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The Supreme Court's Stinky Ruling on Marijuana Odor: What Does it Really Mean?

I have a new piece at Huffington Post attempting to make sense of the Supreme Court's ruling in Kentucky v. King. This thing is a mess, for sure, but it's not exactly the deathblow to our 4th Amendment rights that some have made it out to be.

Supreme Court Okays Police Search Based on Marijuana Odor, Noises

The US Supreme Court Monday upheld the search of a Kentucky man's apartment after police broke in without a search warrant because they said they smelled burning marijuana and heard sounds suggesting he was trying to destroy the evidence. The decision in Kentucky v. King overturned a Kentucky Supreme Court ruling in favor of the apartment resident, Hollis King, who was arrested after police entered his apartment and found drugs.

The US Supreme Court -- dismantling the 4th amendment brick by brick
Fourth Amendment doctrine holds that police must obtain a search warrant to search a residence unless there are "exigent circumstances." In the current case, the exigent circumstance was that, after police knocked on the apartment door, they heard noises they said suggested evidence was being destroyed.

The Kentucky Supreme Court had held that police could not use the exigent circumstances exception because they themselves had created the exigent circumstance by knocking on the door. The US Supreme Court begged to differ.

In his opinion for the 8-1 majority, Justice Samuel Alito wrote that people have no obligation to answer the door when police knock or to allow them to come in if they have opened the door. In such cases, police would have to persuade a judge to issue a search warrant.

But that's not what King and fellow apartment residents did. They started scuttling around suspiciously upon hearing police announce their presence--or at least, police said they did. "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame," Alito wrote.

Only Justice Ruth Bader Ginsburg dissented, arguing that in ruling for the police, the court was giving them a way to get around the search warrant requirement in drug cases. "Police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant," she wrote.

Oddly enough, King was not the target of police. Lexington police had set up a controlled drug buy on the street outside the apartment building, but when they attempted to arrest the suspect, he fled into the building. When police arrived in the hallway, the suspect had vanished, and all police saw was two apartment doors. When they smelled the odor of pot coming from King's apartment, they chose that door. The original suspect was in the other apartment. They arrested him later.

[Scott Morgan, editor at our Speakeasy blog and associate director of Flex Your Rights, has a piece on Huffington Post discussing the Supreme Court decision. Click here to read it.]

Washington, DC
United States

FL Supreme Court Justices Throw Out Evidence Found by Drug Dog

Location: 
FL
United States
The Florida Supreme Court has cited a lack of state standards for drug-sniffing dogs in throwing out evidence one of the canines detected in a Panhandle case. The 5-1 ruling says training certificates and records aren't enough to establish a canine's reliability.
Publication/Source: 
Miami Herald (FL)
URL: 
http://www.miamiherald.com/2011/04/21/2179138/fla-justices-throw-out-evidence.html

Why Refusing a Police Search Helps Protect You Even if They Search You Anyway

http://stopthedrugwar.org/files/policesearch2.png

San Francisco Examiner reports on the latest in a series of controversies surrounding constitutional violations by SFPD officers.

Private attorney Robert Amparan said at a news conference Wednesday at Public Defender Jeff Adachi’s office that a judge had just thrown out his client’s felony marijuana possession for sale case because video evidence contradicted the officers’ testimony in court and statements on the police report.

Amparan said 23-year-old McLaren Wenzell did not consent to letting the officers inside his apartment at 33rd Avenue and Geary Boulevard on March 1. He said the officers did not immediately identify themselves as police and did not have a constitutional basis to search the apartment.

In the course of my work to educate the public about how to properly exercise constitutional rights during police encounters, a reaction I hear frequently is, "What's the point? They're just going to search me anyway." Well, as you can see in the story above, police can get busted for bad behavior, and when they do, the evidence is often declared inadmissible. Think about this: if the suspect had instead given consent for the search, there wouldn't have been any question about the legality of the police entry, and he would have been convicted.  The only reason things worked out for him is because he refused the search and relied on his constitutional rights for protection.

