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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.

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.

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