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US Supreme Court Upholds Drug Dog Search of Truck

The US Supreme Court Tuesday upheld the use of police dog's sniff of a truck, finding that training and testing records were sufficient indicators of the dog's reliability and gave police probable cause for the search. The high court in 2005 upheld the legality of highway drug dog searches; in this case, the court focused on the reliability of drug dog searches.

In deciding the case, the high court reversed a decision from the Florida Supreme Court. The Florida court had held that a wide array of evidence was necessary to establish probable cause for the search, including field performance records that would indicate how many times the dog had falsely alerted. Without such records, the Florida court held, police could not establish probable cause.

Tuesday's ruling came in Florida v. Harris, in which Clayton Harris had been pulled over by a police officer in Liberty County in 2006. The drug dog, Aldo, alerted to the truck's door handle, the officer searched the truck, and methamphetamine precursor chemicals were found. Clayton was arrested on meth-related charges.

Harris was again pulled over by the same officer while out on bail, and Aldo again alerted on his vehicle. This time the vehicle search came up empty. Harris's attorneys challenged Aldo's reliability in part because of this second alert that turned up nothing. The Florida Supreme Court agreed with their argument that the dog's performance in the field needed to be assessed in order to determine probable cause for the search.

But not the US Supreme Court. It unanimously reversed the decision.

A drug dog's "satisfactory performance" in a certification or training program provided sufficient probable cause to trust its alert, Justice Elena Kagan wrote for the majority. "The question -- similar to every inquiry into probable cause -- is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime," Kagan wrote. "A sniff is up to snuff when it meets that test."

The case is one of two Florida drug dog cases before the Supreme Court this session. In the other, the high court takes up the question of whether a drug dog can sniff the front doorstep of a home without a search warrant. The Supreme Court has upheld drug dog searches of vehicles on the highway and packages at delivery service warehouses, but in other cases has shown greater deference to Fourth Amendment requirements at residences.

Washington, DC
United States

AZ Court Says You Don't Have to Be High to Get a DUI

An Arizona appeals court has ruled that marijuana users don't need to be actually impaired to be successfully prosecuted for driving under the influence. The ruling came Tuesday in the case of a man who tested positive for an inactive marijuana metabolite that remains in the body for weeks after the high from smoking marijuana has worn off.

The ruling in Arizona v. Shilgevorkyan overturned a decision by a superior court judge who said that it didn't make sense to prosecute people for driving under the influence if they're not actually under the influence.

The ruling turned on a close reading of legislative intent in writing the state's DUID law. The legislation specified the presence of "the metabolite" of THC, and Shilgevorkyan had argued that lawmakers meant "hydroxy-THC, the metabolite which would indicate current impairment, not carboxy-THC, an inactive metabolite that indicates only usage some time in the past.

The appeals court disagreed, citing its decisions on earlier challenges to the DUID. "The legislature intended to create a 'per se prohibition' and a 'flat ban on driving with any proscribed drug in one's system," the court noted. "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Because the law was drafted to protect public safety, the appeals court said, it should be interpreted broadly to include inactive as well as active compounds.

But Superior Court Commissioner Myra Harris, who had ruled on Shilgevorkyan's behalf, warned in her earlier opinion that the appeals court's interpretation of the law would result in people, including out of state medical marijuana patients, being charged with DUI when they are not impaired.

"Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona," Harris said in her 2012 ruling upholding the dismissal. "It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier."

Shilgevorkyan's attorney said he plans to appeal to the state Supreme Court.

Phoenix, AZ
United States

Michigan Supreme Court Rules Against Medical Marijuana Shops

In a ruling issued Friday, the Michigan Supreme Court held that it is illegal to sell medical marijuana through dispensaries. That means Michigan patients will either have to grow their own or rely on a designated caregiver, who is limited to providing for no more than five patients.

no dispensaries for Michigan (wikimedia.org)
The 4-1 decision in Michigan v. Compassionate Apothecary (scroll down past the syllabus) upheld an earlier appellate court finding that the state's voter-approved 2008 medical marijuana law does not allow people to sell medical marijuana to each other, even if they are registered patients.

