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Welfare Drug Testing Bills Introduced in Four States [FEATURE]

drug testing lab -- corporate welfare carrying out an ineffective strategy?
Critics of welfare drug testing cite unconstitutionality of warrantless drug testing, the cost of drug testing tens or hundreds of thousands of people, counterproductive results and mean-spiritedness in opposing legislation that would require it. But that hasn't stopped legislators from coming back again and again.

With this year's state legislative season barely under way, bills have been introduced in four states -- Kentucky, Missouri, Nebraska, and Oregon -- to require drug testing for people receiving public assistance. And in a novel twist, a bill in Indiana would require unemployment recipients to declare they are not using illegal drugs and threatens them with up to three years in prison for perjury if they are found to be using them.

But while such bills may be popular with politicians of a certain stripe, they don't find much support among professionals in the field. Groups that have lined up against such bills include the American Public Health Association, the National Association of Social Workers, the National Association of Alcoholism and Drug Abuse Counselors, the American College of Obstetricians and Gynecologists, the National Council on Alcoholism and Drug Dependence, the Association of Maternal and Child Health Programs, the Center for Addiction and Mental Health, the National Health Law Project, the National Association on Alcohol, Drugs and Disability, National Advocates for Pregnant Women, the National Black Women’s Health Project, the Legal Action Center, the National Welfare Rights Union, the Youth Law Center, the Juvenile Law Center, and the National Coalition for Child Protection Reform.

The American Civil Liberties Union (ACLU), which successfully litigated against Michigan's welfare drug testing law, has also come down strongly against welfare drug testing. Such laws are "scientifically, fiscally, and constitutionally unsound," in the ACLU's opinion. The group cites studies showing welfare recipients are no more likely to use drugs than the rest of the population and that 70% of illicit drug users are employed. It also cites research showing that drug testing is an expensive, but ineffective way to uncover drug abuse. (Full citations and more information are available at the ACLU link above.)

But the kicker for the ACLU is the unconstitutionality of warrantless drug testing by the state, as determined by the US 6th Circuit Court of Appeals in the Michigan case. Michigan was the only state to actually implement a welfare drug testing program, but the appeals court found that the program violated the Fourth Amendment's provision barring unreasonable searches.

The persistence of such attempts is drawing concern from the drug reform community as well. Given the fiscal pressures facing the states, legislators could be even more susceptible to pseudo-populist demagoguery than usual.

"I am quite concerned that recurring legislative proposals to require drug testing of welfare and/or unemployment applicants and beneficiaries will gain new momentum with the budget crises confronting so many states, and also in Congress," said Ethan Nadelmann, executive director of the Drug Policy Alliance (DPA). "The proposals are mean-spirited, counter-productive and will ultimately cost much more than they save by depriving needy Americans of access to benefits. DPA will do all it can to ensure that these proposals do not become law."

"These kinds of laws aren't going to stop someone who is addicted from being addicted," said Richard Wexler, executive director of the National Coalition for Child Protection Reform. "They're just going to drive them further away from getting any kind of help. Also, it is often poverty that causes the stress that helps create addiction. If you make someone poorer, you just deepen that despair," he pointed out.

"If you really want to deal with the problem of addiction, provide treatment on demand," Wexler offered. "And if people are worried that not everyone will take advantage of it, let's put that to the test. Make drug treatment immediately available and see if the claim that people will turn it down has any merit."

But nobody is offering treatment on demand. Instead, legislators are offering up a stick with no carrot.

In Kentucky, a bill championed by Rep. Lonnie Napier (R-Lancaster), HB 208, would require all adults applying for public assistance to undergo drug tests, followed by random testing once a year. The measure would apply to all adults receiving or applying to receive food stamps, cash assistance, or Medicaid. Although Napier told the Richmond Register a positive test result would not necessarily result in the loss of benefits, the bill itself says that a positive test will make the individual "ineligible" for public assistance.

