to other US citizens under the current interpretation of federal constitutional law. In 2009, the US Supreme Court ruled in Arizona v. Gant that such searches were permissible under the Fourth Amendment.

In Gant, the court held that police must obtain a search warrant to search a vehicle, but allowed two exceptions: a limited search for weapons for officer safety and if the officer reasonably believed the vehicle contained evidence of the crime for which the person had been arrested.

While the Washington Supreme Court ruling found that the officer safety exemption already exists under the state constitution, it held that searches of a vehicle for evidence of the crime for which the person was already arrested is not allowed under Article I, Section 7 of the state constitution, which enumerates protections against illegal search and seizure under state law.

The near-unanimous decision came over the protests of prosecutors, who complained that making officers get search warrants to search a vehicle after arrest will take up too much time and would have other, unspecified impacts on law enforcement.

"These delays will only multiply if a warrant is required for every stop at 2:00am on a Friday night in which the officer concludes it is reasonable to believe there is evidence of the crime of arrest in the vehicle," wrote James Whisman, a senior deputy prosecutor with the King County Prosecutor's Office. "Scores of such arrests occur in any given jurisdiction in any 24-hour period."

But as the high court noted, while "a warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest," it had already "rejected the idea that the existence of probable cause alone can justify a warrantless search of a vehicle. While probable cause is a necessary condition for obtaining a warrant, it does not itself justify a search. Contrary to the urgency attending the search incident to arrest to preserve officer safety and prevent destruction or concealment of evidence, there is no similar necessity associated with a warrantless search based upon either a reasonable belief or probable cause to believe that evidence of the crime of arrest is in the vehicle."

In its opinion, the court clearly held that the rights of Washingtonians to be free of warrantless searches trump the right of law enforcement not to be inconvenienced.

Washington is not the only state where state courts have found rights in the state constitution beyond what the US Supreme Court has found in the US Constitution. In Alaska, for one example, the state courts have upheld the right of adults to possess limited amounts of marijuana in their homes. In Pennsylvania, in another example, the state courts have used state law to strike down school drug testing programs that had been okayed under federal Supreme Court jurisprudence.

Olympia, WA
United States

Will Strip-Searches Stop Terrorism and Save America?

I've got a post up at Flex Your Rights talking smack about the Supreme Court's icky new ruling on strip-searches. Check it out.

This Week's Corrupt Cops Stories

Hoo-boy! Institutionalized misconduct and corruption in Florida and New Jersey, more jail guards in trouble, a pill-peddling cop, and a former Colorado sheriff goes down for trading meth for sex. Let's get to it:

In Clearwater, Florida, defense attorneys have called for a US Justice Department investigation of the Pinellas County Sheriff's Office Narcotics Unit, which is embroiled in an ever widening scandal over its practices. The attorneys say the unit routinely violated the civil rights of people it investigated and engaged in unlawful searches and seizures. The scandal began when a videotape emerged of narcotics detectives hopping over a wall to investigate a suspected marijuana grow without a warrant and then trying to destroy the evidence by taping over it. Defense attorneys also accuse unit members of covering up drug trafficking by the daughter of one of its members, physically abusing a man, stealing public funds, and committing perjury when questioned about their potentially illegal activities. New Sheriff Bob Gualtieri has opened at least six internal investigations into the dope squad.

In Camden, New Jersey, the city has paid out at least $340,000 in damages to nearly a dozen low-level accused drug dealers and users whose convictions were overturned because of potentially tainted evidence gathered by corrupt city police. And that's just so far. Another 75 lawsuits alleging abuses have been filed in state Superior Court and nearly as many in federal court. They claim they were victimized by dirty cops who planted evidence and falsely arrested and charged them. Four former Camden police officers have been convicted of planting evidence, stealing cash and drugs, conducting illegal searches, and fabricating reports that led to a series of arrests and convictions between 2007 and 2009. Each faces about 10 years in jail. In addition to the pay-outs, the Camden County Prosecutor's Office has had to dismiss some 200 cases.