The medical marijuana law says registered patients can possess up to 2 ½ ounces of marijuana and grow up to 12 plants in an enclosed space, but it does not mention dispensaries or otherwise say how patients might obtain their medicine.

"The Court of Appeals reached the correct conclusion that defendants are not entitled to operate a business that facilitates patient-to-patient sales of marijuana," wrote Chief Justice Robert Young for the majority.

The owners of Compassionate Apothecary had argued that their business wasn't illegal because the law allowed for the "delivery" and "transfer" of marijuana, but the high court wasn't buying. The shop could be shut down as a "public nuisance," the court affirmed.

Detroit attorney Matthew Abel, a specialist in the state's medical marijuana law, told the Associated Press the decision had settled the issue in the courts and it was now up to elected representatives to act.

"This is the end of the road. This is it," said Abel. "It will be a mess until the legislature clarifies what kinds of business entities are allowed to exist."

Ardent medical marijuana foe Attorney General Bill Schuette has yet to comment on Friday's decision, but when the appeals court ruled the same way last year, he called it "a huge victory for public safety."

Lansing, MI
United States

New Jersey Supreme Court Protects Rights in Pregnancy Case

The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.

Trenton, NJ
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

Medical Marijuana Update

The agonizingly slow pace of implementing medical marijuana laws is causing problems in several states, while in California, the never-ending battles continue. Let's get to it:

Arizona

Last Thursday, dispensary operators asked lawmakers to crack down on compassion clubs, unregulated businesses that seek a "fee" from patients who seek to obtain medical marijuana. There are no provisions for the clubs in the Arizona Medical Marijuana Act, but they have popped up statewide as patients waited for the opening of dispensaries, which were delayed because of prolonged legal battles between medical marijuana advocates and recalcitrant state and county officials. At a news conference outside the State Capitol, dispensary owners and medical marijuana patients joined with advocates to ask that police, prosecutors and legislators target the unregulated clubs so patients receive their medication in a controlled and secure environment.

Last Friday, Maricopa County appealed to the state Supreme Court to decide whether federal drug laws preempt the state's medical marijuana law. The move comes after a Maricopa County Superior Court judge ruled last month that federal drug laws don't stand in the way of public officials implementing Arizona's law.

On Tuesday, Tempe police raided two compassion clubs, arresting the owner. The cops hit Top Shelf Hydro College after purchasing "large amounts" of marijuana there. The name of the other club wasn't mentioned. The clubs are not permitted under state law, but have sprung up as advocates became frustrated waiting for dispensaries to open. Arizona voters approved medical marijuana in November 2010.

California

Last Thursday, US Attorney for Northern California Melinda Haag canceled a public appearance after hearing that she would be met by demonstrators. She canceled her appearance at Golden Gate University "at the last minute" after medical marijuana supporters announced plans to picket her talk. Three days later, at the California NORML conference, Rep. Tom Ammiano (D-San Francisco) took aim at the unpopular prosecutor, saying "I'm sorry to hear a house fell on her sister," a not-so-veiled reference to the Wicked Witch of the West in The Wizard of Oz.

On Monday, LA medical marijuana activists said they would support a city council dispensary initiative instead of moving forward with their own similar one. Representatives for Americans for Safe Access, the United Food and Commercial Workers Union and the Greater Los Angeles Collectives Alliance announced that they plan to campaign on behalf of the city’s proposal, which the city council is expected to vote this week to place on the ballot. That measure would only allow shops that opened before a 2007 moratorium to operate. Another initiative, also going to the voters, would allow most of the 500 or so currently existing dispensaries to stay open.

On Tuesday, Butte County released draft cultivation rules. The new draft ordinance includes a six mature plant limit on county parcels between .4 and 1.5 acres and an 18 mature plant limit on parcels between 1.5 and 3 acres, among other things. A public hearing is set for February 12.

