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Trapped Trooper Kills Minnesota Woman Fleeing Drug Bust

Editor's Note: This year, Drug War Chronicle is trying to track every death directly attributable to domestic drug law enforcement during the year. We can use your help. If you come across a news account of a killing related to drug law enforcement, please send us an email at psmith@drcnet.org.]

Minnesota State Patrol cruiser (image via Wikimedia)
A Minnesota woman was shot and killed by a state trooper Saturday as she dragged him with her vehicle while attempting to flee a traffic stop that would have resulted in a drug bust. The woman, Debra Doree, 48, becomes the 34th person to be killed in domestic drug law enforcement operations so far this year.

According to the State Patrol,  the incident began as a routine traffic stop on I-94 Saturday afternoon when the unnamed trooper pulled Doree over for an "equipment violation." The trooper noticed a large amount of "a white crystalline substance" during their interaction and was investigating when Doree jumped back into her vehicle and tried to flee. The trooper's arm got tangled in the steering wheel as she drove off, and she dragged the trooper approximately 30 yards before he was able to unholster his weapon and shoot her. The trooper received minor injuries.

The white substance was later confirmed to be "a very substantial amount of narcotics," said State Patrol spokesman Lt. Eric Roeske. It is not clear what the substance was.

Doree had no criminal record in Minnesota, but her husband, Scott Doree, 53, has numerous convictions, including several for possession of methamphetamine and marijuana.

The unnamed trooper has been put on paid leave pending an investigation of the incident by the state Bureau of Criminal Apprehension, which is charged with investigating officer-involved killings in the state.

St. Paul, MN
United States

The 2011 National Drug Control Strategy: Drug Policy on Autopilot [FEATURE]

The Office of National Drug Control Policy (ONDCP -- the drug czar's office) Monday released this year's version of the annual guiding federal document on drug policy, the 2011 National Drug Control Strategy, and there's not much new or surprising there. There is a lot of talk about public health, but federal spending priorities remain weighted toward law enforcement despite all the pretty words.

http://stopthedrugwar.com/files/kerlikowske-200px.jpg
Drug Czar Gil Kerlikowske -- captured by the drug war establishment
The strategy identifies three "policy priorities": reducing prescription drug abuse, addressing drugged driving, and increased prevention efforts. It also identifies populations of special interest, including veterans, college students, and women with children.

The strategy promises continued strong law enforcement and interdiction efforts, including going after the opium and heroin trade in Afghanistan and cooperating with Mexican and Central American authorities in the $1.4 billion Plan Merida attack on Mexican drug gangs.

"Drug use affects every sector of society, straining our economy, our healthcare and criminal justice systems, and endangering the futures of our young people," said ONDCP head Gil Kerlikowske in introducing the strategy. "The United States cannot afford to continue paying the devastating toll of illicit drug use and its consequences."

This is all standard stuff. One thing that is new is ONDCP's felt need to fight back against rising momentum to end the drug war, or at least legalize marijuana, and rising acceptance of medical marijuana. The strategy devoted nearly five full pages to argumentation against legalization and medical marijuana.

"Marijuana and other illicit drugs are addictive and unsafe," ONDCP argued in a section titled Facts About Marijuana. "Making matters worse, confusing messages being conveyed by the entertainment industry, media, proponents of 'medical' marijuana, and political campaigns to legalize all marijuana use perpetuate the false notion that marijuana use is harmless and aim to establish commercial access to the drug. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction."

Just to be clear, ONDCP went on to say flatly "marijuana use is harmful," although it didn't bother to say how harmful or compared to what, nor did it explain why the best public policy approach to a substance that causes limited harm is to criminalize it and its users.

ONDCP also argued that despite medical marijuana being legal in 16 states and the District of Columbia, "the cannabis (marijuana) plant is not a medicine." Somewhat surprisingly, given that the DEA just days ago held that marijuana has no accepted medical use, the national drug strategy conceded that "there may be medical value for some of the individual components of the cannabis plant," but then fell back on the old "smoking marijuana is an inefficient and harmful method" of taking one's medicine.

"This administration steadfastly opposes drug legalization," the strategy emphasized.  "Legalization runs counter to a public health approach to drug control because it would increase the availability of drugs, reduce their price, undermine prevention activities, hinder recovery support efforts, and pose a significant health and safety risk to all Americans, especially our youth."

It was this section of the strategy that excited the most attention from drug policy reformers. They lined up to lambast its logic.

