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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

Fight Is On to Make Drug Possession a Misdemeanor in California [FEATURE]

At the end of February, state Sen. Mark Leno (D-San Francisco) introduced a bill that would make drug possession for personal use a misdemeanor in California. If the bill passes, California would join 13 other states and the District of Columbia that have taken the cost-saving and rehabilitation-aiding step of not making felons out of mere drug users.

California needs to reduce prison and jail overcrowding (US Supreme Court)
The measure, Senate Bill 1506, would make the possession of any controlled substance -- except up to an ounce of marijuana, which is already decriminalized -- a misdemeanor punishable by up to a year in county jail. Under current law, possession of controlled substances, such as heroin, cocaine, or methamphetamine, is a felony punishable by either up to 16 months in county jail or two to three years in state prison.

A felony conviction doesn't just mean jail or prison time. It becomes a permanent barrier to reentry into society, making access to education, employment, and housing more difficult, as well as barring people with such convictions from obtaining professional licenses and subjecting them to various other obstacles.

The bill is backed by an array of drug policy, civil liberties, and human rights groups, including early supporters the American Civil Liberties Union, the California State NAACP, the Drug Policy Alliance, and the Ella Baker Center for Human Rights.

Budget-conscious California voters have shown an interest in drug sentencing reform in the past. In 2000, they passed Proposition 36 to divert drug offenders from prison to treatment by a margin of 61%. Since then, the state's economic situation has only gotten worse, and pressure to do something about its gargantuan $9.3 billion corrections budget is on the rise.

A Lake Research Partners poll released last April found that 72% of respondents favored changing drug possession from a felony to a misdemeanor, with 40% saying small-time drug possession for person use should be considered an infraction, with no jail time. Strong support for such a reform cuts across party lines, with support among Democrats at 79%, among independents at 72%, and among Republicans at 66%.

"Over the years we have learned that long prison sentences do little to deter or limit personal drug use," said Sen. Leno. "In fact, time behind bars and felony records often have horrible consequences for people trying to overcome addiction because they are unlikely to receive drug treatment in prison and have few job prospects and educational opportunities when they leave. This legislation will help implement public safety realignment and protect our communities by reserving prison and jail space for more serious offenders," he said.

"This bill merely revises the charge from a felony to a misdemeanor," Leno told the Chronicle Tuesday. "It will save the counties about $160 million a year, according to the Legislative Analyst's Office, and the state another $65 million. Thirteen states have already done this, and they have higher rates of treatment and lower rates of drug use and property and violent crime."

"The war on drugs has been an abysmal failure we can no longer afford," said Allen Hopper, Criminal Justice and Drug Policy Director at the ACLU of California. "California voters agree the punishment should fit the crime, and a felony for simple possession is ridiculous. Those who are addicted to drugs need treatment, not a jail cell and a felony conviction with severe and life-long consequences, like reduced access to job opportunities, student loans, and small business loans."

Drug possession would be a misdemeanor in California rather than a felony if SB 1506 passes (wikimedia.org)
"The goal is to make the penalty closer to what people think it should be," said Margaret Dooley-Sammuli, senior policy analyst for criminal justice and drug policy at the ACLU of San Diego and Imperial Counties. "People think a felony charge is too harsh, and there is pretty universal support for treating drug use more as a health issue and prioritizing law enforcement resources for people convicted of serious offenses," she told the Chronicle.

The push for the bill is picking up steam, Dooley-Sammuli said.

"We have quite a broad coalition, and the list of groups coming out in support is long and getting longer by the day," she said. "We have faith, treatment, and housing groups; we have job placement organizations; we have family members and other folks who realize the this penalty is just too harsh. We've just added two more: California Attorneys for Criminal Justice, a defense attorneys' group, and the William Velasquez Institute, a group that will bring Latino communities into the process of helping to shape policies that impact them."

While an impressive coalition is budding to support the bill, and while polls suggest strong public support for such a measure, not everybody is on board, particularly law enforcement. 

"We're opposed to this bill for a variety of reasons," said John Lovell, a Sacramento attorney who is a lobbyist for the California Police Chiefs Association. "We don't think it's appropriate to reduce these offenses to misdemeanors because of severe unintended consequences. No one in California is being incarcerated for a first or second drug possession offense; instead, they are sent to a Proposition 36 drug treatment program," Lovell told the Chronicle.