Also on Tuesday, the San Diego city council voted not to drop pending dispensary cases as Mayor Bob Filner ordered earlier this month, but will instead maintain the status quo until he introduces a new ordinance to regulate them within 30 days. City officials said a zoning ordinance similar to one adopted by the council in 2011 would be brought up for discussion. But that measure triggered a successful petition drive to repeal it.

Massachusetts

Last Wednesday, the Malden city council approved an ordinance restricting the location of medical marijuana businesses. They cannot operate in commercial or residential areas, just industrial ones.

Also last Wednesday, the Peabody city council voted to ban dispensaries. The unanimous vote came after Mayor Ted Bettencourt worried aloud that the dispensaries would send the wrong message to Peabody youth. It becomes the eighth town in the state to ban dispensaries.

Michigan

On Wednesday, the state appeals court ruled that patients can give small amounts of marijuana to other patients without breaking the law. The appeals court agreed with a Barry County judge who had dismissed charges against Tony Green after he provided less than 2 ½ ounces of medical marijuana to Al Thornton in November 2011. Both were qualified patients. The appeals court ruled in 2011 that sales are illegal; that case is pending before the state Supreme Court.

New Jersey

Last Thursday, a Superior Court judge refused to appoint a monitor to supervise the state's stalled medical marijuana program, instead sending the case to the Appellate Division. Two patients had sued the state Department of Health last year, saying they were denied medication because the department took nearly three years to get the program under way. Their lawyers sought a monitor and court orders compelling corrective action. Now they will have to seek results from the appellate court.

Washington

Last Thursday, the Longview city council passed zoning restrictions on collective gardens. The measure passed by the council restricts them to the Mint Farm Industrial Park and an area along Industrial Way. The city has a moratorium on the gardens, but it expires in March, and without the zoning restrictions, people would have been able to plant gardens anywhere after the moratorium expired.

DC Appeals Court Denies Marijuana Rescheduling [FEATURE]

In a ruling Tuesday, the Court of Appeals for the DC Circuit denied a petition seeking to reschedule marijuana. The court held that while petitioners had presented some evidence of marijuana's medical efficacy, there was not enough to override the federal government's decision to place marijuana on Schedule I, the most restrictive classification.

E. Barrett Prettyman US Courthouse and William B. Bryant Annex
Schedule I drugs, which also include heroin, LSD, and ecstasy, are those that are considered to have no medical use and a high potential for abuse. Marijuana was placed in Schedule I when Congress passed the Controlled Substances Act in 1970, and the DEA and FDA have consistently refused efforts to reschedule it.

The ruling came in Americans for Safe Access v. Drug Enforcement Administration. It comes more than 10 years after the Coalition for Rescheduling Cannabis, led by Jon Gettman, originally filed its petition in October 2002 and 40 years after NORML first filed a petition seeking to reschedule the herb. The Coalition petition was denied in 2011, after ASA sued the Obama administration for delaying its response. The current appeal was the first time in two decades that a federal court has reviewed the issue of whether there exists adequate scientific evidence to reschedule marijuana.

The first challenge for petitioners was that of standing to sue. The presence of disabled Air Force veteran and Veterans for Medical Cannabis Access member Michael Krawitz among the petitioners provided that standing. Krawitz, who has tussled with the Department of Veterans Affairs over his use of medical marijuana, "has suffered injury-in-fact because he must shoulder a financial cost for services he would otherwise obtain for free of charge from the VA" and thus has standing to sue, the court held.

But that was just the threshold question. On the substantive issue of rescheduling marijuana, the court came down squarely on the side of the federal government.

"The question before the court is not whether marijuana could have some medical benefits," wrote Senior Circuit Court Judge Harry Edwards for the majority. "Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious… On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a 'currently accepted medical use.' The DEA's regulations… define 'currently accepted medical use' to require, inter alia, 'adequate and well-controlled studies proving efficacy.' … We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist."