"It is encouraging that ONDCP felt a need to address both medical marijuana and general legalization of the plant in its 2011 strategy booklet, which was released today," noted Jacob Sullum at the Reason blog. "It is also encouraging that the ONDCP's arguments are so lame… The ONDCP never entertains the possibility that a product could be legal even though it is not harmless. Do the legality of alcohol and tobacco send the message that they are harmless? If you oppose a return to alcohol prohibition, should you be blamed for encouraging kids to drink and making life harder for recovering alcoholics? ONDCP director Gil Kerlikowske may have renounced the use of martial rhetoric to describe the government's anti-drug crusade, but he still manages to imply that reformers are traitors whose 'confusing messages' are undermining morale in the nation's struggle against the existential threat of pot smoking."

"It's sad that the drug czar decided to insert a multi-page rant against legalizing and regulating drugs into the National Drug Control Strategy instead of actually doing his job and shifting limited resources to combat the public health problem of drug abuse," said Neill Franklin, director of Law Enforcement Against Prohibition. "Obama administration officials continually talk about the fact that addiction is a medical problem, but when our budgets are so strained I cannot understand why they're dumping more money into arrests, punishment and prisons than the Bush administration ever did. The fact is, once we legalize and regulate drugs, we will not only allow police to focus on stopping violent crime instead of being distracted by arresting drug users, but we will also be able to put the resources that are saved into funding treatment and prevention programs that actually work. Who ever heard of curing a health problem with handcuffs?"

Some reformers offered a broader critique of the strategy.

"Other than an escalating war of words on marijuana, it's all pretty much the same thing as last year," said Bill Piper, director of national affairs for the Drug Policy Alliance. "There's nothing really new here, except they are a bit more punitive this year," he added, citing the pushback on marijuana, the call for a drugged driving offensive, and a call to encourage workplace drug testing. "Last year, it was more about reform, but this year ONDCP is up to its old tricks again. Whatever window they had to turn over a new leaf is closed; Kerlikowske has been fully captured by the drug war establishment."

The Obama administration could pay a price for its intransigence on drug policy, said Piper.

"They badly underestimate the American people and the drug reform movement, especially on medical marijuana," he said. "It's not just the strategy, but the DEA refusal to reschedule and the Department of Justice memo, too. They are talking about coming out big against medical marijuana, but I think they know there is little they can do. In a sense, this is an act of desperation, a sign that we are winning. First they ignore you…"

The veteran drug reform lobbyist also professed concern about the drugged driving campaign. The strategy sets as a goal a 10% reduction in drugged driving (although it doesn’t even know how prevalent it is) and encourages states to pass zero tolerance per se DUID laws that are bound to ensnare drivers who are not impaired but may have used marijuana in preceding days or weeks.

"We are concerned about getting states to pass those laws," he said. "They are problematic because people can go to jail for what they did a week ago. We're also concerned about the push for employee drug testing."

Piper's overall assessment?

"There's not a lot of new policies there, and that's disappointing," he said. "This is a drug policy on autopilot; it's just a little more aggressive on the marijuana issue."

Washington, DC
United States

Marijuana Legalization Initiatives Filed in Colorado [FEATURE]

A coalition of Colorado and national drug reform groups Friday filed eight initiatives designed to amend the state constitution to legalize marijuana. It was the opening move in an effort to put the question to Colorado voters on the November 2012 ballot.

The first steps have been taken toward letting any Colorado adult grow six of these legally. (Image courtesy the author)
The groups lining up behind the initiatives are SAFER, Sensible Colorado, the Drug Policy Alliance, Law Enforcement Against Prohibition, the Marijuana Policy Project, NORML, and Students for Sensible Drug Policy, as well as prominent Colorado marijuana attorneys and members of the state's thriving medical marijuana industry.

While the initiatives vary slightly from one another -- part of a bid by organizers to ensure they come up with the best language and pass the scrutiny of state election officials -- they all have as their core the legalization of the possession of up to an ounce by adults over 21, the legalization of the growing of up to six plants and possession of their yield, and the creation of a system of regulated commercial marijuana production and sales. (See the draft language for the base initiative here.)

The initiatives do not allow for public consumption. Nor do they protect "stoned driving" or protect workers from being fired by employers who object to their marijuana use.

"This is basically eight variations on a single initiative," said SAFER's Mason Tvert. "One version has industrial hemp, one doesn't. One version has specific language dealing with Colorado tax law, one doesn't. But otherwise, there is virtually no difference."

