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Probable Cause: Washington Supreme Court Rules Marijuana Smell in Vehicle Not Enough to Arrest All Occupants

The Washington Supreme Court ruled July 17 that police cannot arrest passengers simply for being in a car that smells of marijuana. The unanimous decision overturned a 29-year-old precedent allowing police to search or arrest passengers if they smelled pot near a car.
The case, State v. Grande, began with a 2006 traffic stop in Skagit County. Driver Lacee Hurley and passenger Jeremy Grande were arrested by a state trooper during a traffic stop after he smelled pot coming from their car. The trooper searched the pair, finding a pipe and a small amount of pot on Grande. Both were charged with drug offenses. At a pretrial hearing, Grande's judge ruled there was no specific probable cause for his arrest and suppressed the evidence. But the Skagit County Superior Court overturned that ruling, citing a 1979 appellate court ruling saying the smell of pot smoke coming from a car was probable cause to arrest all the occupants.

But the state Supreme Court said federal case law since 1979 has eroded the legal footing of that decision. Officers need additional evidence that each passenger broke the law, the court held.

"Our cases have strongly and rightfully protected our constitution's protection of individual privacy. The protections... do not fade away or disappear within the confines of an automobile," Justice Charles Johnson wrote for the court.

"We hold that the smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause for arrest. Where no other evidence exists linking the passenger to any criminal activity, an arrest of the passenger on the suspicion of possession of illegal substances, and any subsequent searches, is invalid and an unconstitutional invasion of that individual's right to privacy," the opinion concluded.

The ruling won quick praise from drug reformers and civil libertarians. "As a general statement, it's a step back from the direction that our government has been going as we're veering into a sort of surveillance society," Alison Holcomb of the American Civil Liberties Union's Washington chapter told the Seattle Post-Intelligencer. "It strikes me as refreshing that the court has reaffirmed the values that our constitution calls for."

Seattle Hempfest organizer Vivian McPeak told the newspaper it was not uncommon for people to be arrested, jailed, stigmatized, and have their property seized simply for being in a vehicle with someone carrying or smoking pot. "A lot of people have gone down because of these vehicle offenses," he said. "Being in a car used to be one of those wrong-place, wrong-time kind of situations."

Grande's attorney, David Zuckerman, cheered the ruling, but added it was "unfortunate" it took so long to overturn previous state case law on drug-smell arrests. "I think it's led to an awful lot of innocent people getting handcuffed by the side of the road just because they happened to be in a car that smells of marijuana," Zuckerman said.

Feature: The Vultures Circle Sturgis, But One Man Fights Back

South Dakota's annual Sturgis Motorcycle Rally begins next weekend and, as usual, is expected to draw huge crowds of motorcycling enthusiasts. Eric Sage won't be one of them. Instead, he will be busy suing a South Dakota county, its prosecutors, and a Highway Patrolman over what happened to him when he went last year.

In addition to the hordes of bikers, the rally also attracts the attention of South Dakota law enforcement, with the state pulling large numbers of Highway Patrol troopers from East River to the Black Hills, where they lurk on the sides of highways like vultures waiting for their prey. And, if Highway Patrol statistics are any indication, the hunting is good.
Main Street during Sturgis Rally (courtesy Wikimedia)
Most weeks, state troopers make a handful of felony drug arrests and three or four dozen misdemeanor ones. Last year during Sturgis week, the Highway Patrol bragged that it had made a whopping 38 felony and 192 misdemeanor drug arrests.

Eric Sage and three of his friends made up four of them. As we reported last year, Sage was driving a motorcycle home from the rally while his three friends convoyed with him in a pick-up truck. Sage was pulled over for "weaving" in his own lane by a state trooper, and the pick-up stopped a ways up the road to wait for him. The trooper, Dan Trautman, then asked for and received permission to search the pick-up, and found a pipe and a miniscule amount of marijuana. He then charged all four with possession of paraphernalia, including Sage, who wasn't even in the vehicle.