"We believe this will create a disincentive for people to participate in a Prop 36 treatment program, and that is not a good thing," the lobbyist continued. "To the extent we can have a successful treatment result, that is one less person in a cycle of drug addiction."

"Oh, please!" exclaimed Dooley-Sammuli. "Lovell said the same kinds of things when Prop 36 passed. They were saying the sky would fall, that nobody would be in treatment and there would be crime in the streets, but the crime rate continues to go down."

Given the current fiscal constraints on the state criminal justice system, the "real world" result of downgrading drug possession to a misdemeanor would be that drug offenders essentially walk free, Lovell said.

"Say a person is convicted of meth possession," he said. "He is told he has a choice of Prop 36 treatment or going to the county jail, but the jails are all filled to capacity, and nobody does any time for a misdemeanor offense. An attorney representing such as person is ethically bound to say 'If you refuse treatment, there is no real sanction at all,'" Lovell maintained. "These will be misdemeanants, not felons, not under supervision and not breaking the cycle of addiction, which means the crimes they commit to purchase their dope will continue," he said. "It's not like you get a scholarship to pay for the cost of your meth."

But the bill provides for up to three years probation -- five years in some cases -- and would allow judges to order drug treatment as a condition for probation.

Saying that the state will benefit from saving money on not prosecuting drug users as felons is "a hackneyed argument," Lovell said. "If you say it will save money because these people aren't being supervised, yes, it will save that money, but if they're not being supervised they're more likely to go out and commit the economic crimes addicts commit. It's not so much a savings as a cost shift," he argued.

"We do not see this bill as yielding any positive public policy results," Lovell summed up.

"None of California's existing programs to make treatment available will be affected by this," countered Dooley-Sammuli, "and counties will have the freedom to use these dollars more wisely to make treatment more available. Compared to five years ago, treatment dollars have absolutely been gutted, and we're really working to identify ways to preserve funding so we can protect treatment. It's really disingenuous for our opponents to talk about this getting in the way of access to treatment. If Jerry Lovell is worried about access to treatment, we call on him to support this bill."

Leno responded more tersely to Lovell's arguments. "He's a dogmatic extremist. If you think drug use is a bad thing, the states that have actually lowered drug use are not felony states," the San Francisco Democrat said. "By making these offenses misdemeanors, we can remove barriers to housing, education, and employment -- the very things a felony conviction makes it more difficult to obtain, those unintended consequences of a felony conviction."

Now, it's up to the measure's supporters to get it moving. The bill will be heard in the Senate Public Safety Committee next month. For it to pass this year, it has to get out of committee, win approval in the Senate, and then go through the same process in the Assembly. And it has to happen by August, when the session ends.

"It's a very tight time-frame," said Dooley-Sammuli. "We're still educating people about this bill, but this is a serious effort, and we believe we can get that support with the right coalition partners and more education. Sen. Leno doesn't introduce bills just to make a statement, but because he thinks they have a political chance."

"We're looking for support anywhere and everywhere," Leno said. "We are talking to law enforcement agencies to educate them that there is no data showing that felony convictions reduce drug use."

There's clearly some work to be done on that score. But more important is getting actual legislators to vote for the bill.

"I believe there will be significant, and hopefully sufficient, Democratic support for the bill," said Leno, "and I'm also hoping Republican colleagues will see we can't waste the money and must invest in evidence-based programming."

California has the chance to pass a smart, cost-effective, and humane drug sentencing reform bill, but the clock is ticking.

The other states that treat drug possession as a misdemeanor are Delaware, Iowa, Maine, Massachusetts, Mississippi, New York, Pennsylvania, South Carolina, Tennessee, West Virginia, Wisconsin, and Wyoming, as well as the District of Columbia.

Sacramento, CA
United States

Chronicle Book Review: "The Marijuana Conviction"

 

http://stopthedrugwar.org/files/the-marijuana-conviction-200px.jpg
The Marijuana Conviction: A History of Marijuana Prohibition in the United States, by Richard J. Bonnie and Charles H. Whitebread II (1999, Lindesmith Center Press, 368 pp.)

I don't customarily review books that aren't hot off the presses, and The Marijuana Conviction is even older than that 1999 publication date above, considerably so. In fact, it was originally published by the University of Virginia Press in 1974, back when Richard Nixon was still president. But we got our hands on a bunch of copies of it that we intend to share with our supporters, so I thought I would take a look.