The initiatives now head to the state's Title Setting Review Board, which will determine whether they meet the state constitution's single-subject requirement and come up with titles for the initiatives. The initiatives could be revised based on issues and concerns that might arise during review with board staff, Tvert said.

"We want the best possible ballot title," he said. "They will create a draft title, and then we will be able to submit what we think, then there is a hearing to determine what the title should be. This is the very beginning of a long process. If one or two get shot down, we still have other possibilities. If one gets a ballot title we don't like, we still have the ability to re-file something else."

"We starting drafting this back in January," said Sensible Colorado's Brian Vicente. "We've seen a historic and unprecedented coalition of every major drug policy reform group involved in the drafting. I'm not aware of anything like that before. And SAFER and Sensible Colorado have been active in reforming marijuana laws full-time since 2004 and 2005, respectively. We have a giant network of collaborators on the ground."

But not everybody is happy. In an ominous harkening back to last November's election, a "Stoners against Prop. 19"-style opposition has already emerged. The Boulder-based Cannabis Therapy Institute (CTI), which is working on its own Relegalize 2012 initiative, came out swinging in a press release last Friday. Calling the coalition behind the initiatives "a conservative faction of national and local drug policy reform groups," the institute's Lauro Kriho said their initiatives would "attempt to undermine" advances by the marijuana movement in the state.

She criticized the initiatives on a variety of grounds, saying they did not provide protection to workers, tenants, or marijuana users who drive. She said the initiatives "appeal to law enforcement" and criticized versions that included a 15% excise tax. She also complained that the initiatives had been filed without broader feedback.

"I'm not sure why they did this without telling anybody," said Kriho. "Even the legislature gave us more notice to comment on their proposed legislation than they did. It really shows their bad faith."

But both Tvert and Vicente said that Kriho had been sent a draft of the base initiative a week before they filed it. A copy of the draft is available on the CTI web site.

"This opposition from within the movement is certainly frustrating, and we don't want to see the movement fractured," said Tvert. "We hope that anyone who supports ending marijuana prohibition will be comfortable with this initiative and be part of this broad coalition moving forward. We've reached out extensively to various groups in the community, including marijuana business leaders and organizations, and including CTI."

It's difficult to tell how much support Kriho and her critique have in Colorado's marijuana community, but Vicente seemed more bemused than concerned about it.

"I think the Colorado marijuana community is generally quite united," he said. "Most people are very supportive of this effort. We made an incredible outreach to different communities and solicited comments from grassroots activists, lawyers, and elected officials, and did our best to incorporate their concerns in the draft language. We're still requesting suggestions and we could still change the language," he said.

In the meantime, organizers are preparing for a signature gathering drive to begin toward the end of June. They will have six months to gather 85,000 valid voter signatures, and they say their goal is to hand in 130,000 or more.

And they are beginning to look for money. "We're certainly hoping to raise money, but we haven't pursued significant funding until we have an initiative in place," said Tvert. "We haven't received any significant money, but we haven't been soliciting it yet, either."

Still, the SAFER/Sensible Colorado initiative effort appears to have enough support to make it onto the ballot in 2012. Other initiative efforts, such as CTI's, can also try to make the ballot. It looks like it's going to be an interesting next 18 months in Colorado pot politics.

Denver, CO
United States

Colorado Marijuana and Driving Bill Fails

Like a vampire rising from the grave, the effort to impose a per se drugged driving law on Colorado motorists came back to life on Friday, only to have a stake driven through its heart Monday, killing it once and for all -- at least for this session of the state legislature.

They will still have to prove the high driver is actually impaired in Colorado. (Image via Wikimedia.org)
As passed by the House, the bill, House Bill 1261, would have set a blood THC level of five nanograms per milliliter, above which the vehicle operator is legally presumed to have been intoxicated. Had the bill passed in its original form, only proof that the driver's blood THC level exceeded the cutoff -- not any proof of actual impairment -- would have been required to win a drugged driving conviction.

But that part of the bill went down in flames in April in the Senate Judiciary Committee. Some legislators had concerns over whether the cutoff was too high or too law, while activists were concerned that any drugged driving bill not be a per se bill. Then, as legislators were pondering the issue, Westword magazine pot critic William Breathes took the blood test. Hours after last smoking, and with no evidence of impairment, Breathes tested at 13 nanograms. Shortly after that intervention, the committee killed the per se language and turned the bill into a study bill.