But the critical point here goes beyond what happened to this particular suspect in this particular case. Keep in mind that the legal significance of refusing a police search applies whether or not you've broken the law, and whether or not police break the law. If officers plant evidence, damage your property, or otherwise disrespect your home, it's almost impossible to challenge their actions if you gave them permission to come inside. That's how the law works, and the fact that police sometimes violate it gives you more reason to know and assert your rights, not less.

Florida Governor Orders State Employee Drug Testing

Florida Gov. Rick Scott (R) Tuesday issued an executive order Tuesday requiring that current state employees submit to random drug tests and that applicants for state jobs undergo pre-hiring drug tests. The order will go into effect in 60 days for current employees and immediately for new hires, but it certain to be challenged in court.

Rick Scott
The executive order came as the state legislature grapples with a bill that would require people who apply for state welfare benefits to submit to a drug test -- and pay for it themselves -- before receiving them. That bill, Senate Bill 556, is supported by Gov. Scott and passed the Senate Criminal Justice Committee Tuesday.

"Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace," Scott said. "Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees."

The bill applies only to workers in executive agencies that answer to the governor. Legislators and their staffs would be exempt.

State law already allows for, but does not require, pre-employment drug testing of applicants for jobs at state agencies under the Florida Drug-Free Workplace Act. But the random drug testing of both state employees and welfare recipients is likely to run up against the US Constitution.

Federal courts have generally found that random testing of government workers who aren't in jobs that affect public safety amounts to a "search" by the government. Such searches must be "reasonable," generally, and some courts have interpreted such requirements of ordinary government workers as a violation of the US Constitution's Fourth Amendment right against unreasonable searches. A Michigan law requiring drug testing of welfare recipients was thrown out by the federal courts in 2003.

The ACLU of Florida attacked Scott's order, saying that a federal court had in 2004 already ruled that the state was violating the Fourth Amendment when the Department of Juvenile Justice instituted a random drug testing program. In that case, a US district judge ordered the agency to halt random drug testing and pay the worker who sued $150,000.

"I'm not sure why Gov. Scott does not know that the policy he recreated by executive order today has already been declared unconstitutional," ACLU of Florida Executive Director Howard Simon said in a statement. "The state of Florida cannot force people to surrender their constitutional rights in order to work for the state. Absent any evidence of illegal drug use, or assigned a safety-sensitive job, people have a right to be left alone."

While Gov. Scott is coming off as a hard-liner when it comes to drug testing poor people and state workers, he has also zeroed out the state drug czar's office and blocked the state from beginning a prescription drug tracking plan. But then, as the saying goes, consistency is the hobgoblin of small minds.

Tallahassee, FL
United States

More Undercover Drug Cases Dropped Amid Growing SFPD Scandal

Location: 
San Francisco, CA
United States
Eight more criminal cases were dropped by prosecutors in connection with a looming scandal involving an undercover police unit accused of conducting illegal drug raids and falsifying police reports. The cases in San Francisco Superior Court involved the same officers previously accused of entering residential hotel rooms without warrants or consent and then allegedly lying about their actions on police reports. One officer was accused of falsely arresting a man for drug possession.
Publication/Source: 
The San Francisco Examiner (CA)
URL: 
http://www.sfexaminer.com/local/crime/2011/03/more-undercover-drug-cases-disappear-amid-growing-sfpd-scandal

This Week's Corrupt Cops Stories

It's a veritable cornucopia of drug-related law enforcement corruption! We don't even know where to begin -- just jump in, but don't forget to take a shower after you're done. Let's get to it:

evidence room of opportunity
In Philadelphia, a narcotics cop accused of stealing money from people he stopped has been fired after the Philadelphia Daily News published those allegations. Officer Joseph Sulpizio, 42, had been looking at criminal charges, but Police Chief Charles Ramsey said that now wouldn't happen because the news article "blew the investigation." It was unclear how the Daily News article actually prevented the prosecution.