"The court says the DEA didn't act arbitrarily and capriciously, but if that wasn't arbitrary and capricious, I'm going back to the dictionary," said a frustrated Krawitz. "This is an issue with 70% supporting change, yet nothing happens. We have a handful of champions in Congress, but where is one person in the federal government who represents us? How can there be so little integrity at the National Institutes for Health and the FDA, where they are supposed to be there to protect our interests?"

"We're stuck in a Catch-22 -- the DEA is saying that marijuana needs FDA approval to be removed from Schedule I, but at the same time they are obstructing that very research," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "While there is a plethora of scientific evidence establishing marijuana's safety and efficacy, the specific clinical trials necessary to gain FDA approval have long been obstructed by the federal government itself."

"It's more of the same from the federal courts. I'm disappointed, but not surprised," said Dale Gieringer, longtime head of California NORML. "There has been a long line of court decisions affirming the federal government's dictatorial power to make arbitrary decisions about drugs. Ironically, this decision comes on the same day as the 40th anniversary of Roe v. Wade. Women in this country have the right to terminate the live of their fetuses, but not to smoke a joint."

"To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), which appealed the denial of the rescheduling petition in January of last year. "The Court has unfortunately agreed with the Obama Administration's unreasonably raised bar on what qualifies as an 'adequate and well-controlled' study, thereby continuing their game of 'Gotcha.'"

ASA said it will seek an en banc review of the decision by the full DC Circuit and will go to the Supreme Court if necessary. The group said it will argue that the Obama administration has acted "arbitrarily and capriciously" by shifting its definition of what constitutes "medical efficacy." The administration now argues that Stage II and III clinical trials are necessary to show efficacy, while ASA contends that the more than 200 peer-reviewed studies it cited in legal briefs in the case meet the standard.

"The Obama Administration's legal efforts will keep marijuana out of reach for millions of qualified patients who would benefit from its use," said Elford. "It's time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office."

While ASA pursues its appeals in the courts, it is also trying to turn up the heat on Congress and the administration. With rescheduling through the courts blocked -- at least pending a favorable ruling on appeal -- that is where the action will be.

"I'm not optimistic that the courts are going to change their position," said Gieringer. "That means we will have to put pressure on the administration or Congress to do it."

But it's important to see that rescheduling is not an end in itself, but a means, said Gieringer.

"Rescheduling in itself would accomplish very little in the real world," he pointed out. "It would not end the federal-state conflict on marijuana, and even if it were rescheduled, there is still no FDA-approved supply. All of the marijuana out there today would still be an illegal controlled substance without FDA approval."

Marijuana policy reform is not just about real world effects; it is also about perceptions, and rescheduling marijuana would have been something of a game changer, as Gieringer noted.

"Symbolically, of course, it would have been huge," he said. "It would open the way for prescriptions and help unblock research -- the controls on Schedule II drugs are not nearly as fearsome. Still, rescheduling would have been a baby step, but a lot of other stuff has to happen, and that requires an act of Congress, and I haven't seen any sign of that."

But the federal courts have so far made clear that they will defer to Congress and the executive branch on these issues. That means that's where the battle will have to be won.

Washington, DC
United States

Federal Magistrate Rules for Harborside Medical Marijuana Dispensary

A federal magistrate in Oakland Monday ruled that landlords for the Harborside Health Center cannot stop it from selling medical marijuana in their properties in the cities of Oakland and San Jose. Federal Magistrate Maria-Elena James issued an order blocking the landlords from forcing Harborside to close its doors.

Harborside is the world's largest medical marijuana dispensary, serving 108,000 registered patients at its two locations. It was targeted by federal prosecutors as part of their ongoing crackdown on medical marijuana providers in states where it is legal.

Federal prosecutors targeted Harborside by threatening its landlords with seizure of their properties. In a bid to fend off asset forfeiture actions, the two landlords went to federal court to try to stop Harborside from engaging in "any unlawful activity," which, under federal law, includes selling medical marijuana.

But Magistrate James ruled that the landlords had no right to pursue such an action under federal law and she challenged the landlords' claims that their property values would be harmed by the sale of medical marijuana. Harborside has operated at the Oakland property since 2006 and in San Jose since 2009.