In Jacksonville, Florida, a Jacksonville's Sheriff's Office jail guard was arrested last Wednesday after selling oxycodone tablets to an undercover officer. James Mock III, 28, was on duty and in uniform when he sold 80 30-milligram pills in return for $1,600. Now he's facing first- and third-degree felony charges, including selling a controlled substance within 100 yards of a convenience store and possession of a controlled substance without prescription. He was a probationary employee and has been fired.

In Gloucester, New Jersey, a Gloucester Township police officer was arrested Wednesday on drug charges after an internal investigation. The as yet unnamed officer was on duty when arrested and is charged with possession of a controlled dangerous substance, possession of an imitation controlled dangerous substance, possession of a weapon during a controlled dangerous substance offense, and possession with intent to distribute a controlled dangerous substance.

In New York City, a former city jail guard pleaded guilty last Thursday to having sex with an inmate and smuggling drugs and other contraband into the Rikers Island jail. Clara Espada, 41, pleaded guilty to third-degree receiving a bribe, a Class D felony, and forcible touching, a misdemeanor. She went down after the inmate she had sex with told investigators he helped broker deals for Ecstasy, alcohol, and cigarettes that netted Espada $300 a month. Espada is awaiting sentencing and facing six months in jail under a plea deal.

In Centennial, Colorado, a former Colorado Sheriff of the Year pleaded guilty Tuesday to charges he traded methamphetamine for sex with young male tweakers. Former Arapahoe County Sheriff Patrick Sullivan, 69, served as sheriff from 1984 to 20002 before resigning to become director of security at a metropolitan Denver school district. He resigned that position in 2008. He was arrested in a sting operation last year after a man arrested on meth charges mentioned a connection and held in custody in a jail named after himself. He copped a plea to felony meth possession and misdemeanor solicitation of a prostitute, while prosecutors dropped charges of meth distribution and attempting to influence a public servant. Sullivan will do 30 days in jail in addition to eight days he served when arrested.

This Week's Corrupt Cops Stories

An ugly strip search scandal brews in Milwaukee, a bogus pot bust get cops in hot water in Pittsburgh, plus a crooked border deputy, a crooked Puerto Rico cop, and a crooked prison guard. Let's get to it:

In Milwaukee, Wisconsin, eight Milwaukee police officers are under investigation for conducting unlawful strip searches on people they suspected were carrying drugs. Complaints are piling up that officers in District 5 on the city's north side sexually assaulted people and violated their civil rights while conducting rectal searches for drugs on the street. Those under suspicion include Sgt. Jason Mucha, who has been investigated in the past after suspects accused him of beating them and planting drugs on them, and Officer Michael Gasser. Under state law, it is illegal for police to perform a cavity search involving someone's genitals. Such a search must be done by licensed medical personnel once a suspect has been arrested.

In Pittsburgh, Pennsylvania, two Pittsburgh police officers are the targets of a lawsuit filed last Monday by a Hampton man who alleges they falsely arrested him for buying marijuana at a car wash. Officers Kenneth Simon and Anthony Scarpine arrested Timothy Joyce, 23, after Simon claimed he saw Joyce buy weed from a man at the car wash. That led to Joyce being jailed for several days on a charge he violated probation on a misdemeanor drug possession charge. Video surveillance at the car wash showed that Joyce did not interact with the man the officer claimed sold him the marijuana, and the charges were dropped. Joyce is suing the city and the two police officers for unlawful arrest, unlawful search and seizure, and malicious prosecution.

In McAllen, Texas, a former Hidalgo County sheriff's deputy was sentenced last Monday to 11 years in federal prison for his role in a 2009 drug conspiracy. Heriberto Diaz and another deputy raided a house filled with 354 pounds of marijuana, but instead of arresting the occupants, they arranged to have one of their informants steal it. The plot unraveled when a Mission police officer came upon the informant as he was removing the marijuana from the property. Diaz was convicted of conspiracy to distribute marijuana and lying on an official report.

In San Juan, Puerto Rico, a former San Juan Municipal Police officer was convicted last Wednesday for his role in providing security for drug transactions. Arcadio Hernandez-Soto, 35, was convicted in San Juan of three counts of conspiracy to possess with intent to distribute more than five kilograms of cocaine, four counts of attempting to possess with the intent to distribute more than five kilograms of cocaine, and four counts of possession of a firearm in furtherance of a drug transaction. He provided security for what he believed were illegal cocaine deals, but which in fact were part of an undercover FBI operation. In return for the security he provided, Amaro-Santiago received a cash payment of between $2,000 and $3,000 for each transaction. He faces a mandatory minimum sentence of 90 years in prison and a maximum penalty of life in prison.