In San Francisco, six narcotics officers have been accused of illegal searches and perjury by the San Francisco Public Defender's Office, which has released a video it says proves its case. In two separate drug busts at apartments in the Henry Hotel in December and January, police without search warrants entered the apartments and arrested the occupants on drug sales charges. Police said they had informant tips and hot gotten consent to search from the residents. But videos captured by hallway surveillance cameras showed that an officer had used a master key to enter the apartments without the consent of the residents. Last week, a San Francisco Superior Court judge threw out one case, and prosecutors dropped the second one the next day. The public defenders are calling for an additional independent investigation of the incidents, perhaps by the state attorney general's office.

In Buffalo, New York, a Transportation Security Administration agent was arrested March 2 on charges he allowed a "drug kingpin" to pass unmolested through security at the Buffalo Airport. TSA agent Minetta Walker, 43, a behavioral detection officer, is also accused of helping other drug traffickers evade scans and searches to take cash -- but not drugs -- through the airport. She was arrested along with the "kingpin," a Buffalo man who regularly flew to Arizona with large amounts of cash that he used to purchase marijuana, which he then shipped back to Buffalo. Walker is accused of letting him travel under a false name and ushering him past security lines where he might be stopped for carrying large amounts of cash. She has pleaded not guilty to charges of running a criminal enterprise, conspiracy and intent to distribute 100 kilograms or more of marijuana, as well as charges of conspiring to defraud the US and aiding and abetting another to avoid security requirements.

In Dallas, the head of the Mesquite Police Department narcotics unit was arrested last Friday on charges he was ripping off cash during the execution of drug search warrants. Sgt. John David McAllister, 42, after the FBI received a tip in December that he was stealing cash. The FBI set up a sting operation in which an undercover FBI officer posed as a drug courier carrying $100,000 in cash. McAllister and his partner approached the vehicle, turned the driver over to other police, then searched the vehicle, finding the bundles of cash. Video recordings captured him taking one of the bundles and stashing it in his pants. When FBI agents counted the seized cash, it was short $2,000. McAllister is charged with theft of government property, and faces up to 10 years in prison if found guilty.

In Danville, California, a Contra Costa County sheriff's deputy was arrested last Friday in connection with the investigation of a state narcotics agent who allegedly stole drugs from evidence lockers for resale. Deputy Stephen Tanabe, 47, was charged with suspicion of possession and transfer of an assault rifle and conspiracy to possess and sell controlled substances. Tanabe went down as a result of investigations into the February 16 arrest of Contra Costa Central Narcotics Enforcement Team lead Christopher Butler, who was arrested along with a private investigator on 28 felony counts of theft and the possession and sale of meth, marijuana, steroids, and prescription pills. Butler, Tanabe, and the private investigator were all police officers together at the Antioch Police Department in the 1990s.

In Phoenix, a Phoenix police detective was arrested Monday after being accused of replacing Oxycontin in the department's evidence room with over-the-counter drugs. The detective, whose name has not yet been released, is believed to have tampered with 83 evidence bags and swapped-out 2,400 prescription narcotics, replacing them with OTC drugs. The detective could face charges of evidence tampering, theft and drug possession in connection with the investigation. He has been interviewed and released and has resigned from the force.

In Detroit, another Inskter police officer and a former Wayne County prosecutor have pleaded guilty in a case in which Inskter narcotics officers, Wayne County drug prosecutor Karen Plants, and Wayne County Circuit Court Judge Mary Waterstone conspired to knowingly allow perjured testimony to be heard in a cocaine trafficking case. Officer Robert McArthur admitted filing false investigative reports in the 2005 case and pleaded guilty to a misdemeanor charge of willful neglect of duty. Charges of perjury and conspiracy were dropped against McArthur, who could have faced life in prison. Plants then pleaded guilty to one count of official misconduct and agreed to serve six months in jail. The former drug prosecutor copped to the plea in order to avoid trial on a conspiracy count that could have given her life in prison. Earlier, Inskter Officer Scott Rechtzigel pleaded guilty in the same case. Judge Waterstone is scheduled for trial in May. The four plotted to hide the fact that a witness in the case was in fact a snitch for the Inskster cops who had a large monetary incentive to testify as he did.