I'm glad I did. Although I consider myself fairly well-read on the topic of marijuana law reform, I came away with a refreshed appreciation for the tumultuous social currents and historical happenstance that forged pot prohibition in the first place, the role of race and class, the opinion-shaping power of early media and political opportunists, and the bureaucratic maneuvering that enabled Harry Anslinger to shepherd the 1937 Marijuana Tax Act into law, enacting for the first time a federal ban on marijuana.

This is a foundational text for serious scholarship about the making of marijuana policy in America. Bonnie and Whitebread were University of Virginia law professors, and Bonnie had just finished a stint as Assistant Director of the Shafer Commission, which had been appointed by Nixon to examine the nation's drug policies (and was ignored by him when he didn't like what it had to say). The Marijuana Conviction first took form as an appendix to the commission report in 1972, and Bonnie and Whitbread spent the next year or so expanding and revising it into its published form.

We're talking primary documents here. Departmental memoranda from the Federal Bureau of Narcotics, congressional testimony, state legislative hearings, and the like. It may sound dry, but it will be deeply fascinating and thought-provoking for serious marijuana policy wonks and even just pot history buffs.

And it's not all dusty documents. There is detailed social and cultural history, and there are extensive references to the lurid and outlandish press coverage of murderous marijuana maniacs and the campaign that percolated up from the states to criminalize the demon weed.

For that was the original charge against marijuana: It will enslave you, it will drive you to commit horrible crimes, and it will drive you insane. Bonnie and Whitebread devote much space to describing how such a view of marijuana emerged, and they tie it squarely to attitudes toward racial outsiders -- first the Chinese and the opium laws, then the Mexicans and blacks with the marijuana laws.

It doesn't paint a very appealing picture of American political decision-makers, whether it's lawmakers in Montana laughing as they voted to outlaw marijuana after testimony that consisted of a joking anecdote about how after Mexicans smoked it, they thought they were the Emperor of Mexico and wanted to assassinate their political enemies, or bureaucrats in Washington -- and not just Anslinger -- who deliberately covered up or suppressed information that didn't fit the emerging "marijuana menace" consensus.

It does, however, provide fascinating insight on the back-and-forth, both between Washington and the states and among the competing bureaucratic and political interests in Washington as that consensus concretized in harsh state and federal laws against marijuana.

But reading The Marijuana Conviction now, nearly four decades after the fact, leaves one feeling appalled and frustrated, too. Because not only do Bonnie and Whitebread describe the prohibitionist marijuana consensus -- that pot is addictive, criminogenic, and psychosis-inducing -- of the 1920s and 1930s, they also describe its disintegration in the 1960s. Of course, that consensus only crumbled when marijuana use spread to middle- and upper-class white youth, provoking not only the concern of well-placed parents, but also the interest of scientists and researchers who were just unable to find all of those pot-addled, blood-stained psychos.

But crumble it did. Almost a half century ago, the supposed scientific and medical basis for marijuana prohibition was exposed for the sham it was. At the time, Bonnie and Whitebread were too cautious, too professorial, to call for immediate "regulation" instead of prohibition. But as a first step, they demanded, at an absolute minimum, decriminalization.

In the decade in which they wrote, the reform impetus flourished, and 11 states actually did decriminalize. But since then, progress stalled, then came to a screeching halt during the Reaganoid dark ages of "Just Say No" and "This is your brain on drugs." It is only in about the last 15 years that the marijuana reform movement has begun moving forward again, now with ever increasing momentum.

But even with all that's gone on since the groundbreaking passage of Proposition 215 in California in 1996, marijuana is still illegal. The number of states that have even decriminalized is still in the teens, and while Bonnie and Whitebread waxed indignant about 250,000 people being arrested for pot each year, that number is now north of 800,000.

The Marijuana Conviction can't tell us how we can get out of this mess, although a close reading should yield some insights, but it certainly and artfully shows how we got into it. This is a must-have for any serious student of marijuana's bookshelf.


US Law Enforcement Officials Call on Canadian Prime Minister to Legalize Marijuana

WASHINGTON, DC -- A high-profile group of current and former law enforcement officials from the United States is calling on the Canadian government to reconsider the mandatory minimum sentences for minor marijuana offenses proposed in Bill C-10, arguing that the taxation and regulation of marijuana is a more effective policy approach to reducing crime.