Sage refused to plead guilty to a crime he had not committed. Then, just before an October dispositional hearing, Gina Nelson of the Pennington County state's attorney's office left a message on Sage's phone: "If you don't plead to 'paraphernalia', we'll charge you with 'ingestion'" -- an offense unique to South Dakota.

South Dakota Codified Law 22-42-15 prohibits ingesting anything except alcohol for the purpose of intoxication, and they'll put you in jail for as long as a year, and fine you as much as $1,000, for wanting to get "high" instead of drunk. It also doesn't matter if you were even in South Dakota when you ingested the drug: "The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused."

The basis for the ingestion charge was the admission by one of the pick-up passengers that she had smoked marijuana with her friends earlier in the day. As Trautman put it on his dashboard video, "You have all just admitted to smoking marijuana." Of course, that was not the case, but it was the basis for the prosecutorial intimidation effort.
Eric Sage
Sage rejected the intimidating plea offer from Nelson and dutifully drove once more the 500-mile round trip from his Nebraska home to appear in court on the appointed day, only to find that Nelson had dropped the charges without bothering to notify him. Out several thousand dollars in legal fees, travel expenses, and lost wages, Sage wanted justice for his bogus arrest and prosecution.

Assisted by long-time activist Bob Newland, head of South Dakota NORML, whom he had contacted shortly after his arrest, Sage sent letters of complaint to the state Department of Public Safety, the South Dakota Bar Association, and the Pennington County Commission. In the latter letter, he also demanded damages.

Not surprisingly, he struck out with state and local authorities. Neither the county commission nor the Highway Patrol would pay his expenses incurred, nor would they even apologize for the mistreatment.

"The county commission gave the first complaint I sent them to the state's attorney's office and -- go figure! -- they lost it," Sage recounted this week. "When I sent a copy to all five commissioners, all I got was a letter from the state's attorney saying he would not respond. The Highway Patrol gave me the finger, basically saying that if I couldn't accept a frivolous charge every now and then, I should stay off their highways."

Sage had slightly better luck with the bar association. After claim and counter-claim by Sage and prosecutor Nelson, the bar found that Nelson had indeed violated two bar association precepts, the duty not to file unfounded charges and the duty not to unduly burden innocent parties. The bar punished Nelson for her prosecutorial misdeeds by "admonishing" her not to do it again.

That wasn't enough for Sage. On Tuesday, he filed a lawsuit against Pennington County, Pennington County Deputy State's Attorney Nelson, her boss, State's Attorney Glenn Brenner, and Highway Patrolman Trautman. The lawsuit seeks damages of slightly over $4,000 to compensate Sage for his malicious arrest and subsequent malicious prosecution.

The prosecutor's office did not respond to a call for comment.

"They wasted my time and my money for something they didn't have the least bit of evidence to prove even took place," Sage said. "If I don't get my money back, at least I'll get my money's worth."

"What happened to Eric Sage was outrageous," said South Dakota NORML's Newland. "To be honest with you, by this point I'm almost numb to their outrages, but after I heard his story, I thought, wow, this one is strange. They do a lot of bogus busts around here, but usually they at least have a shred of evidence."

Whatever the outcome of his civil suit, Sage is through with South Dakota. "I went to Sturgis three times in the past few years, and it just gets worse every year. If you see a cop, they're pulling someone over. They're just fishing for busts and the money they can make off them," Sage said. "I'm not going there again. I'm not going to South Dakota again. If I need to go to North Dakota, I'll go over to Iowa and Minnesota to get there."

"You don't even have to break the law to get stopped," said Newland. "Highway Patrolmen swarm the area between Sturgis and the Buffalo Chip campground a few miles away. For Sturgis week, that stretch of road is the most dangerous in America -- for getting busted. During peak traffic hours, the Highway Patrol is doing nothing but pulling over vehicles."