Many breathed sighs of relief, but then, on Friday, the Senate Appropriations Committee took up the bill. With little discussion, the committee gutted the study language and reinserted the original per se 5 nanogram language.

But Monday evening, a divided Senate rejected the revived per se language, then killed the entire bill on a 20-15 vote. It will be back to the drawing board for the legislature.

Driving under the influence of marijuana or other drugs is still illegal in Colorado, but without the passage of this bill, prosecutors will actually have to prove impairment, not just come up with a magic number.

That was fine with Sen. Morgan Carroll (D-Aurora). "If you're going to have a shortcut to presuming somebody is impaired, let's make sure the science is established," she said.

Denver, CO
United States

Colorado Drugged Driving Bill Generating Confusion and Concerns [FEATURE]

A bill aimed at stoned driving currently working its way through the Colorado legislature would set a blood THC level above which drivers would either be presumed to be impaired or deemed impaired per se, meaning the simple fact that their THC levels surpassed that threshold would make them guilty of DUID with no other evidence needed. The state's medical and recreational marijuana users and advocates are apprehensive -- although to varying degrees -- but they are also confused.

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The apprehension is over fears such a law could unjustly impact medical marijuana patients and recreational users who are not actually impaired; the confusion is because the bill, House Bill 1261, contains two different responses to drivers' testing above the specified level -- at this point, five nanograms of THC per liter of blood.

"I don't even know what the hell that means," sputtered Boulder attorney Lenny Frieling, who has tracked the bill closely as it advances. "It's internally inconsistent. If they don't fix this, I can't wait to take a case on it," he said.

The bill, introduced by Reps. Mark Waller (R) and Claire Levy (D) passed out of the House Judiciary Committee a week ago. The contradiction was supposed to have been resolved in the committee, but that didn't happen.

"As of today, we still have both in there," said Freiling. "Levy was unable to get someone on the committee to remove the per se language for now, so now she's looking to change the threshold level from five nanograms to eight."

There is apprehension about both any effort to set a THC level defining impairment and about the per se language in particular. That was evident at last week's hearing, where some patients and advocates lashed out at the bill.

"Clearly, we see it as a witch hunt on medical marijuana patients," Laura Kriho, a spokeswoman for Colorado's Cannabis Therapy Institute, told the committee.

The per se language drew the attention of patient Max Montrose, 22. "They have the potential of incriminating thousands of people who are innocent," he testified.

"While the science that is out there seems to support this five nanogram limit, we have concerns that patients who use a fair amount of marijuana legally may be caught up in this dragnet if they have high THC levels," said Brian Vicente of Sensible Colorado. "That's not an insignificant concern in a state where 2% of the population hold medical marijuana cards."

Other activists were a bit more sanguine. "Some people are fearful that patients in states like Colorado would constantly have THC levels close to or above the threshold simply by their self-medicating," said Paul Armentano, deputy director of NORML and arguably the drug reform movement's leading expert on drugged driving issues. "But we don't have the data to establish that is the case right now. There is very limited data to support that supposition."

Armentano pointed to the experience of other states that have both medical marijuana and per se marijuana DUI laws. "Rhode Island, for example, has a zero tolerance per se law, yet we do not get a lot of complaints from patients there saying police are abusing the law," he said.

"There's a lot of confusion about what this bill will actually mean," said Mason Tvert of Denver-based SAFER (Safer Alternatives for Enjoyable Recreation). "It's still being tinkered with, and amendments are being proposed, so there are likely to be some changes in the bill, but I don't really think it's going to change anything. It's already illegal to drive under the influence of marijuana, and it will still be illegal. This seems to be more of a way for the politicians to say they're doing something about this."

At least a dozen states have per se DUID marijuana laws, all but three of them zero tolerance laws, meaning any THC presence is grounds for a conviction. In two states, Nevada and Ohio, the per se threshold is set at two nanograms, while in Pennsylvania, it is set at five.

"Plenty of people in Pennsyvlania use marijuana, and we just have not seen that many complaints or criticisms of that law from the cannabis community there that the law is being abused or routinely netting cannabis consumers," said Armentano.

Setting a five nanogram threshold for marijuana impairment is reasonable, said Armentano."The scientific evidence shows that there is a rational basis to infer that an individual who tests positive at five nanograms may be under the influence of marijuana," he said. "That's not to say there should be a one size fits all standard. That's why it's so important to delineate between a per se law and a law that allows prosecutors, the defense, and the jury to assess the totality of the circumstances."