"There’s people buying food with food stamps and trading that food for drugs. Children are not getting benefit from it. Children do not need to be in a home where drugs are present," the loquacious Napier told the Register. "Maybe it could get people off drugs. Drugs are breaking the state up. If we could get a few people off drugs, it would be worth it," he said.

But Napier's assertion about trading food stamps for drugs appears to be based on little more than hearsay. "People tell me people are abusing the system," he said. "If you knew you were to be tested, you'd want to be clean."

Still, Napier's bill has some powerful friends. Among its cosponsors are House Speaker Greg Stumbo (D-Prestonburg) and House Minority Leader Danny Ford (R-Mt. Vernon).

In Missouri, Rep. Ellen Brandom (R-Sikeston) is pushing HB 73, which would require a drug test for anyone applying for or receiving public benefits if there is "reasonable cause" to believe they are using drugs. Failure to pass the drug test would result in the suspension of benefits for one year, and the person would then have to apply to be reinstated in the program.

Brandom told Kansas City's KCTV 5 that she was doing it for the taxpayers. "They're very resentful that they're working hard, and have to take a drug test to work," Brandom said. "The people who aren't working can receive their tax dollars, and don't have to be held to the same high standard."

That bill passed the House Rules Committee on an 11-4 vote last week and is set for a House floor vote this week. A similar measure passed the House last year, but died in the Senate.

A welfare drug testing bill has also been introduced in Nebraska. The Chronicle covered it last week; you can read about it here.

In Oregon, there are two separate bills aimed at recipients of public assistance. State Sen. Bruce Starr (R-Hillsboro) has introduced SB 538, which would require all people receiving welfare and food stamps to be take a drug test each six months -- at their own expense. A positive test result would result in the termination of public assistance.

And state Rep. Dennis Richardson (R-Central Point) has introduced HB 2995, which would require those applying for unemployment benefits to first pass a drug test. Those who tested positive would have to enter drug treatment or give up their benefits.

Richardson's bill has not yet been assigned to a committee. Starr's bill was assigned Tuesday to the Senate Health Care, Human Services and Rural Health Committee. No hearing dates have been set.

And then there's Indiana. In the Hoosier State, state Sen. Jean Leising (R-Oldenburg) has introduced SB 86, which would require people seeking unemployment benefits to declare on their applications that they will refrain from any illegal drug use. The bill also says that applicants are subject to "penalty of perjury" if they sign a declaration and then are found to be using drugs. Perjury carries a prison sentence of up to three years in Indiana.

"In employers' eyes as well as many Hoosiers' eyes, there is something wrong with the system if unemployment applicants are able to receive taxpayer money that may, in fact, be used to purchase controlled substances and lead to them being unqualified to work," Leising said in a press release. "This is an issue legislators need to review."

The bill is moving. It passed out of the Senate Pensions and Labor Committee last week.

The battle over welfare and/or unemployment drug testing is going to have to be fought again and again. In addition to the states that have bills this year, similar legislation has been proposed since 2008 in Texas, Rhode Island, Missouri, Nebraska, Georgia, Kansas, West Virginia, and Arizona. The impulse to target the poor and disenfranchised remains strong and is made even stronger by the dire fiscal position in which the states find themselves. The bright side is that, so far, that impulse has not prevailed.

Supreme Court Debates Warrantless Entry When Police Smell Marijuana

http://stopthedrugwar.org/files/scaleofjustice2.png

Recent Supreme Court decisions regarding search and seizure haven't exactly signaled an unyielding reverence for our 4th Amendment rights, so I shudder to think how the Court will rule on this:

Kentucky police were following a man who had just sold drugs to an undercover informant. They entered an apartment breezeway, heard a door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King's apartment door and identified themselves as police. The officers said they heard a noise and feared evidence was being destroyed. They kicked down the door and found King, two friends, some drugs and cash. [Washington Post]
 

Home searches generally require a warrant, even when probable cause exists (the smell of marijuana), but officers claimed their fear that evidence would be destroyed constituted an "exigent circumstances" exception to the warrant requirement. Ironically, however, the presence of police became known to the suspects only because the officers knocked and announced themselves. If any effort was made to dispose of evidence, it was obviously triggered by the police, who could have waited for a warrant rather than initiating contact right then and there.