"Any damage or threat of harm to the (properties) resulting from Harborside's operations would have occurred when Harborside began its operations at the Oakland and San Jose locations," she wrote. "There is nothing in the record indicating that Harborside's continued operation compromises the existence, value or title of either the Oakland or San Jose property. Any argument about the urgency of stopping Harborside's activities rings hollow."

Harborside was joined in court by the city of Oakland, which argued that the federal government has missed the statute of limitations in the case and that closing Harborside would create a public safety risk by creating a black market for formerly available medical marijuana. The court did not rule on the city's motion to immediately enjoin the federal government from shutting down Harborside, but set a date for more hearings on that issue.

"We are grateful that Judge James carefully considered the facts and arguments in the Harborside case, and decided to grant us our day in court," said Harborside executive director Steve DeAngelo. "We have always believed that a Bay Area jury will recognize the value that Harborside brings to the community, and refuse to allow the federal government to seize the properties where we are located. We look forward to proving our case in front of a jury, and continue to believe we will prevail. In the meantime, we ask the Department of Justice to immediately freeze enforcement actions against Harborside and any other cannabis providers acting in full compliance with state law. Our nation's law enforcement officers should concentrate on real crime."

Harborside isn't out of the legal woods yet, though. The federal effort to shut it down remains alive, even though the dispensary won this skirmish. It has stated repeatedly that it will fight the battle to the end, and on that score, at least, nothing has changed.

"We are gratified that Judge James listened to and analyzed the parties' arguments so thoroughly and has now rendered an opinion that will ensure Harborside has the right to present its case to a jury," said Harborside attorney Henry Wysocki. "Despite the government's efforts to shortcut the case, Harborside will now be able to fully defend itself at trial. That is all we had asked, and the court has now agreed. The stage is now set for a jury trial on the underlying issues of the litigation, which will probably take place in about one year."

Oakland, CA
United States

ACLU Fighting Decision in Cell Phone Tracking Case [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

The American Civil Liberties is challenging a federal appeals court ruling that it is legal for the DEA and other law enforcement agencies to track GPS-equipped cell phones without a warrant. The group has filed an amicus brief urging the full 6th US Circuit Court of Appeals to reconsider the ruling of a three-judge panel last month in US v. Skinner, with ACLU attorney Catherine Crump warning that "the Sixth Circuit ruling in August in Melvin Skinner's case undermined the privacy rights of everyone who carries a cell phone."

Melvin Skinner was suspected of being part of a massive marijuana trafficking organization. Without getting a warrant or showing probable cause, the DEA forced Skinner's cell phone company to provide them with his GPS coordinates continuously as they tracked him cross-country for three days. Using that data, they tracked him down in Texas, searched his mobile home, found 1,100 pounds of marijuana, and arrested him on drug charges. Skinner was convicted and then appealed, arguing that the GPS tracking of his cell phone without a warrant violated his Fourth Amendment rights.

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his 'pay-as-you-go' cell phone, the kind of phone called 'burners' that drug dealers often use for business and quickly dispose of," Judge John Rogers wrote in the majority opinion in Skinner. "If a tool is used to transport contraband and it gives off a signal that can be tracked, certainly the police can track the signal." 

A well-known tool of the trade for those in the drug underworld, 'burners' were also popularized by the HBO show The Wire, which hyped the notoriety of the prepaid phones in its series.

Legal experts say if the Sixth Circuit decision stands it would severely undercut the US Supreme Court decision this past January in the case of accused drug dealer Antoine Jones. In US v. Jones, the Supreme Court issued a historic decision prohibiting law enforcement from tracking vehicles with GPS device without first obtaining a search warrant -- a tactic the feds used against Jones case when the FBI and DEA installed a GPS device on his SUV for 28 days.

Jones' life sentence without parole was reversed and he was remanded for retrial scheduled in 2013. The chilling effect of the Supreme Court ruling in the Jones case forced the FBI to pull the plug on 3,000 GPS tracking systems that had been secretly installed on vehicles across the nation.