In Bloomfield, New Jersey, a Bloomfield prison guard was sentenced last Friday to five years in state prison for his role in a scheme to smuggle drugs, cell phones, and other contraband into the Essex County Correctional Facility. Corrections officer Joseph Mastriani, 32, was the mastermind of the ring and made $1,000 a week in the operation. He had pleaded guilty in November to one count of second-degree official misconduct. Under the terms of the plea agreement, he is required to serve five years in prison before being eligible for parole.

Supreme Court to Decide Second Florida Drug Dog Case

The US Supreme Court said Monday it will decide whether it is necessary to provide detailed documentation of drug dog's reliability to prove that the dog is effective at finding drugs. The high court accepted a case on appeal from the state of Florida.

The Florida Supreme Court threw out evidence derived from a drug dog search, holding that police and prosecutors had not provided sufficient evidence of a drug dog's reliability and thus had not provided probable cause to undertake the search.

The case in question, Harris v. Florida, began with a pair of drug dog sniffs of a vehicle being driven by Clayton Harris in Liberty County, between Panama City and Tallahassee in 2006. In the first search, the drug dog alerted and police found pseudoephedrine and other meth-making materials. In the second sniff, the drug dog alerted, but no drugs were found.

As is common practice in Florida and many other states, at trial, prosecutors merely presented evidence that the dog and been trained and certified at drug detection. But on hearing Harris's appeal, the Florida Supreme Court ruled that wasn't good enough.

"Like the informant whose information forms the basis for probable cause, where the dog's alert is the linchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists," the court held. "We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

The state's presentation of evidence that the dog is properly trained is just the beginning -- not the end -- of whether probable cause has been shown, the court said.

"Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts)," the court held in Harris.

"Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures ("unverified" alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog’s reliability."

The US Supreme Court decision will be awaited with great interest by law enforcement, which has found drug dogs a very useful tool in going after drug offenders, especially since the Supreme Court has earlier ruled that a drug dog sniff is not a "search" under the meaning of the Fourth Amendment. The National Police Canine Association has filed a friend of the court brief in the case.

This is the second Florida drug dog case the high court will examine this year. In January, it said it would decide whether a drug dog sniff of the front door of a residence violates the Fourth Amendment. While it has okayed drug dog sniffs at traffic stops, at airport luggage inspections, and for shipped packages in transit, it has repeatedly emphasized that a residence is entitled to greater privacy than cars on a highway.

That case should have oral arguments next month and a decision in September. It is not yet clear when Harris v. Florida will be heard.

Washington, DC
United States

Does Refusing a Search Give Police Probable Cause?

Here's the latest clip from my new YouTube series, How to Deal with Cops. Hopefully you'll find it interesting even if you think you already know the answer. Enjoy.

Two More Drug Raids, Two More Deaths

Two drug raids last Wednesday, one in Miami Lakes, Florida, and one in New Orleans, have resulted in the deaths of two men, one in each raid. Michael Ray Santana, 26, of Miami Lakes and Wendell Allen, 20, of New Orleans become the 14th and 15th persons to die in US domestic drug law enforcement operations so far this year.

In Miami Lakes, according to police, Santana was shot and killed after he confronted members of the Miami-Dade police Special Response Team, a SWAT-style outfit, serving a "high risk narcotics search warrant" at his residence. Police said officers knocked, announced themselves, and then went inside, when they were confronted by a man armed with a firearm.

Santana was the subject of the police investigation, and police said they found numerous firearms and a substantial amount of unspecified "narcotics" in the residence.

In New Orleans, according to police, Allen was shot in the chest and killed by a police officer serving a search warrant at a home where he was present. Officers from both the New Orleans Police Department and Jefferson Parish Sheriff's Department took part in the raid, but the identity of the officer who fired the fatal shot has not been made public.

Police made no mention of any weapons found.

New Orleans Police Superintedant Ronal Serpas said the house in the Gentilly district had been under surveillance for several days.