If the Supreme Court upholds this search, police will be encouraged to creatively interpret any noises heard within homes they'd like to search, and it's hard to imagine what sorts of sounds couldn’t potentially be said to indicate possible destruction of evidence. Police who hear "sudden movements" after pounding on someone's door can claim to be concerned about destruction of evidence, but who wouldn't make a sudden movement if cops were shouting and banging on the door? Maybe I'm just putting on some pants. Maybe I'm hastily locking my dog in the bathroom so they won't shoot its brains out. People are going to react when disturbed in their homes and it's absurd to strip our 4th Amendment rights based on one of many possible explanations for the movements people make when you startle them.

Keep in mind, however, that this case involved a probable cause situation in which police did smell marijuana. Even the worst possible ruling still wouldn't give police the authority to randomly knock on doors with no evidence and perform emergency searches based on suspicious reactions from the people inside. But if the Court continues chipping away at the 4th Amendment at its current pace, I can't blame anyone for worrying that we're headed in that direction. Fortunately, some of the justices expressed serious concerns about giving police more leeway to perform emergency searches. This one could go either way and we'll be sure to keep you posted.

Cross-posted from Flex Your Rights

Police Can Kick Down Doors in Drug Searches, Some Justices Say

Police officers who smell marijuana coming from an apartment can break down the door and burst in if they have reason to believe this evidence might be destroyed, several Supreme Court's justices suggested Wednesday. In the past, the high court has said police usually cannot enter a home or apartment without a search warrant because of the 4th Amendment's ban on "unreasonable searches and seizures."
Publication/Source: 
Los Angeles Times (CA)
URL: 
http://www.latimes.com/news/nationworld/nation/wire/sc-dc-0113-court-search-20110112,0,7017935.story

Drug Trade Among Whites More Open in NYC?

Location: 
New York, NY
United States
While police crack down on drug deals in mostly minority neighborhoods, the drug trade among whites in New York City operates with relative impunity, statistics show. In 2009, only 10 percent of the 46,000 people arrested on marijuana-related charges by the New York City Police Department were white, according to a 2010 study — though whites are often among its heaviest drug users.
Publication/Source: 
Metro (NY)
URL: 
http://www.metro.us/newyork/local/article/738857--drug-trade-among-whites-more-open

'False Positives' Suggest Police Exploit Canines to Justify Searches

Location: 
IL
United States
A study of "false positives" involving drug-sniffing police dogs suggests some police forces may be using canines to do an end-run around constitutional protections against search and seizure, and may be profiling racial minorities in the process. A survey of primarily suburban police departments in Illinois, carried out by the Chicago Tribune, found that 56 percent of all police searches triggered by a drug-sniffing dog turned nothing up. But, perhaps tellingly, that number jumped to 73 percent when the search involved a Latino subject -- meaning that nearly three-quarters of all dog alerts on Latinos turned up no contraband.
Publication/Source: 
The Raw Story (DC)
URL: 
http://www.rawstory.com/rs/2011/01/false-positives-police-canines-searches/

California Supreme Court Okays Text Message Searches in Drug Arrests

The California Supreme Court ruled Monday that police can search text messages on the cell phones of people they arrest without obtaining a search warrant. Citing US Supreme Court precedent from the 1970s, the court held that reviewing cell phone text messages was a valid search incidental to arrest.

Cell phones the new snitches? (image via Wikimedia)
The ruling came in California v. Diaz, in which Ventura County resident Gregory Diaz was arrested for selling Ecstasy to an undercover informant. Sheriff's deputies seized Diaz' cell phone along with six tabs of the drug. An hour and a half after the arrest, a detective without a search warrant looked at the phone' text message folders and found a coded message referring to Ecstasy sales.