As for Sage, he has the following advice for anyone planning to head for Sturgis next week. "Good luck with that. Let me know how it turns out, because I won't be going. Know your rights."

Medical Marijuana: Whole Plant Better Than Isolated Components in Pain Relief, Italian Study Finds

Scientists at the University of Milan have published a study finding that whole-plant marijuana extracts provide better relief for neuropathic pain than isolated components of the plant, like THC alone. The research is an intervention in the ongoing debate between medical marijuana supporters and herbal and alternative medicine advocates on one side and the US government, some politicians, and the pharmaceuticalized medicine industry on the other.
Marinol advertisement on Google
"The use of a standardized extract of Cannabis sativa... evoked a total relief of thermal hyperalgesia, in an experimental model of neuropathic pain,... ameliorating the effect of single cannabinoids," the investigators reported. "Collectively, these findings strongly support the idea that the combination of cannabinoid and non-cannabinoid compounds, as present in extracts, provide significant advantages... compared with pure cannabinoids alone."

Congressional drug warriors like Rep. Mark Souder (R-IN) have long argued that marijuana is not a medicine and that any medicinal compounds in the plant should be isolated or synthesized, as is the case with Marinol, which contains one of the hundreds of cannabinoids found in the plant. The DEA takes a similar approach.

But this latest research only adds to the evidence that that position is mistaken.

A Revealing Remark From the Deputy Drug Czar

Deputy Drug Czar Scott Burns visited Arcata, CA last week to see "America’s grow house capitol" firsthand. After meeting with local authorities and accompanying police on a few marijuana raids, he said this:

…regarding enforcement, Burns seemed to offer a mixed message. While unyielding in asserting that federal law holds marijuana illegal under all circumstances and trumps all state and local medical cannabis laws, Burns nonetheless advised Arcatans to “defer 100 percent good judgment of the people who have been elected and appointed” while motioning to those present in the APD conference room. But most of them are working on guidelines under which medical marijuana may be safely cultivated and dispensed. [Arcata Eye]

I just cannot possibly point out often enough that the conflict between state and federal drug laws doesn't marginalize the value of state-level reforms. The deputy drug czar doesn’t arrive in California with a convoy of DEA super-narcs to slash and burn everything in sight. He can't do that and he knows it, as his remark clearly illustrates.

The federal war on medical marijuana is a political strategy designed to create the appearance of chaos in order to deter other states from implementing medical marijuana laws. Medical marijuana is more available than ever before, notwithstanding sporadic DEA activity in California. Yet we still hear folks suggesting that "the DEA will just swoop in and ruin everything" if we pass new marijuana reforms at the state-level. To be clear, the DEA has ruined many lives, but it has not ruined California's medical marijuana law. That should be obvious to all of us.

The DEA cannot overcome the will of voters and I'm tired of seeing the press and even some reformers helping them pretend they can.

In New Orleans, You Can Get 5 Years in Prison for a Joint of Marijuana

Drug war defenders are indeed fond of pointing out how hard it is to actually get jail time for using drugs. So they should probably stop New Orleans District Attorney Keva Landrum-Johnson before she finishes filling Louisiana's prisons with the pettiest marijuana users she can find:

The flood of new felony charges didn’t target murderers, rapists or armed robbers — they targeted small-time marijuana users, sometimes caught with less than a gram of pot, and threatened them with lengthy prison sentences.

The resulting impact has clogged the courts with non-violent, petty offenses, drained the resources of the criminal justice system and damaged low-income African-American communities, [Orleans Public Defenders Office Chief of Trials Steve] Singer said.

A first-time marijuana possession charge in Louisiana is a misdemeanor punishable by up to six months in prison but typically results in a small fine. A second offense is a felony that can carry up to five years in jail and a third offense up to 20 years.