"Today, multiple narcotics transactions of a distribution nature were observed," he said, adding that a person who left the house was later charged arrested for intent to distribute "narcotics."

Serpa did not identify either the shooter or the dead man, and he didn't take questions during a brief press conference.

But a distraught woman at the scene of the shooting told the New Orleans Times-Picayune he was her grandson, Wendell Allen.

Allen's shooting was the second fatal police shooting in the NOPD's 3rd District in less than a week.

As people milled around the scene of the shooting, one woman screamed, "Lord have mercy! Why does this stuff keep happening?" Another shouted, "The policeman killed him. They killed my baby."

Allen had one arrest on his record, for possession of marijuana with intent to distribute. He was one year into a five-year suspended sentence when he was shot and killed.

In the days since Allen's death last week, a growing clamor has arisen.The Louisiana Justice Institute is threatening to sue the city unless it releases more information on the killing. Police have yet to supply a narrative of what happened, and the officer who pulled the trigger has yet to be interviewed. Family members and community activists demonstrated last Friday and again on Tuesday to keep up the pressure.

What is clear is that the raid was aimed at small-time marijuana dealing, and Allen wasn't the subject of the raid.

 

After Supreme Court Win, Antoine Jones Still Seeks Justice [FEATURE]

by Clarence Walker and Phillip Smith

So, a guy gets convicted in a cocaine conspiracy case and sent to prison for life without parole, but wins on appeal and then wins again in a landmark US Supreme Court ruling on search and seizure law that overturns his conviction and forces dramatic changes in the way federal law enforcers go about their work. You would think this guy would be a pretty happy camper, getting back to his life and enjoying his freedom after sticking a thumb in the federal government's eye. But you would be dead wrong.

Antoine Jones (photo by Clarence Walker)
Meet Antoine Jones, the Jones in US v. Jones, last month's Supreme Court case in which the high court held that tracking a vehicle's movements by placing a GPS tracking device on it without first obtaining a search warrant is constitutionally impermissible. That ruling set off an earthquake under the Justice Department, evidenced this week with reports that the FBI has turned off some 3,000 GPS tracking devices that were in use.

FBI General Counsel Andrew Weissman told a University of San Francisco conference appropriately titled "Big Brother in the 21st Century" that the FBI had had problems locating some of the turned off devices and had sought court orders to get permission to briefly turn them on again, so agents can locate and retrieve them. The Supreme Court decision had caused "a sea change" at Justice, he said.

The Jones case may have been a victory for civil liberties and constitutional rights advocates, but Antoine Jones is still sitting in prison. Determined to nail the former Washington, DC, nightclub owner, federal prosecutors have announced they will seek to retry Jones without the evidence garnered by the GPS tracking device, and they want him securely behind bars until they get around to doing so.

The decision to not free Jones even though his conviction has been vacated and his case sent back to the trial court is of a piece with prosecutors' earlier tactics. After Jones won his case on appeal, prosecutors argued successfully then against granting him bail as they awaited a Supreme Court decision.

They think they have a big time dope dealer. Back in 2005, when the case began, Jones was targeted by the FBI and other federal and state police agencies as a major player in a multi-million dollar cocaine ring with ties to a Mexico-based organized crime group. Investigators said Jones and his co-conspirators distributed cocaine throughout the DC metro area. They eventually won a conviction against him, although it took them two separate prosecutions to do so. It was that conviction that was reversed by the Supreme Court.

Veteran Houston-based crime beat reporter Clarence Walker has been in communication with Jones via mail and the occasional phone call for the past several years. He's also been talking to Jones' appellate attorney, Stephan Leckar, who is exploring a possible plea bargain, although Jones doesn't appear interested in anything less than complete exoneration.

While Jones is pleased with the Supreme Court decision, he's not so pleased with the fact he is still being denied his freedom.

"All I can say I am very happy with the Supreme Court decision and I hope the decision helps millions of Americans preserve their right to have reasonable expectation of privacy," Jones told Walker in a phone interview this month. "The ruling came right on time because who knows how many American citizens the government continues to track and monitor for weeks and months without a warrant. Even some of the men here in prison with me have warrantless GPS issues, like a friend of mines named Sigmund James. The government tracked his vehicle for 14 months."