"While the Jones case imposes constitutional restrictions on law enforcement to track vehicles with warrantless GPS devices, the Sixth Circuit has now held that agents can engage in even more intrusive surveillance of cell phones without implicating the Fourth Amendment at all," the ACLU noted in its brief to the court.

In their efforts to overturn Skinner's lengthy prison sentence, his attorneys argued that the use of the GPS location information in the cell phone that led to his arrest violated the Fourth Amendment prohibition against warrantless searches and seizures. The primary question in the case was whether Skinner had a "reasonable expectation" of privacy in the data that his cell phone emitted.

The Sixth Circuit ruling comes exactly a month after a Congressional inquiry discovered how law enforcement made over 1.3 million requests for cell phone data last year, seeking subscriber information, text messages, location data and calling records. If upheld, it would be a major boost for government surveillance power as state and federal prosecutors shift their focus to warrantless cell-towers to ferret out cell phone data and track the GPS signals in cell phones without a warrant in a bid to get out from under the Supreme Court's ruling in that police cannot use warrantless GPS to track vehicles.

Lawyers and law enforcement officials agree there are too many conflicts over what information the police are entitled to legally get from wireless cell carriers.

"It's terribly confusing, and understandably so, when federal courts can't agree," cell phone industry attorney Michael Sussman told the New York Times earlier this year. The companies "push back" often when confronted with "urgent" requests for cell phone data, he said. "Not every emergency is an emergency."

US 6th Circuit Court of Appeals Judge John Rogers (wikimedia.org)
Without a doubt, cell phone data and GPS signals in cell phones are hot commodities in the surveillance business. Business is booming for wireless carriers who sell customers data and cell phone locations to police either by the hour or for one big fee.(See our May story on the practice and the legal challenges to it here.)

But law enforcement is especially well-placed to take advantage of the data. With a simple judge's order, it can easily obtain reams of data and the GPS location of a target's cell phone without a warrant.

As the Times noted, tracking GPS signals in cell phones has become such a tempting technique that the Iowa City Police Department had to issue a stern warning to officers: "Do not mention to the public or the media about the use of cell technology or equipment used to locate targeted subjects and its use should be kept out of police reports."

Similarly, a 2010 training manual written by California prosecutors informed investigators on "how to get the good stuff" using technology. Another police training manual describes cell phones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

The easy availability of cell phone data could spell big trouble for accused drug dealer Antoine Jones as he prepares for retrial next year. This time around, the feds will not use GPS evidence from his vehicle because the Supreme Court prohibited that in his case last year, but it plans to use Jones' cell phone data and the GPS signal in his phone as evidence to connect him with numerous kilos of cocaine.

On September 4, the Obama administration, citing a 1976 Supreme Court precedent, told the federal judge in Jones case that such data, like banking records, and cell phone records, are "third-party records," which means customers have no right to keep it private.

Jones' attorney, Eduardo Balarezo, disagreed. "The government seeks to do with cell site data what it cannot do with the suppressed GPS data that's already been ruled illegal by the Supreme Court," he argued in his brief in the case.

Jones, who is still behind bars despite his victory at the Supreme Court because the government insists on retrying him, is steadfast.

"I am going to fight this all the way to the end," he told the Chronicle.

Aside from the Fourth Amendment implications of the Skinner decision, the case raises another question: Did the courts misinterpret the arcane federal laws governing electronic surveillance?

Jennifer Granick, director for civil liberties, the Stanford Law School Center for the Internet and Society
A Stanford University attorney who is an expert on the legalities now says even the trial court erroneously applied the wrong "trap and trace" statute in denying to suppress the evidence the DEA used to obtain a court order to track the GPS signal in Skinner's phone.

"It was basically the government's "hybrid theory" of what constituted a legal trace of the phone and the court intrepreted the wrong statute," Jennifer Granick told the Chronicle. "The tracking order the DEA used to track Mr. Skinner's phone was not applied correctly under the statute. Pinging a phone in real time is governed by the Pen Register/Trap and Trace statute. To get a trap and trace order, the government usually needs an order under [the relevant] section."