Some say Landrum-Johnson’s decision to buck history and charge marijuana users with felonies is a political decision meant to assist in her run for Orleans Criminal District Court Section E judgeship. By prosecuting thousands of marijuana possession cases as felonies, Landrum-Johnson can then go to the voters of New Orleans and claim she is “tough on crime,” [Tulane University criminologist Peter] Scharf said. She can point to the massive increase in felony prosecutions under her tenure without explaining that those prosecutions were for people holding joints and not guns, he said. [New Orleans CityBusiness]

Only Landrum-Johnson knows what her motivations are, so I won't belabor that point. She is presiding over a deliberate effort to place large numbers of small-time marijuana users in prison for 5-20 years and there exists no noble motive for doing that. Whether she believes this can help her become a judge, or she possesses a virulent and vindictive animosity towards people who smoke marijuana, or she is merely detached utterly from the consequences of the authority she wields, the result is disastrous and the justification is a fraud.

This, I'm afraid to say, is the reality of America's war on drugs. Everyday our drug policies produce outcomes none of us intended and almost none of us support. The idea of imprisoning nonviolent drug users is so obviously unpopular that the DEA has a whole page arguing that it almost never happens. But will anyone in Washington, D.C. approach the New Orleans DA's office and tell them to stop? Of course not. The very people who so vigorously argue the scarcity of such injustices are the same ones who work tirelessly to conceal them and enable their continuation.

Europe: Selling Grow Equipment Not a Crime, British Appeals Court Rules

A British appeals court has thrown out the convictions of three men charged with conspiracy to aid and abet the production of cannabis for selling hydroponic growing equipment. Prosecutors argued that the men used their hydroponics firm to supply equipment to marijuana growers and should have reasonably foreseen that the equipment would be used to grow marijuana. But prosecutors never showed that anyone had used the equipment to grow marijuana.

Still, that was enough to win convictions at trial court, and the three men, owner David Kenning, employee Paul Blackshaw, and business partner Paul Fenwick, were sentenced to 21 months, probation, and three years, respectively.

But it wasn't good enough for the British appeals court. In his June 24 decision in Regina v. Kenning et al., Lord Phillips, the lord chief justice, ruled that the offenses of conspiracy to aid and abet and counsel the production of cannabis were "unknown to law" and had to be quashed. "There can be no conviction for aiding and abetting, counseling or procuring, unless the offense is shown to have occurred," he said. "It is not an offense to attempt to aid and abet, counsel or procure the commission of an offense."

Britain is in the midst of a marijuana mania, with busts of grows reported every day across the country. According to some estimates, home growers account for between 60% and 80% of the British marijuana supply. While it is legal to sell high-powered lights and hydroponic growing systems -- both of which can be used to grow all sorts of plants -- it is not legal to assist in growing marijuana.

But now, British authorities will have to actually prove that any given equipment supplier knew that the person he sold it do was going to use it to grow marijuana. That should bring some relief to the British grow shop industry.

Europe: Rastafarians Can Smoke Marijuana, Italian Court Rules

The Italian Court of Cassation, the highest criminal court in the land, has thrown out the drug trafficking conviction of a Rastafarian, saying the amount of marijuana he possessed was consistent with the heavy use that comes with his religious beliefs.

Under Italian law, using or possessing small amounts of marijuana is not a crime, but possessing larger amounts can bring a drug trafficking charge. That's what happened to an Italian Rastafarian from Perugia, who was sentenced to 16 months in jail and a $5,000 fine for possession of about 3 1/2 ounces of marijuana.

But the Court of Cassation said the court of first appeal had failed to consider that the man smoked because of his religious beliefs. According to the high court, Rastafarianism allows for smoking up to 10 grams a day. Rastas smoke the herb "with the memory and in the belief that the sacred plant grew on the tomb of King Solomon," the court said. They use it "not only as a medical but also as a meditative herb. And, as such [it is] a possible bearer of the psychophysical state of contemplation and prayer."

The conservative Italian government is not happy. The ruling "shatters the laws which forbid and proscribe penal sanctions for" the use of illegal drugs, an Interior Ministry spokesman said in remarks reported by London's The Independent.