On Wednesday, the law enforcers released a letter outlining their concerns, addressed to Prime Minister Stephen Harper and Canadian senators. It is signed by more than two dozen current and former judges, police officers, special agents, narcotics investigators and other criminal justice professionals, all of whom are members of the group Law Enforcement Against Prohibition (LEAP). The letter strongly reinforces the failure of U.S. crime policies that those proposed in the Canadian federal government’s Bill C-10 legislation seem to be modeled on.

“Through our years of service enforcing anti-marijuana laws, we have seen the devastating consequences of these laws,” the letter states. “Among the greatest concerns is the growth in organized crime and gang violence. Just as with alcohol prohibition, gang violence, corruption and social decay have marched in lockstep with marijuana prohibition.”

“We were deeply involved with the war on drugs and have now accepted, due to our own experience and the clear evidence before us, that these policies are a costly failure,” the letter continues. “Marijuana prohibition drives corruption and violence and tougher laws only worsen the problem.”

Bill C-10, titled “The Safe Streets and Communities Act,” is currently being heard by the Senate Committee on Legal and Constitutional Affairs. Among other proposals, the bill calls for stricter mandatory minimum sentences for minor marijuana offenses, including minimum six-month sentences for growing as few as six marijuana plants.

“The Canadian government believes the answer is to get tougher on criminals,” said Norm Stamper, retired chief of police in Seattle, Washington. “But as we’ve learned with our decades-long failed experiment with the ‘war on drugs,’ the stricter sentencing proposed in the bill will only serve to help fill jails. It will not reduce harms related to the illicit marijuana trade, make Canadian streets safer or diminish gang activity.”

Said retired Washington State Superior Court Judge David Nichols: “Policies similar to those in the U.S. and now under consideration in Canada have been costly failures in the United States, wasting tax dollars and bankrupting state budgets. Following our path presents obvious and significant risks to Canadians.”

Among the 28 signers of the letter are many law enforcement officials working in border areas. They pointed to the illegal cross-border marijuana trade as sustaining gang activity in the region.

“Organized crime groups move marijuana to the U.S. from British Columbia and return with cocaine and guns,” said Stamper. “Prohibition continues to fill the coffers of organized criminals, making communities on both sides of the border less safe.”

Eric Sterling, who helped the U.S. Congress write the federal mandatory minimum sentencing laws, cautions: “As counsel to the U.S. House Judiciary Committee during the 1980's, I played a major role in writing the mandatory minimum drug sentencing laws which later turned out to not only be ineffective in reducing drug use, but which directly contributed to the disastrous overincarceration problem in this country. I urge policy makers in Canada to learn from our mistakes.”

Canadian Senator Larry Campbell, a member of LEAP’s advisory board and a former member of the RCMP and its drug squad, added: “I am hopeful that my Senate colleagues will listen to the voice of experience, and take into account the advice from leading U.S. law enforcement officials to avoid mandatory minimum sentences. The U.S. and many of its citizens have suffered greatly due to the inflexible and dogmatic nature of mandatory minimum sentences, and Canada would be wise to learn from and avoid that costly and socially destructive mistake.”

U.S. Becoming More Progressive than Canada with Marijuana Policy

While Canada moves towards stricter sentencing with Bill C-10, many states in the U.S. are shifting in the opposite direction, toward control and regulation of the marijuana trade. The law enforcement officials pointed to the 16 U.S. states and the District of Columbia that have already passed laws allowing medical use of cannabis, the 14 states that have taken steps to decriminalize marijuana possession and the initiatives to fully tax and regulate marijuana that are likely to appear on statewide ballots this November in Washington State, Colorado and possibly California.

“We assume this news will not make you consider closing the borders with the United States,” the law enforcement officials write in their letter.

For a copy of the law enforcement letter, please visit http://www.leap.cc/wp-content/uploads/2012/02/regulation-in-canada.pdf

Law Enforcement Against Prohibition (LEAP) represents police, prosecutors, judges, prison wardens, federal agents and others who want to legalize and regulate marijuana and other drugs after fighting on the front lines of the "war on drugs" and learning firsthand that prohibition only serves to worsen addiction and violence.

More info at http://www.CopsSayLegalizeDrugs.com.

 

# # #

 

FOR IMMEDIATE RELEASE: February 22, 2012

CONTACT: Tom Angell, media@leap.cc or Steve Finlay, steve.finlay@leap.cc

Location: 
Canada

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