When faced with the incriminating text message, Diaz admitted to doing the drug deal. He pleaded guilty to transporting a controlled substance, but reserved his right to appeal. He was sentenced to probation and did appeal the lawfulness of the cell phone search.

In a 5-2 decision, the state high court majority held that the search was allowable under US Supreme Court rulings that permitted the warrantless searches of personal property "immediately associated" with the arrested person, such as clothing or cigarette packs. Writing for the majority, Justice Ming Chin held that the cell phone was personal property, that it was immediately associated with Diaz, and that the search was therefore valid.

But in a dissenting opinion, Justice Kathryn Werdegar argued that searching the cell phone's text messages was "highly intrusive" and could have been carried out after police obtained a search warrant. Earlier US Supreme Court rulings should be reevaluated in light of technological innovations, she wrote.

Justice Werdegar may have been in the minority in the California case, but the high court in at least one other state has ruled that warrantless searches of cell phones incident to arrest are unconstitutional. In Ohio v. Smith, decided in December 2009, the Ohio Supreme Court held that the warrantless search of a drug suspect's cell phone violated his Fourth Amendment protections against unreasonable searches and seizures.

"Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased," Justice Judith Ann Lanzinger wrote for the majority in that case. "But because a person has a high expectation of privacy in a cell phone's contents, police must then obtain a warrant before intruding into the phone's contents."

With state supreme courts in two different states coming to starkly different conclusions about the constitutionality of warrantless cell phone searches incident to arrest, this issue would appear to be likely to be headed for resolution at the US Supreme Court.

San Francisco, CA
United States

Ruling Lets California Police Search Your Phone Without a Warrant

Location: 
CA
United States
A Superior Court in Ventura County, California, ruled that police in that state can search the contents of an arrested person's cell phone. The ruling allows police in California to access any data stored on an arrestee's phone: photos, address book, Web browsing history, data stored in apps (including social media apps), voicemail messages, search history, chat logs, and more. According to Catherine Crump of the American Civil Liberties Union, "The police can ask you to unlock the phone -- which many people will do -- but they almost certainly cannot compel you to unlock your phone without the involvement of a judge," she said.
Publication/Source: 
CNN (US)
URL: 
http://www.cnn.com/2011/TECH/mobile/01/05/search.warrant.phone.gahran/

Warrantless GPS Not a Shortcut for Drug Investigators, Judge Panel Finds [FEATURE]

Special to the Chronicle by Clarence Walker

[Editor's Note: Houston-based Clarence Walker has spent more than two decades as an investigative crime journalist, associate producer for cable TV criminal justice shows, and stringer for wire services. He has also published extensively in daily and weekly newspapers in Texas and New York, and legal journals. Look for more on GPS surveillance and the Antoine Jones case, including a full-length interview with the current Supermax resident, in the next week or two.]

In an August ruling that created a split with federal circuit courts in New York and California, the US Court of Appeals for District of Columbia became the first in the land to hold that police cannot use a Global Positioning System (GPS) device to track a person's movement for an extended period of time without a warrant.

http://stopthedrugwar.org/files/gps-tracking.jpg
Police placed a warrantless GPS Tracking Device on Jones' vehicle.
Just three weeks later, the 9th US Circuit Court of Appeals in San Francisco upheld warrantless GPS tracking in similar circumstances. Given the rifts in the federal circuit courts, and now, among the differing appeals courts, the issue is almost certainly headed for the US Supreme Court for resolution.

The DC ruling in US v. Lawrence Maynard came in the case of two conjoined defendants, Lawrence Maynard and Antoine Jones, who were convicted of cocaine conspiracy offenses in the DC district court. Jones, the owner of a Maryland night club, had been 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.

In September 2005, Judge Paul Friedman of the federal district court issued a warrant for the FBI to install a GPS device on the Cherokee Jeep that Jones drove. For unknown reasons the investigators allowed the GPS warrant to expire, rendering it invalid. Why agents never requested another warrant remains unclear, but they went ahead and placed a GPS on Jones' vehicle.