"Today we learn a Rasta is free to go around with drugs. If somebody belonged to a religion which permitted them to eat their children, would they give them the go-ahead, too?" worried right-wing Senator Maurizio Gasparri.

Radical Party Senator Marco Perduca was more concerned about practitioners of Italy's most popular religion. He suggested to ItaliaNews that Italian Catholic pot smokers should find their own saint to worship.

The reaction was also more upbeat at Rototom Sunsplash, Europe's largest reggae festival, which happened to be occurring as the ruling came down. "Finally the principle of religious pluralism is beginning to make headway," Filippo Giunta, president of the festival, said. "This judgment... underlines again the difference between this substance and so-called 'hard' drugs, alcohol included."

The ruling recognizing the spiritual use of marijuana is the first in Europe. Advocates of religious marijuana use have made little headway in the courts in the US, despite devoted efforts, although the Guam Supreme Court ruled in 2000 that a Guamanian Rasta charged with importing marijuana could not be prosecuted because his use was religious.

Europe: Austrian Parliament Okays Medical Marijuana, But Only State Agency Can Grow It

The Austrian parliament approved a bill July 9 that allows for the cultivation of marijuana for medical and scientific purposes, Agence France-Presse reported. But the bill gives the exclusive right to grow marijuana to a health and food safety agency under the control of the Health Ministry.
Maria-Theresien-Platz with Kunsthistorisches Museum and Hofburg Palace in background, downtown Vienna
Still, it is progress, said Michael Bach, president of the Austrian pain studies association OeSG. "Any initiative that makes it possible to develop and provide new drugs for pain therapy is welcome," he said. "Substances drawn from cannabis have been used for medical purposes more and more in the last few years," he added.

It is unclear whether or how quickly this move will result in the provision of medical marijuana to patients or whether it signals a softening of official attitudes toward medical marijuana users. Currently, possession or sales of marijuana will get you six months in prison in Austria.

Chronicle Book Review: "Dying to Get High: Marijuana as Medicine," by Wendy Chapkis and Richard J. Webb (2008, NYU Press, 244 pp., $22.00 PB)

Click here to order this book today!

Phillip S. Smith, Writer/Editor
In "Dying to Get High," sociologists Wendy Chapkis and Richard Webb have written a sympathetic yet academically rigorous account of the contemporary controversies surrounding medical marijuana. They trace the use of marijuana as medicine in the US, its decline as a medicine in the early 20th Century, its removal from the pharmacopeia in 1941 (just four years after it was banned by federal law), the continuing blockage of research into its medical benefits by ideologically-driven federal authorities, and the renaissance of medical marijuana knowledge today, much of it derived from -- gasp! -- patients, not doctors or researchers.

As sociologists, Chapkis and Webb have a keen eye for the broader social, cultural, and political forces surrounding the issue of medical marijuana, from the rise of the pharmaceutical and medical establishments to the "culture war" contempt for marijuana and users among many Americans. But as much as middle America may disdain pot-smoking hippies, it seems that it is marijuana's location on the wrong side of the modern scientific and pharmaceutical discourse that most hinders its acceptance as a medicine.

Pot is a plant, not a pill. It is an herbal medication, not a chemical compound. It is a "crude plant material," not a "pure drug." All of this, Chapkis and Webb suggest, make it difficult indeed for the medical and scientific establishment to wrap its head around medical marijuana. And when scientific bias is coupled with cultural disdain and fear of widespread "abuse," that the federal government remains resistant to medical marijuana is hardly a surprise.