But as Granick has argued in federal criminal defense seminars, the Communications Assistance for Enforcement Act (CALEA) prohibits use of the pen register authorization to obtain subscriber location information."So, the feds should have gotten a warrant under [a different] rule for this information, but clearly did not," Granick concluded.

The confusion is around whether to apply the Pen Register statute or the Stored Communications Act (SCA). The SCA was used by the judge to authorize the trace on Skinner's phone. Under SCA, police cannot receive the contents of the electronic communication, but, police are allowed to find out "where whom said what."

The advantage for law enforcement, prosecutors and judges in such matters is the fact they often use this reasoning to obtain location data that can easily turn a cell phone into a tracking device without a warrant -- whereas legal experts say it should require a much higher threshold -- like a probable cause warrant.

Granick was surprised to learn the court relied on the SCA instead of the other relevant laws.

"You mean the court authorized real time tracking based on the Stored Communications Act, without even a reference to the Pen Register statute or CALEA?" she asked incredulously. "Well, it's not right, but that's what the court did."

Restrained by the Supreme Court from using warrantless GPS tracking by the Jones case, federal law enforcement and local police are making greater use of cell phone data to track suspects. Whether that is constitutional is still an open question. Federal courts are splitting on the issue of whether the collection of cell phone data and the warrantless tracking information of the GPS signal in a phone is legal. That means the issue is likely headed for the Supreme Court for final resolution.

Meanwhile, it looks like Skinner may have yet another issue to raise on appeal.

Redefining the English Language to Fight the Drug War

http://stopthedrugwar.org/files/scalesofjustice.jpg
The tendency of the courts to trash our privacy rights in a pathetic attempt to prevent marijuana smoking is so routine that I seldom bother even to point it out anymore, but something about this case bugged me just enough to slap it around for a second.

FAIRBANKS, Alaska -- The federal government can obtain suspected marijuana growers' utility records without a warrant.

The 9th Circuit Court of Appeals on Tuesday ruled in the case of a Fairbanks utility, Golden Valley Electric Association, which refused turning over records to the U.S. Drug Enforcement Administration.

GVEA argued the Fourth Amendment protects customers from search and seizure without a proper warrant.

But the appeals court ruled a customer lacks an expectation of privacy in an item, like a business record. [SacBee.com]

Doesn't that just sound silly? In fairness, I've studied enough law to know that the legal definition of a term like "expectation of privacy" is always slowly evolving and doesn't necessarily mean what a random person would think it to mean. But come the hell on. Once we reach point where they're telling us with a straight face that we have no "expectation of privacy" with regards to our business records, well, that's just too stupid for school.

Unfortunately, it's really rather consistent with how the courts treat our privacy rights, and the decision of how much privacy we can reasonably expect is not ours to make. Courts have consistently ruled, for example, that information you share with a third party carries no expectation of privacy because you're assuming the risk that someone will turn that information over to the government. I disagree.

Rather obviously, we wouldn't have to worry about the government obtaining our information from third parties if the government hadn't granted itself the authority to collect said information and then introduce it as evidence against us in court. I wouldn't have to worry about third parties carelessly disclosing my private information if such information were legally inadmissible as it ought to be.

When I hear the term "expectation of privacy" I think of the physical boundaries that separate public from private. I don't expect privacy with regards to my purchases at the grocery store, or the content of a conversation on a crowded street. It's well understood that any crime committed in "plain view" is fair game for police, even if they have to use binoculars to get a good view. I even sort of sympathize with allowing police to search your trash, since you left it outside where anyone could walk off with it.

But anyone can't just walk off with my utility bills. Stealing mail is a crime, after all. To say that I have no expectation of privacy with regards to that information is preposterous. Yes, the utility company could give my information to the police, but so could a neighbor who steals my mail. Either way, I'm getting screwed by somebody and it's not my fault for expecting privacy.

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