In Philadelphia, a fired Philadelphia police officer was convicted last Friday in a scheme to steal 300 grams of heroin during a fake traffic stop in his patrol car. Mark Williams, 27, was found guilty of drug and robbery charges. Williams staged the robbery of drug courier last May and split $6,000 in what he thought were proceeds from the sale of the heroin with two other officers, who have already pleaded guilty. But one of his co-conspirators was actually a DEA informant, and the $6,000 was really government bait money. Williams was convicted of conspiracy to distribute more than 100 grams of heroin, possession with intent to distribute heroin, conspiracy to commit robbery and attempted robbery. He's looking at a mandatory minimum five years on the drug counts and another five years on the robbery charges. He has been jailed pending sentencing.

In Alice, Texas, the former Jim Wells County district attorney pleaded guilty Monday to charges he misused millions in seized drug money. For six years ending in 2008, former DA Joe Frank Garza led Jim Wells County law enforcement in an aggressive scheme to pull cars over and seize forfeited property and cash. Garza spent the cash on bonuses for himself and three secretaries, as well as trips to Las Vegas for "seminars." Texas law requires that asset forfeiture expenditures be approved by the county commission, but Garza never bothered. He pleaded guilty to one count of misappropriating more than $2 million, and will likely be sentenced to six months in jail at sentencing in May. He will also have to pay $2.1 million in restitution.

New York City Still America's Marijuana Arrest Capital [FEATURE]

The New York City Police Department arrested nearly 140 people a day for low-level marijuana possession offenses in 2010, according to recently released figures from the New York Division of Criminal Justice. Arrests totaled 50,383 last year, accounting for more than 6% of all small-time pot busts nationwide.

NYPD's highest law enforcement priority? (image via Wikimedia)
While for the past 20 years, New York City has had high marijuana possession arrest rates, last year was the sixth year in a row that the numbers increased. Last year's arrest totals marked a 69% increase over the 29,752 pot possession arrests in 2005. Since Mayor Michael Bloomberg took office in 2002, more than 350,000 people have been arrested for misdemeanor pot possession in the Big Apple.

The dramatic increase in arrests comes even as marijuana usage rates have declined from the 1980 peak, according to US government data. The arrests suggest that the NYPD has quietly made small-time pot busts its top law enforcement priority.

Although the Drug Policy Alliance (DPA) put out a press release with the numbers a week ago, and the story received some play in New York City media, neither Mayor Bloomberg nor the NYPD have deigned to comment.

"New York has made more marijuana arrests under Bloomberg than any mayor in New York City history," said Dr. Harry Levine, a sociology professor at Queens College and a leading scholar of marijuana arrest patterns. "Bloomberg's police have arrested more people for marijuana than Mayors Koch, Dinkins, and Giuliani combined. These arrests cost tens of millions of dollars every year, and introduce tens of thousands of young people into our broken criminal justice system."

The high marijuana possession arrest numbers are particularly shocking because New York state decriminalized marijuana possession back in the 1977. What typically happens is that someone is stopped by the NYPD -- they stopped 575,000 people in 2009 and frisked more than 325,000 of them -- and the police demand that they empty their pockets. When they comply, and a bag of weed emerges, they are then charged not with simple marijuana possession, which is a violation under state law, but with possession "in public view," which is a misdemeanor.

In a stop and frisk, police are allowed to pat down a person to determine whether they are carrying a weapon, but they are not allowed to search inside pockets or bags without probable cause. By complying with a police officer's command to "empty your pockets," the subject is effectively consenting to a search. The better course of action is to say, "Officer, I'm sorry, but I do not consent to any searches." Then, if the officer does search without consent, he could only charge the subject with the violation -- not the misdemeanor "in public view" possession -- and such a charge could be challenged in court.

"Police will intimidate people to get them to take the marijuana out of their pockets, then, once it's in public view, it's an arrestable offense," said the New York native Noah Mamber, of the Marijuana Policy Project. "It's not fair."