As to how long after smoking it takes for blood THC levels to dip beneath five nanograms, well, that depends, said Armentano. "Do you have residual levels? What was the potency of the marijuana?" he asked. "We know that among occasional users, blood levels fall below five nanograms within one to three hours after inhalation, but that's with relatively low potency marijuana."

Less is known about chronic pot smokers, but Armentano cited a NIDA-backed study that found out of 23 subjects, only one tested above five nanograms after 24 hours and only two more tested above one nanogram. "We can't say definitively how much time it would take, but based on the available evidence, most people would be below five nanograms within a few hours after last smoking."

While NORML has spent some resources on influencing the bill, it officially neither opposes nor supports it, Armentano said. "Our focus is to make sure this legislation is not ultimately a per se law, but one that simply sets guidelines that can be used in determining impairment," he said.

There is still time to do that. While the bill seems likely to pass in some form, it still faces another committee vote in the House, and the Senate has yet to take it up. That means there is still time to try to influence the
final outcome.

"The one area where we think we can get some movement is to target our lobbying and testifying to try to push for a rebuttable presumption in the law that would allow patients to put forth their argument that if they use marijuana in a certain way, they shouldn't be convicted," he said. "We would encourage concerned patients and advocates to reach out to the legislature and push for the rebuttable presumption -- that's damage control for a bill that's going to pass."

But the still existing per se language now presents another target for advocates and activists. In the end, it may come down to some legislative horse-trading. Will the legislature raise the threshold limits, but keep the per se language, or vice versa?

Denver, CO
United States

Washington Lawmakers Consider Limit on THC Blood Levels

Location: 
WA
United States
Not to be outdone by legislators in Colorado, Washington state officials are considering setting a legal limit for the amount of THC in a driver's blood. Nevada and Ohio have two-nanogram limits for THC. Pennsylvania has a five-nanogram "guideline," but not a limit. Twelve states have a zero-tolerance policy for driving under the influence of any illicit drug, including marijuana. A group of 11 international scientists published a comprehensive study on the effects of THC on driving ability. They concluded that drivers do not pose a crash risk until they reach between 10-20 nanograms of THC per milliliter. They also determined that 18-20 nanograms is the equivalent of a blood-alcohol content (BAC) of .08, the current legal limit in most U.S. states.
Publication/Source: 
Seattle Weekly (WA)
URL: 
http://blogs.seattleweekly.com/dailyweekly/2011/02/washington_law_thc_blood_level_motorists.php

Warrantless GPS Tracking Facing Fourth Amendment Challenges [FEATURE]

GPS satellite
by Clarence Walker

[Editor’s note: This feature story is part two of an occasional series involving electronic surveillance and its impact on the Fourth Amendment in drug investigations and other criminal matters in the United States. Read the first installment in the series here. Clarence Walker is a Houston-based criminal justice journalist. He can be reached at cwalkerinvestigate@gmail.com.]

Recent federal and state court decisions that overturned narcotic convictions of suspected drug dealers as a result of law enforcement using warrantless GPS tracking devices to watch suspects have triggered an intense debate over the Fourth Amendment, which provides citizens against unreasonable search and seizures.

The GPS controversy is at the center of a raging legal discussion over privacy rights: Should law enforcement  be allowed to install a GPS on a vehicle without a warrant during criminal investigations to track a suspect’s movement 24-7, and does warrantless tracking violate a person’s privacy although they are being watched by the police in public?

Two significant 2010 decisions on privacy rights under the Fourth Amendment highlight the continuing struggles that courts around the country are having around GPS tracking. In August, the DC 9th Circuit Court overturned the conviction of Antoine Jones based on police using a warrantless GPS to connect Jones to places containing several kilos of cocaine. Jones was sentenced to life without parole at Supermax federal prison in Florence Colorado. (Read more about the Antoine Jones case here.)

Legal experts say this case might go before the US Supreme Court. Federal prosecutors were denied an en-banc hearing in November to have a full court to throw out the 9th Circuit decision, and they have until February 14 to petition the Supreme Court to  consider their appeal of the Jones case. In the meantime, Jones continues to sit in prison.

"When the court denied the government an en-banc hearing, this sets up the Antoine Jones case for the Supreme Court to decide if GPS tracking violates the Fourth Amendment. The importance of the Jones case is that it would be the first time the Supreme Court would decide GPS surveillance in relation to search and seizure," said Stephen Lecklar, who wrote the appeal that reversed Jones conviction.