Chapkis and Webb deliver a resounding, well-reasoned indictment of the political and (pseudo) scientific opposition to medical marijuana, and their succinct discussion of the issues surrounding the controversy is worth the price of admission.
But "Dying to Get High" is also an in-depth portrait of one of the country's most well-known medical marijuana collectives, the Wo/Men's Access to Medical Marijuana (WAMM) collective in Santa Cruz, California, and it is here that the authors are really breaking new ground. They go from the big-picture sociology of medical marijuana in the past century to narrowly focus on ethnography of a patient collective, describing in loving detail the inner workings, dynamics, and tensions of a group with charismatic leadership -- Mike and Valerie Corral -- more than 200 seriously ill patients, and the specter of the DEA always looming.

Their account of the emergence and permanence of WAMM is both moving and enlightening. Rooted in the fertile soil of Santa Cruz, already well-tilled by previous social movements such as feminism, gay rights, and AIDS activism, WAMM may only have been possible in a place that friendly to radical movements and that familiar with activism around issues of medical care and social justice. Chapkis and Webb chart its formation, its growth, its conflicts and problems, and the humanity of its suffering members.

They also tell the story of the 2002 DEA raid on the WAMM garden and its devastating impact on members. But that raid and its aftermath were not just a blow to the sick and dying, they were a call to arms, impelling WAMM into ever more overtly political action to protect itself and the broader movement.

More broadly, Chapkis and Webb do a great service by dissecting WAMM, looking at how it works, how it handles dysfunction, and how it provides a service far beyond mere medical marijuana to its members. WAMM is perhaps the model medical marijuana collective, and it has many lessons to offer the interested reader.

Would a WAMM-style collective work elsewhere? Chapkis and Webb emphasize the importance of the cultural and political backdrop in Santa Cruz in making WAMM possible, but I think the very emergence of WAMM as a successful collective makes the possibility of similar collectives coming into being elsewhere all the more likely. After all, even California as a whole is not as radicalized as Santa Cruz or San Francisco, but similar collectives are popping up in Santa Rosa and the San Fernando Valley, among other places.

In any case, Chapkis and Webb provide plenty to chew on, for those who want to pick up some historical knowledge and debating points, for those interested in the genesis of the contemporary marijuana movement, and for those who are pondering the viability of similarly radical approaches to health and self-organizing.

Click here to order this book today!

Medical Marijuana: Seattle Police Seize Hundreds of Patient Files in Raid on Co-op

Seattle police who acted after a bicycle officer smelled marijuana seized files on nearly 600 medical marijuana patients Tuesday, the Associated Press reported. After consulting with prosecutors, police raided the Lifevine cooperative and seized 12 ounces of marijuana and a computer, as well as the patient files.

According to Martin Martinez, who heads the co-op as well as Cascadia NORML, no marijuana was being grown at the scene and no one was arrested. The patient files were on hand because Cascadia NORML was preparing ID cards and needed proof the patients were legitimate, he said.

Under Washington's medical marijuana law, patients can have a 60-day supply of marijuana. The law does not define that quantity, but the state Health Department this month proposed that it be defined as 24 ounces of usable marijuana, and six mature and 18 immature plants. Seattle voters in 2003 passed an initiative making adult marijuana possession offenses the lowest law enforcement priority.

Apparently somebody in the city's law enforcement establishment didn't get the message. A spokesman for the King County prosecutor's office told the AP that police consulted a deputy prosecutor before raiding the co-op. The Seattle police have so far not commented.

Martinez and Seattle medical marijuana attorney Douglas Hiatt said they tried to persuade police and the deputy prosecutor not to raid the premises since the state's medical marijuana law was not being violated. But that didn't work.

The police "have a heck of a lot of patient records I don't think they should have," said Hiatt. "For one thing, those records are protected under federal privacy laws. If you're a medical marijuana patient, you don't want the police to know who you are or where you live, and this is why -- because you don't get treated very well."

Washington ACLU attorney Alison Chinn Holcomb told the AP there was no evidence the co-op was growing or providing marijuana and no information so far revealed that would justify seizing patient records. "These are very sick people with very serious conditions, and we're sure none of them want the nature of those conditions made available to the public or to anyone who doesn't have a valid need for it," she said.

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