The warrantless GPS produced 3,106 pages of data showing the movement of the vehicle at 10-second intervals. US attorneys said the data evidence placed Jones at a Fort Washington, Maryland residence where FBI in 2005 recovered 97 kilos of cocaine and almost a million dollars. Jones was arrested the same day of the raid and held without bond on multiple drug trafficking and conspiracy charges.

The first trial went disastrously for prosecutors. Jurors in the case handed down numerous acquittals and deadlocked on multiple other charges. After the trial, jurors told the Washington Post that the government had failed to prove its case. They wondered why none of the defendants were caught with or near the kilos of cocaine worth millions and why neither Jones nor his associates were ever photographed at the location where the drugs were found. And they questioned the GPS evidence, which they said only placed Jones' vehicle in the immediate area.

While Jones was acquitted of the most serious charge of conspiracy, he remained in jail pending retrial on the remaining charges.  The feds did better the second time around. Using the same GPS and informant evidence as in the first trial, they managed to convince a jury to convict Jones this time. He was sentenced to life in prison, and currently resides in the federal Supermax prison in Florence, Colorado, as he awaits a government appeal of the August appeals court ruling.

In that decision, federal Judge Douglas Ginsburg, writing for a unanimous three-judge panel, held that the warrantless use of such surveillance technologies violates constitutional protections against warrantless searches. The heart of the ruling concerned a person's privacy expectation irrespective of the criminal nature involved.

http://stopthedrugwar.org/files/judge-douglas-ginsburg.jpg
Federal Appeal Court Judge Douglas Gingsburg voted to overturn Antoine Jones' conviction.
"It is one thing for a passerby to observe or even follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after, week in and week out, dogging his prey until he has identified all the people, amusements, and chores that make up that person's hitherto private routine," Ginsburg wrote.

Government prosecutors argued the extended surveillance -- 28 days worth of GPS tracking without a warrant -- did not violate Jones's right to a reasonable expectation of privacy because he had been traveling in full view on public roads. In so doing, they relied on the Supreme Court's decision in US v. Knotts, which held that police could legally track a suspect's car electronically without a warrant.

Other circuit courts have interpreted the Knotts decision to allow extended surveillance. But the DC panel held that relying on Knotts to approve extended warrantless surveillance was a misreading of the case because the Supreme Court had reserved its opinion on whether such tactics could be used in full-time, "dragnet-type" surveillance.

Although in the minority in the 9th Circuit case later that month, Judge Alex Kozinski strongly agreed with his brethren on the DC appeals court. "By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," he wrote in a stinging dissent.

The DC appeals court ruling was welcomed by civil libertarians, defense attorneys, and the Electronic Frontier Foundation and the American Civil Liberties Union (ACLU), which filed amicus briefs arguing that a warrant should be required for GPS tracking.

"Today's decision brings the Fourth Amendment in the 21st century," said Arthur Spitzer, legal director of the ACLU.

"This is the first decision on the federal appellate side that's really given momentum to the requirement for a warrant," said Washington, DC, attorney Daniel Prywes.

"The big picture is if the court allows warrantless GPS, it will take us one giant step closer to a surveillance society and that much further away from a free society," said ACLU attorney Bryan Caves. "Warrantless GPS would allow police anywhere to track a person's movement over an extended period of time without judicial supervision. And that's scary."

The lawyers weren't the only ones happy with the decision. "I was overwhelmed with happiness" when the verdict came in, said Antoine Jones. "But the first time in my life I got brain lock!  When I read my appeal attorney's email and it said, 'We won!' I had to call one of my homies and asked him to email my wife and my loved ones because I lost it. I had to go and pray, thanking God to get it back together."

But unless and until the US Supreme Court decides the GPS tracking issue in his favor, Antoine Jones remains inmate number 18600-016 at the Florence Supermax. Journalist Clarence Walker interviewed him over a matter of weeks via email and phone calls this fall. Jones continues to fight to see the light of day and decries what he called a rigged trial.