In a second case, Delaware v. Holden, on December 28, Delaware Superior Court Judge Jan Jurden reversed a suppression hearing from a lower court involving drug charges against Michael Holden. Holden, a Newark resident, was stopped by police carrying 10 pounds of marijuana. The evidence showed that prior to arresting Holden, police used GPS tracking without a warrant to follow him for 20 days.

Antoine Jones remains in federal prison pending, he hopes, one last government appeal. (Image courtesy the author)
According to press accounts, Deputy Attorney General Brian Robertson argued that information from the GPS that police attached to Holden’s vehicle was only a part of a larger "multifaceted case" against the marijuana trafficker. But Holden’s attorney, John Decker, told the court that "the 20-day long use of the GPS amounted to an unreasonable search under the state constitution and violated his client's privacy without probable cause."

"The advance of technology will continue ad infinitum," said Judge Jurden in throwing out the charge. "An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there’s nothing to protect our citizens from being tracked 24-7. And if no warrant is required for such surveillance any individual could be tracked indefinitely without suspicion of any crime by police without probable cause."

Meanwhile, Antoine Jones remains frustrated over the fact of being unable to be released on bond although his conviction has been reversed and the appellate courts this past November also denied the feds to an en-banc hearing to strike down the ninth circuit original decision.

"We are pleased that the Court of Appeals declined the Government's request for en banc reconsideration and reaffirmed the constitutional concerns identified by the ninth circuit," Jones' appellate attorney, Stephen Leckar, said in an email sent to reporters covering the case.

But Jones questions why he's still in prison."My conviction has been overturned, the en-banc hearing was denied,  the appeal process is over but I am still in this hellhole," he wrote to the author. "The feds' last shot is to petition the US Supreme Court, but the experts have said that only one-percent of petitioners are chosen for review."

"The court should release Mr. Jones on bond," said California attorney Diane Bass, who handles federal drug cases.

Chances for Jones's release on bond pending the government's next course of action are unclear. "The issues that a court looks at when deciding whether to release someone on bond are, is the defendant a flight risk or a danger to society," Bass said. "In an appeal situation, they also look at whether there are viable issues on appeal. Drug cases carry a presumption of flight, because of the mandatory minimum sentences which the defendant has the burden of rebutting. And the court would require an equity of $100,000 or more. I would say that since there's a possibility the Supreme Court will deny certiorari in this case, the court would be wise to release Mr. Jones on appeal."

http://www.stopthedrugwar.org/files/jjurd_10.jpg
Delaware Superior Court Judge Jan Jurden
While Jones sits in federal prison pending the resolution of his case, the thorny issue of warrantless GPS tracking and the Fourth Amendment continues to vex the courts. When the issue finally arrives at the Supreme Court, it will have to decide first whether GPS tracking constitutes a "search" under the Fourth Amendment, and second whether long-term, continuous GPS tracking without a warrant amounts to an illegal search.


"There's no clear Supreme Court guidance on this issue," said John Verdi, a senior counsel at the Electronic Privacy Information Center, a DC-based advocacy group. "Courts have left the states to decide what should be done using their own state constitutions."

Some states, like Texas, have specific requirements law enforcement officers must meet to obtain a warrant for GPS tracking. What isn't too well publicized is that an officer can ask the court for a tracking order based on reasonable suspicion as opposed to requesting a warrant which require a higher burden of probable cause.

Steve Baldassano, a senior-level prosecutor with the Harris County District Attorney Office in Houston explained:  "A tracking order requires 'reasonable suspicion.' If it's okay for a cop to follow someone in a car, it's not that much worse if the cops watch a person using electronic signals."

An unidentified Houston Police Department narcotic officer offered this blunt view: "Theoretically, a person can have a GPS tracker placed on their vehicle for life as long as the investigator has reason to believe the person will commit criminal offenses."

Whatever the realities on the street, the state and federal courts have split on warrantless GPS tracking and related issues. Courts in Wisconsin and Virginia have supported warrantless tracking, while courts in New Jersey, New York, Oregon, and Washington have ruled against it. With the federal appeals court also split, the issue seem ripe for Supreme Court review.

In the meantime, big brother is staying busy. Maryland state officials announced last year they would implement a statewide network in 2011 to collect data from automatic license plate readers. "The license plate reader provides the plate number, exact time, and the GPS location of a vehicle upon sight," the Muckraker blog noted.