Although these offenders are typically sentenced only to a fine, the city gets its pound of flesh first. People busted for pot possession are handcuffed, taken to a police station, booked, and held in jail for 24 hours or more before being arraigned.

The NYPD's "stop and frisk and bust" policy appears to be aimed disproportionately at the city's minority residents and its youth. A whopping 86% of those arrested were black or Latino, even though research consistently shows that young whites use at a higher rate, and 70% of those arrested were under the age of 30.

Mayor Bloomberg could act to stop these busts.
"The NYPD and Mayor Bloomberg are waging a war on young Blacks and Latinos in New York," said Kyung Ji Rhee, director of the Institute for Juvenile Justice Reforms and Alternatives (IJJRA). "These 50,000 arrests for small amounts of marijuana can have devastating consequences for New Yorkers and their families, including: permanent criminal records, loss of financial aid, possible loss of child custody, loss of public housing and a host of other collateral damage. It's not a coincidence that the neighborhoods with high marijuana arrests are the same neighborhoods with high stop-and-frisks and high juvenile arrests."

"The NYPD's marijuana enforcement practices are racially biased, unjust, and costly," said Gabriel Sayegh, DPA's New York state director. "The mayor can end these arrests immediately by simply ordering Police Commissioner Ray Kelly and the NYPD to follow the legislative intent of the 1977 decriminalization law. What the Legislature found in 1977 holds true today: Arrests for small amounts of marijuana are inappropriate and wasteful."

"There is no sane reason New York City should have a higher per capita marijuana possession arrest rate than South Carolina or Georgia or Oklahoma," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. (NORML). "The really vexing part is that the numbers have gone up when they should be going down and that they racial disparity numbers are still at about nine to one. This really seems to belie New York City otherwise progressive attitudes on social issues. Ironically, it's safer to be a cannabis consumer in Buffalo or Schenectady than in Greenwich Village, because police in those cities respect the intent of the law."

The policy is really "a left-handed jobs program for New York City police," St. Pierre continued. "Police in the city can't negotiate increased wages and salaries, but they seem to have an agreement with the mayor's office that they can achieve pay increases by arresting cannabis consumers and then getting overtime. Harry Levine calls it 'dollars for collars.'"

"This is nothing surprising," sighed Morgan Fox, MPP director of communications. "New York City has been an epicenter of marijuana arrests for years, and the racial disparities are no surprise either.

New York City needs to change its low-down ways, said Fox. "They either need to amend the law so it is completely and truly decriminalized, or they could just tax and regulate it similar to alcohol," he argued.

DPA and the IJJRA are working on it on a couple of different levels. The two groups have launched a training program called "Know Your Rights, Build Your Future," which will hold training sessions across the city to educate New Yorkers about their rights and the law. They are also calling on the city council to hold hearings to learn more about the human and fiscal costs of the arrests and to demand greater accountability from the NYPD.

In the mean time, New York City pot smokers need to watch out -- especially if they're young, non-white, or in the outer boroughs. And they would be well-served to educate themselves about what their rights are and how to effectively exercise them.

New York , NY
United States

Reason.tv: How to Deal with Cops

Reason.tv has a fun interview with Flex Your Rights founder Steve Silverman.



As many of you know, Flex Your Rights is my day job, hence the occasional posts about consent searches and 4th Amendment issues that you sometimes see here in addition to drug policy coverage.

New Certification Proposed for Drug-Sniffing Dogs As They Are Wrong Far More Often Than Right

Location: 
IL
United States
A Illinois state representative has again asked fellow legislators to force police dogs to meet certification standards before being used for tasks such as sniffing for drugs at traffic stops. The bill, introduced by State Rep. Jim Durkin (R-Western Springs) follows a recent investigation that showed drug-sniffing dogs, according to state data, have been wrong more often than they have been right about whether vehicles contain drugs or drug paraphernalia.
Publication/Source: 
Chicago Tribune (IL)
URL: 
http://www.chicagotribune.com/news/local/breaking/chibrknews-new-certification-proposed-for-drugsniffing-dogs-20110208,0,872573.story

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