James was convicted in a massive cocaine trafficking case in Orangeburg, South Carolina, an operation called "Bitter Orange." Like Jones, James was sentenced to life without parole.

Jones said he expected to be released after the Supreme Court decision and that he was "shocked" when Leckar told him prosecutors were seeking to retry him or get him to accept a plea bargain.

"Matter of fact, I thought once the mandate was released, I would be freed from prison right away," Jones said, "but Mr. Leckar said the government will never let me go unless I beat them at trial."

"The government is permitted to retry the conspiracy charge, provided they don't use the GPS evidence," Leckar told Walker. "But there are a number of other serious legal issues that must be resolved including whether drugs and cash said to be from a stash house could be admitted," he explained. "But like I told Antoine, the feds have no intention of letting him go and that they will probably retry him on the evidence that was not obtained by the GPS tracker."

Jones got a sentence of life without parole the first time around, Leckar noted, and if he loses a second time, he could face the same sentence. But Jones is not ready to compromise. Instead he is going to fight, both in the criminal courts and the civil courts.

Jones filed a pro se civil suit against numerous law enforcement agencies alleging numerous abuses, but that jailhouse lawsuit was dismissed by the US District Court for Washington, DC, in 2009. Now, however, Jones is refiling, and he has professional legal assistance this time. He is being represented in the civil suit by the DC law firm of Miller & Chevalier.

"The federal authorities know they not only violated my civil rights, and my wife's and son's rights, but they lied on the witness stand, and they burglarized my home and warehouse," Jones charged. "And so now that I have attorneys representing me in the civil suit against the government, they want to wrongfully convict me again to cover up their lies and the crimes they committed during the investigation of my case. The feds know what they have done was wrong."

Jones is not only on the offensive with the civil suits. He has also filed obstruction of justice complaints with the Justice Department's Office of Professional Responsibility and the Office of the Inspector General. He is alleging that FBI and ICE agents committed various illegal acts in attempting to nail him, including falsifying federal reports, conducting searches without a search warrant, planting evidence, forging signatures on search consent forms, and perjury.

GPS satellite
"Since Mr. Leckar said the government will never let me go unless I beat them in trial. I will focus on my civil rights complaints against the Feds and make sure my wife, son and mother-in-law pursue their civil right suit as well," Jones explained. "The civil suits and obstruction of justice complaints could get the federal agents and the police prison time if they are indicted and found guilty."

Purvis Cartwright, a former federal prisoner and highly respected Houston, Texas-based writ writer who has been closely monitoring the GPS case, told Walker that Jones may have made a mistake by suing the federal government because now prosecutors will come back at him very hard to convict him by using "snitchers" to testify against Jones, snitchers that Jones never met.

Cartwright called that strategy a "get on board" scheme, a way for informants to get their sentences reduced by helping prosecutors. "A rat don't have friends," he said, "only victims."

So far, one high-profile snitch has already gotten on board to help convict him in his upcoming retrial, Jones said. He said Leckar told him the government is planning to call a high-level Mexican drug dealer to say he shipped large loads of cocaine to him.

"I've never met nor talked with the guy in my whole life and he never testified in either of my trials," Jones said.

"The feds, like the DEA and FBI, have snitchers in the joint," Cartwright explained. "They will go to these guys and tell them they are trying to get something on a particular guy and then the feds will share with the snitchers some important background information about the target and next thing you know they ready to testify in court against someone they don't even know," he said. "This is rampant in the federal joint."

"The government still thinks they have a case, but they must have forgot what the Court of Appeals stated in their opinion," Jones said, before quoting word for word: "The evidence linking Jones to a conspiracy was not strong, let alone overwhelming, and the government did not have a drug transaction in which Jones was involved, nor any evidence that Jones possessed any drugs."

Prosecutors are reportedly offering a plea deal that would result in a 12-year federal prison sentence for Jones, but he isn't going to take it despite the possibility he could once again doing life without parole. He maintains his innocence, he said.

"I'll fight this case until the end."

Clarence Walker can be reached a cwalkerinvestigate@gmail.com.

Washington, DC
United States

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

StopTheDrugWar Video Archive