With technological innovation fueling the rise of the surveillance state, preserving one's privacy from the state looks to be ever more difficult. By the time the Supreme Court has sorted out warrantless GPS tracking, there will doubtless be some new form of surveillance that we will have to be litigated.

Impaired Driving Bill Draws Opposition From Medical Marijuana Users

Location: 
MT
United States
Montana's House Judiciary Committee heard testimony on Representative Ken Peterson’s bill which aims to make it illegal to drive while on any dangerous drugs "per se." House Bill 33 also includes metabolite, or any molecule left in the body, yet excludes prescription medication if taken under doctors orders. "This bill makes sure you can’t drive while impaired under the influence of drugs and I don’t think this bill requires any showing of impairment, it deems somebody to be on the wrong side of the law merely for having a few molecules of certain substances in their blood," said medical marijuana patient Barbara Trego.
Publication/Source: 
KFBB (MT)
URL: 
http://www.kfbb.com/news/local/Impaired-Driving-Bill-Draws-Opposition-From-Medical-Marijuana-Users-114259589.html

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

Special to the Chronicle by Clarence Walker

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

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

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

The DC ruling in US v. Lawrence Maynard came in the case of two conjoined defendants, Lawrence Maynard and Antoine Jones, who were convicted of cocaine conspiracy offenses in the DC district court. Jones, the owner of a Maryland night club, had been targeted by the FBI and other federal and state police agencies as a major player in a multi-million dollar cocaine ring with ties to a Mexico-based organized crime group. Investigators said Jones and his co-conspirators distributed cocaine throughout the DC metro area.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

Washington, DC
United States

Prop 19: What Went Right, What Went Wrong [FEATURE]

In the week since Proposition 19, the California marijuana legalization initiative, was defeated 46% to 54%, the post-mortem analyses have been coming down fast and furious. Even in defeat, Prop 19 continues to generate mountains of verbiage, and advocates will tell you that's just one of the positive outcomes generated by the initiative.

As the polls closed, Oaksterdam waited.
Indeed, the post-election output on Prop 19 has been stunning. Russ Belville of NORML has 10 Lessons Learned from Marijuana Election Defeats, while the Christian Science Monitor has Three Reasons Prop 19 Got the Thumbs Down (federal government opposition, midterm voter demographics, and fear of regulatory gridlock), and Pete Guither at the Drug War Rant has his own Prop 19 Wrap-Up.

Harvard economist Jeffrey Miron, a libertarian and academic advocate for legalization, asks Why Did California Vote Down Pot? Miron answers that Prop 19 overreached with its arguments (on tax revenues and ending the Mexican drug war) and its provisions (limiting employers' rights). In Post-Prop 19, the Los Angeles Times, in a piece whose tone hints at support for legalization in principle, blames initiative organizers for presenting the public with "a badly drafted mess."

Steve DeAngelo of the Harborside Health Center in Oakland warns that Voters Won't Approve Legal Pot Until Advocates Earn Their Trust, and argues the movement should be concentrating on developing a well-regulated and demonstrably safe medical marijuana cultivation and distribution system to allay the fears of parents and others concerned about the Wild West aspects of California's dispensary system. Interestingly, the 11 counties surrounding San Francisco Bay, where local authorities have most promptly moved to put regulations in place, are the only counties where a majority of voters did vote yes on 19.

Pollwatcher Nate Silver wonders Are Parents Just Saying No to Marijuana Legalization?, pointing to national survey data suggesting that being a parent drops support for legalization by 10 to 15 percentage points. Atlantic magazine business and economics editor Megan McArdle reprises ongoing arguments in Will Pot Be Legal? and sides with Silver on the role of parents.

And that's just a representative sample of the debate over why Prop 19 lost. For Prop 19 supporters, that ongoing argument is just more evidence that the measure has caused a seismic shift in the political discourse on pot.

"We started putting out the message two months ago that Prop 19 is a winner," said Drug Policy Alliance head Ethan Nadelmann. "It transformed the debate. Compare where we are now to where we were two years ago. There is a consensus that between the messaging that came out, the positive impact on the public dialogue, the mainstream players coming out with endorsements, and getting more votes than Meg Whitman or Carly Fiorina, Prop 19 was a major step forward," he said.