"The next step is to see if the government will appeal the decision," he said. "If the appeal is forwarded to an en-banc hearing, my attorney, Stephen Lecklar, said he doesn't think the government will get a favorable ruling because the three-panel judges has already ruled in my favor."

Jones said the government might bypass the en-banc hearing and appeal to the Supreme Court."So if the government doesn't appeal the reversed decision, I will be released immediately."  Jones added that if the Supreme Court affirms the reversal, "It will crush the government because all 50 states would require police to get a warrant before they can place an electronic device on vehicles."

Jones did not receive a fair trial, he said. "It would take days to explain all the misconduct by the government and how I was punished with prejudice in both trials. I have five civil complaints dealing with this case and I am going to win," he predicted. "Without the trial judge's prejudice against me the government wouldn't have had a chance and I would have walked free during the first trial -- or at least, the case would have been dismissed in pretrial."

Jones pointed to an admitted warrantless search of his apartment by federal agents. "Once the agent admitted this error, Judge Huvelle should have ruled in my favor, but she didn't rule to avoid a mistrial. That violation alone should have caused a mistrial or acquittal."

"To make matters worse the agents also entered my house illegally with a key and the judge wouldn't allow my wife or son to testify to the illegal search which allowed me to get convicted on this prejudiced evidence," Jones said.

Nor was Jones impressed by the quality of justice in the federal courts, and he aimed his broadside at the defense bar, as well as prosecutors and the judiciary. "These days the feds don't have to try to get you to roll over on your co-defendants," he said. "They get the high-paid shyster lawyers to do their dirty work. I explained to my attorney in the beginning of the case that I was going to war and I didn't want to hear what the government had to say or offer."

What the lawyers are doing in DC District Courts is coercing their clients to attend a "reverse debriefing" whereby the government will present evidence from a case, Jones explained. "And then the government and defense attorneys manipulate and encourage the defendant to work with the government or take a plea."

Lawyers for some of the co-defendants in the case decided to snitch for the feds. Jones recalled how the tactics backfired.  "Almost all of my co-defendants and their lawyers tried to get them to flip on me but those who declined and went to trial with me the first time, they were acquitted. But two of my co-defendants attended the debriefing and testified against me. They went to prison but the other three who declined to testify went home."

As he awaits his freedom, Jones said he relied on faith and family to see him through. "The only thing that keeps me going is the grace of God, his protection and my family support," he said. "I am at the US federal prison in Florence, Colorado, and this place is a living hell!"

http://stopthedrugwar.org/files/attorney-eduardo-balarezo.jpg
Attorney  A. Eduardo Balarezo represented Jones during trial.
Jones' trial attorney, Washington-based Eduardo Balarezo, confirmed most of Jones' story. While he would not agree that some officers perjured themselves at trial, he added, "Although I think some of them massaged the truth a little bit."


Balarezo didn't think much of the government's stated reason for failing to obtain a warrant before GPSing Jones' vehicle. "The government basically said that getting a warrant would be onerous and not necessary, yet they were able to get one, but then let it expire and still placed it on my client's car," he noted.

Now, Jones may help make history as, one way or another, the warrantless GPS tracking issue makes its way to the Supreme Court. The former DC club owner is ready to start fresh once given the chance to walk out the prison doors.

"If the Lord blesses me to prevail and get my freedom, I will educate the youth and give back to the community," he said. "The real story is to put the past behind me and do the Lord's work to help others and save our youth."

Washington, DC
United States

Flex Your Rights on Freedom Watch with Judge Napolitano

Steve Silverman and I appeared on yesterday's episode of Freedom Watch on FOX Business Network to discuss our latest film, 10 Rules for Dealing with Police. The movie has gotten a lot of attention this month, and it was a blast appearing on a show that I've praised in the past.

A Cop's Advice on Dealing with Cops

Neill Franklin from LEAP has an awesome piece in The Huffington Post today on the importance of knowing your constitutional rights during police encounters. It includes a cool slideshow of all the rules from 10 Rules for Dealing with Police. Check it out.

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