"What was significant was George Soros coming in with that contribution and his op-ed," Nadelmann continued. "Soros has been a major supporter of marijuana decriminalization, but he was always ambivalent about legalization, in part because of concerns about the impact on young people. Prop 19 being on the ballot and his being asked by so many people what he was going to do encouraged him to think more deeply about it. That he decided to write that piece and make that contribution, even in late October, when he knew the odds of winning were not great, is important for the future."

Even though Soros didn't come through until the final week of the campaign, and the campaign struggled financially (even while outdistancing the opposition), Nadelmann didn't see that a reason the measure lost. "I'm skeptical that substantially more money earlier on would have clinched this," he Nadelmann. "What was really problematic was the turnout. Young people did not show up en masse."

He wasn't the only one looking at turnout. "In a midterm election year like this with a Republican sweep nationally, we didn’t see the types of voters who favor marijuana legalization coming to the polls," said Mike Meno, communications director for the Marijuana Policy Project.

"The only way to respond to a loss is to learn from it," said NORML founder Keith Stroup. "There were two or three specific areas where our opponents were effective, specifically on the employer-employee issue. You had the Chamber of Commerce saying employers couldn’t fire someone coming to work stoned, and some of the law enforcement folks got traction with the idea that roads would be filled with stoned drivers. We have to be clear that if someone is stopped for driving while impaired and they pass the alcohol test, that police have the right to take them in for a drug test," he said.

That position isn't likely to sit well with the veteran stoner demographic, who will argue that marijuana really doesn't impair driving ability that much among experienced tokers. Better to test for actual impairment than the presence of metabolites, especially if impairment is assumed under a "zero tolerance" DUID law, but that's going to be a hard sell for the general public.

"I am among those people who felt that even though we lost, Richard ended up doing a good thing for the movement," said Stroup. "I don't think legalization was ever taken seriously by politicians and the press until Prop 19 came along. It was probably worth the three or four million dollars spent to force marijuana legalization into the mainstream."

"One of the things that really caught on with the opposition and helped spread seeds of doubt in voters' minds was the local control aspect, allowing different counties to decide whether to regulate," said Meno. Ironically, that provision was a concession designed to blunt potential opposition by allowing more conservative areas to opt out.

"The polling shows that workplace concerns and fears of driving under the influence helped motivate the no vote," Meno added. "Those same concerns apply to alcohol, but they're not arguments for making alcohol illegal. With sensible public education, these issues can be addressed. We need to deal aggressively and proactively with the issues around driving while impaired so there isn't the really poor media coverage we saw this time. That gave people the ability to leap from legalization to impaired driving. We need to address these fear-based arguments," he said.

Even the Prop 19 campaign now says maybe the workplace language wasn't a good idea. "I remember having an uneasy feeling about the employment part, but one of our more conservative consultations was for it," said Richard Lee, the man behind Prop 19. "I should have listened to my gut, but it's hard not to want employees to be free from uncalled for drug testing."

"This result was predictable from the early polls," said Dale Gieringer, head of California NORML, which endorsed Prop 19 but was skeptical about its prospects from the beginning. "One of the problems was that legalization scores in the low fifties in the polls, and you need it in the sixties to pass. In any initiative, there are particulars that people object to, and support begins to erode, and this was criticized from all sides."

The California public is ready to go along with legalization if presented with a plan that makes sense and will actually do what it promises, but Prop 19 wasn't that plan, Gieringer said. "The closer you looked at Prop 19, the less it offered in immediate benefits to the state," he argued.

"As soon as any city or county tried to implement 19, they would get hit with a federal injunction, which the feds would certainly win," Gieringer said. "So, no tax and regulate, no tax revenues, and you get a bunch of lawsuits with the feds. It wasn't going to solve the drug war in Mexico, it wasn't going to save all that much in arrests, especially since Schwarzenegger signed that decriminalization bill, and a lot of marijuana offenses have to do with exporting out of state, and that would remain. Prop 19 would have been the first step in a much larger battle going on for years before you really get those benefits, and voters didn't trust that those benefits would actually come."

"We've lost a lot of battles at NORML," Stroup laughed wryly. "But what is important when you lose is what you learn. We came away from California knowing we can do it better, and we will do it better. I think in 2012, the whole West Coast will be proposing that we legalize marijuana."

Richard Lee and his crew are already making plans to put together a new initiative in 2012, but if California's recent history is any indicator, they are unlikely to be the only ones. If one or more of them make it to the ballot in 2012, they better have learned the lessons of 2010.

CA
United States

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